After more than 30 years of practising law, Malcolm knew he had a problem. He worked too much at the expense of his family, bringing home the animosity and conflict often associated with a successful litigation practice.

All the bravado and invincibility of a young lawyer had given way to the sober second thought of a man who had dedicated his life to his career and found the price was too high.

“Something happened in my life that caused me to pause and reflect,” recalls Malcolm (not his real name), speaking on condition of anonymity. “I realized that, year after year, there had been an erosion of the connection with my wife and my children, and I didn’t want to do that any further.”

In September, Malcolm enrolled in a 12-week workshop for lawyers in the Vancouver area who are burned out and suffering from a lack of balance in their lives. “Some would consider it a sign of weakness,” he says. “Among those who recognize that balance is an important issue, they would probably applaud it.”

The price of inaction is high: lawyers have higher rates of divorce, illness and suicide than other professionals; are twice as likely to succumb to alcohol abuse; are three times more likely to suffer depression and other forms of mental ill health. “Lawyers are burning out. They are getting sick. They are suffering and they are dying,” says John Starzynski, executive director of the Ontario Lawyers Assistance Program.

“Young lawyers are saying to us, ‘This isn’t what we signed up for. We didn’t know we had to give our lives away in order to practise law.’”

Battling burnout

Burnout is a symptom, not a syndrome. The root cause is the inability to set clear boundaries with clients, the firm and outside expectations, according to Robert Bircher, program coordinator at the Lawyers Assistance Program of British Columbia.

Too often, young lawyers are so eager and enthusiastic, they lose their self-care. It takes commitment to maintain work/life balance in a profession that often rewards workaholics.

He developed the 12-week workshop “Creating Balance Through Healthy Boundaries,” which is being offered for the first time this fall, in Vancouver.

Participants learn to set boundaries and establish strategies for saying “no” when those boundaries are crossed. The goal is to make more time for themselves and the things they love.

“Many lawyers are people pleasers. They let their boundaries go and their lives get out of balance,” says Bircher. “Too often, young lawyers are so eager and enthusiastic, they lose their self-care. They drop away from their friendships and physical activities. That’s unhealthy.”

In fact, the toll begins early: law students are more likely to suffer depression than students in other disciplines. “There’s something about law that is depressogenic,” says Bircher. “Law is about conflict and a lot of lawyers don’t deal with that well. If you’re prone to depression, law is going to make it worse.”

Sometimes, it’s difficult not to bring that sense of conflict home.

“It’s hard to turn that switch off,” Malcolm explains. “You have to work hard to lose that conflict mentality, because your family doesn’t want you to be a lawyer when you’re at home.”

Strategies for a balanced life

It takes commitment to maintain work/life balance in a profession that often rewards workaholics. Follow these tips from those who’ve been there:

• Eat well and stay physically active. Work out at noon, even if your firm frowns on it.
• Don’t let go of friends and social networks. Have a mentor or confidant you can talk to daily.
• Work for different law firms until you find one that fits.

“Every law firm has its own culture. Some cultures are psycho-toxic and others aren’t,” says Bircher. “In the first ten years, you need to have moved at least three times, unless you’re really happy.”

• Don’t use drugs or alcohol in order to burn the midnight oil. It can quickly become addictive.
• Each week, enter personal pursuits in your calendar before entering work commitments.
• Do something special for yourself every day.
• Maintain your personal spirituality.

Shifting boundaries

While many young lawyers suffer the stresses of practising law, they are, in general, more likely than senior lawyers to maintain work/life balance and seek professional advice, according to Starzynski.

He says many firms are also becoming more aware that balance is important to the human health of their business.

Malcolm, the Vancouver lawyer, regrets that he did not learn how to set boundaries and to say “no” earlier in his career.

“I wish this type of program has been available 25 years ago, and that I had been willing to participate in it,” he says. “If not, it would have been my mistake.”

A profession that has structured its role around solving problems for others has been curiously passive in the face of its own discontent. Recent changes in the conditions of practice have left many lawyers in a state of wistful resignation. They see workplace demands increasing, and civility and collegiality moving in the opposite direction. Yet many seem to lack a sense of control over their collective future. What most lawyers need to change is a belief about what change is possible.

In an influential essay, “The importance of What We Care About,” philosopher Harry Frankfurt emphasized that individuals are most fulfilled when they engage in work that they find meaningful and reflect at the deepest level about what meets this definition. It is, in short, important to remind ourselves what we care most about, and to refuse to settle, at least in the long term, for workplaces that fall short. Although not all the downsides of legal practice are easily avoided, lawyers could do much more, both individually and collectively, to reduce the gap between expectations and experience in their professional lives.

At the individual level, lawyers need to be more proactive in identifying and developing their strengths, and in finding work that will engage their capacities and aspirations. That, in turn, will require individuals to become more informed and self-reflective in their career choices. One step to that end is the emergence of rankings and data bases, like the Building a Better Legal Profession movement and the American Lawyer A-List, which grade selected law firms on factors such as diversity, work/life programs, associate satisfaction and pro bono activities.

Students should demand, and insist that their placement offices demand, more such information, including how workplace policies function in practice. How does part-time status or substantial pro bono involvement affect promotion and compensation decisions? How much control do lawyers exercise over their schedules and over the kinds of assignments and public service opportunities available?

Career fulfillment – on your terms

Once employed, practitioners also need to press for such control. That is particularly important for women, who are socialized not to appear pushy or aggressive. As the title of the path-breaking book on negotiating behavior noted, Women Don’t Ask. But when it comes to professional development and work/family tradeoffs, lawyers of both sexes need to ask; they must actively pursue what is necessary for fulfillment. In one study on career advancement, the most effective strategy was impatience; individuals benefited from seizing every opportunity and leaving a position when a more challenging opportunity became available. At the same time, professionals committed to improving their current situation often find strength in numbers. Organizing colleagues both within and across workplaces can significantly improve diversity and work/family policies.

At the institutional level, legal employers must do more to address sources of discontent and to evaluate the adequacy of their responses. A commitment to quality of life needs to be reflected in workplace priorities, policies, and reward structures. That, in turn, will require systematic evaluation of lawyers’ satisfaction, and of practices that affect it, such as mentoring, diversity, and work/family initiatives.

Decision makers must track whether underrepresented groups such as women and minorities are advancing in numbers equal to white male counterparts, whether all groups feel equally well supported in their professional development, and whether they find part-time and mentoring policies effective. So, for example, do lawyers working reduced hours find that their schedules are respected, that their pay and benefits are proportionate to their performance, and that they retain opportunities for advancement and desirable assignments? Do participants in formal mentoring programs feel that their assigned mentor has sufficient time, interest, incentives, and knowledge to provide the necessary support?  Are supervising lawyers adequately trained and evaluated in mentoring, performance appraisals, and treatment of subordinates? Do junior lawyers have an opportunity to rate supervisors in forms that matter in the organization’s reward structure?

Too many employers now lack adequate evaluation structures, and invest substantial time and money in initiatives that fail to meet the needs of their intended beneficiaries.

Professional satisfaction and pro bono culture

Too many legal organizations are also insufficiently supportive of pro bono work. Recent research makes clear what has to change. Employers must make a visible commitment to public service that is reflected in resource allocation and reward structures. In particular, employers should:

• provide full credit for pro bono work toward billable hour requirements;
• value pro bono work in promotion and compensation decisions;
• develop an effective system for matching participants with work that they find fulfilling, and ensuring adequate training, supervision, and performance;
• require lawyers to meet the ABA’s aspirational rules on pro bono representation, which requires 50 hours per year, or the financial equivalent.
• an equivalent requirement exists at the Canadian Bar Association. The CBA recently launched the Pro Bono Mentorship Program, which supports lawyers who are currently involved, or wish to be involved, in pro bono legal work, by connecting them with mentors who have experience in pro bono or in an area of law relevant to the pro bono. (Full details are available by consulting the Pro Bono Mentorship Handbook)
• adopt a definition of pro bono work that focuses on the public good, not the concerns of family, friends, partners, or paying clients.

Reforms are also necessary in the structure of practice. One promising initiative involves law firm tracks that allow different hours and compensation tradeoffs without second-class status. Another option is for organizations to match lawyers with projects that fit their substantive and scheduling preferences; often this work is done from home or client offices to maximize flexibility and minimize overhead expenses. Fee arrangements that reduce reliance on hourly billing can also be helpful in reducing pressures for overwork.

More lawyers could experiment with dispute resolution models that mitigate the acrimony often accompanying adversarial processes. One example is collaborative lawyering, in which parties commit to cooperative problem solving; if they are unable to reach a negotiated settlement, their lawyers will not provide representation in subsequent litigation. By removing lawyers’ economic incentives to prolong proceedings, the arrangement gives all participants a stake in minimizing conflict.

Clients should also pressure legal employers to address sources of chronic dissatisfaction. On some issues, clients have an obvious financial interest. They seldom get cost-effective service from bleary, burned-out practitioners, and high rates of attrition involve disruption, inconvenience, and additional training expenses. So too, a growing number of corporate counsel see diversity as an economic as well as moral imperative. They want firms that make full use of available talent, and that offer lawyers with a range of backgrounds and perspectives. To that end, many large corporations have pledged to consider diversity in allocating legal work. More clients need to follow suit, to put teeth in their commitments, and to add concerns like pro bono activities.

Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School and Director of the Center on the Legal Profession. This article is excerpted from the foreword to a recent issue of the Syracuse Law Review (Vol. 58, No. 2, 2008) devoted to “Perspectives on Lawyer Happiness.” Reprinted with permission from the author.

With Canada’s economy now clearly on its way into a recession, many young lawyers will find themselves facing a serious economic downturn for the first time in their careers. But lawyers can make smart decisions now to help prevent their careers from cooling along with the economy.

Canadian law firms have enjoyed strong growth since the last recession 15 years ago, despite some setbacks in the early 2000s from the burst of the dot-com bubble and the aftermath of September 11. Law firm mergers and expansions, increased mobility and an aging workforce have meant unprecedented opportunities for young lawyers. Similarly, in the nation’s corporations, economic growth and an increased post-Enron focus on corporate governance have resulted in numerous in-house options. Is that all about to change?

South of the border, the economic slowdown has brought a wave of associate layoffs and salary freezes. The cooling started earlier and is happening more quickly than in Canada, however, and big American law firms are notorious for sky-high starting salaries (now near $160,000) and beefy junior associate ranks. Some would say the belt-tightening was inevitable.

That’s not to say that Canada will see the same effect. Thanks to the economic boom of recent years and the multitude of domestic and international opportunities for young lawyers, Canadian law firms have been dreadfully understaffed at the associate level. (That’s especially true in Atlantic Canada, where associate salaries still don’t compete with those of larger centres like Toronto, Calgary and Vancouver, and bright young lawyers continue to stream out of the region.)

It’s unlikely that those firms will push out many of the associates that they have fought so hard to recruit and retain. And a slowdown could actually come as welcome news to many associates who lament the long hours and lifestyle sacrifices of private practice.

Historically, however, recessions mean a lower gross domestic product, a higher unemployment rate, and higher government deficits. These factors affect the bottom line of many Canadian businesses, especially in sectors such as manufacturing, and result in less work for both their internal and external lawyers.

Plan for the fallout

So it pays for lawyers at any stage of their careers to be prepared and proactive. What can you do?

If you are a lawyer in private practice, ensure that your firm has a vision of where it’s going and what it will do if an economic downturn affects its existing client base. Look out for yourself — if you’re relying entirely on your firm to provide you with clients, it’s time to focus on marketing and developing your own clientele who will support you in a less than robust economy.

Consider diversifying. If all your clients come from the manufacturing sector, for example, find ways to branch out to other industries or areas of law. An economic slowdown can create opportunities for lawyers as certain practice areas, such as litigation, bankruptcy and insolvency, thrive during economic downturns. If you are considering a career move, explore opportunities now, rather than after your firm decides to downsize.

If you’re an in-house lawyer, use your legal experience to help the company find ways to reduce costs and risk during the slowdown. Again, try to diversify your role by, if possible, being as much a business advisor as a legal advisor to the company. Don’t let your company pigeonhole you into a narrow area of practice from which you’ll be unable to branch out. Instead, focus on building your skills in marketable areas, such as corporate governance, tax, securities and transactional work.

Although a recession is painful, your career development doesn’t have to suffer along with it. View it as a turning point, rather than a setback, and focus on making your legal skills marketable, diverse and flexible enough to withstand economic upheavals.

Christine Doucet is a lawyer practicing family law and litigation at a boutique firm in downtown Halifax, Nova Scotia and is Public Relations and Communications Chair of the Nova Scotia branch of the CBA. Prior to returning to private practice in March 2008, she worked in the legal recruitment field.

It’s cause for celebration for lawyer moms in private practice—the lawyers who balance discoveries and daycare, partnership meetings and PTA meetings. Learning to juggle it all can be a lonely challenge, and one that leads many of them to change career paths.

But a report by the Law Society of Upper Canada on the retention of women in private practice promises relief, in the form of concrete recommendations to help women manage the demanding roles of parent and lawyer. The ground-breaking measures, developed by a Law Society working group and released in May 2008, include a think tank designed to retain and advance women lawyers in private practice, a practice locum registry to help women maintain their practices during leaves of absence, and a pilot program of parental leave benefits of $3,000 for three months.

Claire Wilkinson, a lawyer with the firm of Martin & Hillyer in Burlington, Ontario, and mother of two boys and a girl, applauds the report. She’s particularly encouraged by the parental leave benefit proposal, which would top up maternity leave pay for mothers who work in smaller firms that don’t offer in-house top-ups. “I only took 4 months off for each of my three maternity leaves,” she says, noting that her workload prevented her from taking any off longer. “But in addition, there was absolutely a financial cost to taking a maternity leave, particularly for my last maternity leave in 2004, when I was self-employed,” she adds. “I still had to cover my full overhead payments at my office, including rent, common expenses, and the salaries of two full time staff for the entire time that I was off.”

The working group’s research showed that law firms struggle to retain women for many reasons. But there was a familiar refrain: many leave after concluding that, in private practice, they can have a productive legal career, or be a dedicated mom, but not do both. Related Article True flexibility: Work/life balance is customizable for each lawyer (July 2006)

Kristen Bucci, a lawyer with Buset & Partners LLP, a small firm in Thunder Bay, recalls having to do a trial when her first child was three weeks old. “I was nursing, and I would nurse her before the trial and at lunch.”

A former president of her local law association and now a member of CDLPA (County and District Law Presidents’ Association), Bucci helped to draft CDLPA’s response to the Law Society recommendations on the retention of women. She calls the recommendations excellent, and is hopeful that, once implemented, they will help young mothers take the time they need to bond with their children. She says wistfully, “If the Law Society had offered me $3,000 a month for three months maternity leave, I would have taken it.” Developing a practice locum registry would also be extremely valuable, she adds – if the initiative can attract the substantial roster of lawyers it needs to succeed.

Support for a difficult balancing act

Regardless of the kinds of support available at the office, personal strategies become paramount in balancing work and family. Wilkinson offers this piece of advice for young lawyer moms: delegate. “I give my law clerks an extraordinary amount of responsibility, but I oversee them,” she explains. “Delegation is a great way to make yourself spread farther.” And don’t panic about the amount of work to be done. “I did not demand perfection from myself, when it came to being on top of my work all the time.”

The concerns of women employed at solo and small firms weren’t the only focus of the Law Society report. The recommendations also addressed the need for large and medium-sized firms to commit to adopting programs for the retention and advancement of women. (A three-year pilot project called the “Justicia Think Tank” was one of the measures proposed; the initiative has drawn the support of 40 law firms across Ontario).

Kirby Chown, Ontario Regional Managing Partner of McCarthy Tétrault in Toronto, welcomes that direction. She says large firms could be doing a lot more to support young mothers. At her firm, she says, an expectant mom is paired up with a maternity leave “buddy”—a more experienced female lawyer within the same practice group who can act as a mentor. Chown says she’s especially proud of a new initiative that provides six hours of free guidance on managing the work/life balance issues that happen when a rising career is combined with motherhood. A personal coach, who has training in family therapy and an understanding of law firm culture, has been hired to deliver the program.

The working group’s research showed that law firms struggle to retain women for many reasons. But there was a familiar refrain: many leave after concluding that, in private practice, they can have a productive legal career, or be a dedicated mom, but not do both.

If the industry has been slow to address the concern, however, it’s not for lack of tools available to help keep women lawyers, says law firm consultant Deborah Epstein Henry, the founder and president of Flex-Time Lawyers LLC. She says the industry needs to take better advantage of cultural tools as well as institutional tools. Mentoring circles, for example, where groups of eight to fifteen women meet regularly, can provide essential support. “There is a bigger likelihood of making a personal connection, and more continuity in the relationship,” she says.

Henry says women lawyers can also influence change when they are judicious in selecting law firms that are responsive to their needs. A guidebook Henry wrote to help women law students with that challenge is now being used as a blueprint by law firms who want to motivate and retain women lawyers.

Chown says she would like to see more law firms take a long-term view of maternity leaves and parenting issues. “If a woman takes two or three years longer to make partner because she’s a parent, over a 25-year career, that’s really not a significant amount of time, and law firms should accommodate that.”

Women lawyers who want a career in private practice, for their part, shouldn’t give in to societal pressure to be less ambitious, Chown says. “It’s important for women to know it’s okay to be a mother who enjoys her work.

Valerie Mutton is a freelance writer.

Allyson Jeffs, a civil litigation lawyer with Ackroyd LLP in Edmonton, used to be a reporter for both the Calgary Herald and the Edmonton Journal, covering the courts and the legislature. “I had more of a baseline legal knowledge as a lay person than a lot of colleagues,” she recalls. “As a journalist, you meet people from all walks of life, and you can absorb and summarize a lot of information in a deadline situation.” Being a writer, too, “really helped.”

Clayton Bangsund, a lawyer with Layh & Associates in Langenburg, Saskatchewan, didn’t anticipate that his experience as a high school math teacher would benefit him much in law – but it did. “Teaching is about simplifying complicated matters and communicating to students in an accessible way, which is very transferable for explaining complicated issues to clients, and for oral advocacy,” he says.

Alhough statistics are difficult to come by, it’s clear that the legal profession is welcoming increasing numbers of second-career lawyers – from journalists to businesspeople, from teachers to health professionals.

And for those starting anew in law, a number of questions demand reflection: is my early experience attractive to prospective law firms. How do my skills set me apart, and what would employers value most about my pre-law experience? Ultimately, the success of those who adapt quickly to law comes, in part, from their ability to recognize and tap into their pre-law experience and skills.

Carol Fitzwilliam, founder of Fitzwilliam Legal Recruitment in Montreal, says some second-career lawyers impress employers with their maturity and work ethic. Others gain an edge by being able to demonstrate that their first career gave them industry smarts or working knowledge that relate directly to the practice area that interests them. “We represented a qualified pharmacist who, within minutes of being qualified as a lawyer, was snapped up by pharmaceutical company,” Fitzwilliam says.

And when the hoped-for practice area has no obvious tie-in with the candidate’s work experience? In those cases, says Christian Petersen, a partner responsible for student recruitment at Vancouver’s Bull, Housser & Tupper LLP, “it is important to emphasize some of the experiences that would be useful to a legal career, such as a business or deadline-intensive environment.” The nature of the candidate’s work history also merits consideration. “Frankly, if a candidate spent less than six months at five different jobs, they would be evaluated differently than someone who had a successful career with one respected employer.”

Most important of all, pre-law career experience should reveal some of the personal attributes prized by the legal profession. “Whether you were a professional cellist or geological engineer, we are looking for the qualities required to excel. We look for something that shows a strong work ethic, dedication and commitment,” says Peterson.

“Ultimately, prior work experience is evaluated the same as any other previous experience – do these characteristics make a good lawyer for the firm?”

Bangsund taught math at an Edmonton high school for one year before entering law school, attracted by the “intellectual rigours” it promised. He’s now a specialist in debtor/creditor law with Layh & Associates. “I was most gifted in math growing up, and the area of law that I ended up going into is sequential, logical, and codified,” he explains. “Math is about applying principles, and secured transactions are very analytical in this sense. I found that my skill set from before has shaped the type of law I am interested in.

“I stressed my desire to learn something more, that I was not running away from another profession,” Bangsund recalls. “I haven’t turned the page on teaching. I haven’t said, ‘that's in the past’ – I have included it in my skill set.”

Having the confidence to leverage that first career as an asset in law is paramount, says Jeffs. When she wrote the LSAT a few years ago, it was the first exam she’d taken in 15 years. “Some journalism colleagues thought it was risky to leave journalism for law, but it was a manageable risk – and rewards really pay off,” she says.

“For me, it was a matter of not being afraid of being older, of stressing experience and confidence – and bringing that to the table. Law is a career that you can age in. Clients draw confidence from a bit of age and experience.”

Bangsund believes an increasing number of young lawyers entering the profession today bring significant experience from other fields, and law firms are reaping the benefits. “Many law students come out now with previous careers, and firms appreciate the maturity built up.”

Fitzwilliam concurs. “In the current business environment, we are going to see fewer and fewer people with linear careers. So those who have a career path uniquely their own will not in fact be prejudiced, but enhanced, if they learn how to present the skills and knowledge that is acquired and transferable from one career to another,” she says.

But how exactly to leverage one’s pre-law skills and experience is a skill no law school can really teach. “It is incumbent on the candidate to spend some time reflecting on their past experience on what is transferable.”

Michelle Mann is a freelance writer.

During the course of your career, you will encounter opposing counsel who will frustrate you. Perhaps they are overly argumentative, fail to follow through on their promises to provide certain documents, file motion after amended complaint after pre-response discovery request after motion, or are simply poor practitioners. When you encounter such counsel, there’s nothing you would like better than to point out their ineptness or uncooperativeness in pleadings.

As satisfying as that might be, there is nothing to be gained by attacking opposing counsel in pleadings. Below are five good reasons not to do it.

1. You’re a professional. The first, best, and only necessary reason not to attack opposing counsel in writing is that it is unprofessional. As an officer of the court and licensed professional, you should rise above petty personal disputes. A professional does not spend time worrying about how to work in a jab at opposing counsel in pleadings; rather, a professional focuses on serving client interests and allows the strength of written arguments to speak for themselves.
   
   
2. You’re creating a permanent record. There will always be a record of your attack on opposing counsel. Anything in writing can be sent around courthouses, cities, and the world with the click

   A professional does not spend time worrying about how to work in a jab at opposing counsel in pleadings; rather, a professional focuses on serving client interests and allows the strength of written arguments to speak for themselves.

   of a mouse. If your document isn’t already in electronic format, it can easily become so; in a short time, your document with the nasty little poke you took at opposing counsel can be available on the web.
   
   
3. Opposing counsel will NEVER forget what you’ve done. Maybe opposing counsel is completely unprofessional and “deserves” the insult. Then again, maybe counsel is just having a bad month or personal problems, and the last thing that the counsel needs is your attack in writing. Rest assured, your name will never be forgotten, and in the future, you can forget about receiving reciprocal “professional courtesy.” You need additional time to file a response? Tough, a deadline is a deadline. You don’t want to miss your kid’s soccer game, and you need to reschedule that deposition? Too bad. You’re swamped with work and need a break? So sorry. Take a jab at someone in writing, and you’ve made a permanent enemy.
   
   
4. Other counsel will read what you’ve written. Over the course of your career, you will want fellow counsel to refer clients to you. Further, you will want a positive reputation when leadership positions in the community or bar become available. You want to be known as a tough but fair lawyer, not an inflexible or contentious one. By taking shots at opposing counsel in writing, you’re blackballing yourself from future opportunities.
   
   
5. The judge is smarter than you think and knows who’s causing trouble. Young counsel often think that the court is unaware of who is creating problems in a particular case or who is being unnecessarily contentious, and they feel the need to point it out. The court, however, is smarter than you think. I found this to be true a few years ago when I was engaged in a discovery dispute with opposing counsel, who was interfering with my third-party subpoena. As is my habit, I faxed and mailed documents to the addressee, but only mailed documents to those receiving copies. I copied opposing counsel on a letter; thus, he only received a copy in the mail. When opposing counsel realized my practice, he went ballistic and accused me in writing of committing fraud and lying to the court. He copied the court on the letter, despite the judge’s written instructions that he not be copied on correspondence. Following a conference call with the judge to discuss the discovery dispute, he issued an order that opposing counsel stop interfering with my subpoena. The last line of the order included a single sentence, reminding counsel that the court is never to be copied on correspondence. Clearly, the court knew who the troublemaker was without me taking a shot.

Remember, in all aspects of your practice, not just pleadings, it’s always best to be professional. You’ll be well-served by always taking the high road.

David R. Keene II is an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., in its Tri-Cities, Tennessee/Virginia office. This article was originally published in The Young Lawyer, Volume 13, No. 1.

© 2008 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Technology makes everything easier and faster. In fact, it makes it possible to commit malpractice at warp speed. We can fail to represent diligently, lose our clients' data, perform incompetently, and violate the rules regarding lawyer advertising—all in 60 seconds or less.

There are so many ways to potentially commit malpractice with technology that it is impossible to list them all. Still, let us make a credible stab at some of the more common missteps.

Here are 12 ways to get into ethical trouble with technology:

1. Get involved with a client via e-mail and give advice prior to the proper formation of a contract. This is all too easy to do, especially since many lawyers now have their e-mail addresses up on the Web. It is important to get the retainer agreement signed before the advice is the given, lest complications arise. Remember that your e-mail will leave a trail, so exercise extreme caution with anything that remotely seems like legal advice.

   “You should assume, at all times, that whatever you transmit electronically will live forever. ”

   
   
   
2. Send a document to a client to sign and don’t PDF and lock it. All too commonly, clients take it into their heads to alter a document sent to them by their lawyer. THEN they sign and send it back. Be careful – PDF and lock down all important documents – the exception is when you are working on drafts of a document, when it is easier to use Word and the “Track Changes” feature. However, once done, PDF and lock the document before it is sent around for signature!
   
   
3. Don’t back up – and almost as bad – don’t do “test restores” of the backups. Most lawyers should be doing incremental (or differential) backups daily and full backups at least weekly. If you’re doing less, think again about the potential danger. Also, backup media fails over time, so don’t assume that you have a good backup without doing periodic test restores.
   
   
4. Be a “chatty Kathy” online. We have become a society of online chipmunks, happily chattering away in chat rooms, on blogs, on listservs, and via IMs and e-mails. You should assume, at all times, that whatever you transmit electronically will live forever. Remember, deleted isn’t "deleted" and the power of computer forensics to recover deleted data is fearsome. If you don’t want to answer for what you’ve written three years later, don’t send it!
   
   
5. Have a laptop without a power-on password, encryption, or biometric access. In a world where laptops are the #1 stolen item at airports (and they rank in the top five at hotels, from cars, etc.), you must take precautions. The new “finger-swipe” biometrically accessed laptops are no longer out of anyone’s price range. Encryption of data is no longer difficult. At the very least, make sure no one can get on your laptop at all without that power-on password. It is surely malpractice not to take this most elementary of precautions.
   
   
6. Put client data on an unencrypted thumb drive. It is critical that data on a thumb drive be protected either by requiring a password or by encrypting a portion of the drive which carries client data.
   
   
7. Have client data on a cell phone that doesn’t require a password. It may well be that we are simply the “hurry up” generation that doesn’t have time for that extra step, but if there is client data on the phone, it certainly seems like we MUST take the time to ensure that client data cannot be accessed if we accidentally lose our phones in a cab!
   
   
8. Decide you don’t need to know about electronic evidence. Sorry, but this is no longer possible. You can no longer make a deal with the opposing counsel that “I won’t go there if you won’t.”  In a world where 95 per cent of data is created electronically and only a fraction of it is ever reduced to paper, you have no choice but to consider whether ESI (electronically stored information) may be a part of your case.
   
   
9. Make it impossible to find your own files. If you do not have a case management or document management system, make sure that you have electronic files named by client, with descriptive titles for each file, including the client name in case you mistakenly move the file to another folder.
   
   
10. Don’t scrub the metadata. It is impossible to overstate the importance of this. Court briefs have actually been filed with metadata intact. In one memorable comment, a lawyer asked if anyone thought that the “yo-yo brain judge” would understand what was being argued. As you can imagine, the judge was not amused as he viewed the comment in the electronic document. Our favorite metadata scrubber is Metadata Assistant, by Payne Consulting (about $80 US per seat). Already own Adobe Acrobat? Convert your document to PDF and that will strip out almost all the metadata, usually everything you’d care about.
    
    
11. Fail to address e-mail correspondence in your retainer. Many lawyers believe, and we agree, that there should be a separate paragraph in your retainer pertaining to e-mail, in which the client specifically agrees that e-mail communication is acceptable or not acceptable. It should discourage the client from communicating from work and also stress the importance of not divulging sensitive data in e-mail. Many lawyers, including one of the authors, will ensure that this paragraph is separately initialed so that it is abundantly clear that the client understood potential risks before using e-mail as a vehicle of communication.
    
    
12. Mishandle or spoliate electronically stored information. Until recently, lawyers were getting away with this on a regular basis, but no longer. Judges have had enough, and are beginning to hand out sanctions like penny candy, mostly against clients, but now and again against the law firm as well. You must understand your client’s technology well enough to avoid spoliation and to determine where relevant evidence may be in order to preserve or produce it. If you are not up to speed, it is time to get there.

This list could go on, but hopefully it is clear that there are significant dangers in the electronic world, waiting to trap the unwary lawyer. Here, at least, is a good starting point for making sure you’ve covered as many ethical bases as you can.

Want some extra help? Go to Legalethics.com, the American Bar Association, or FindLaw.

Sharon D. Nelson and John W. Simek are the President and Vice-President of Sensei Enterprises, Inc., a legal technology and computer forensics firm based in Fairfax, VA. 703-359-0700 (phone). The full version of this article was published by CBA PracticeLink in October 2007.

The CBA has developed guidelines for the ethical use of new information technologies.

New information technologies, once mastered, can save time, contribute to efficiencies, and improve service. They are also rapidly being integrated into our work and world, while other technologies are fast becoming obsolete. Inevitably, courts are being called on to make decisions about the lawyer’s ethical and legal responsibilities in response to this technology revolution. Some recent decisions have held that lawyers, in some circumstances, have an ethical obligation to use new technologies or, at least, have access to someone who can.

The guidelines highlight best practices in these areas:

• confidentiality
• encryption
• privilege
• electronic storage, retention and deletion
• metadata
• security
• marketing
• accessibility
• service delivery
• intellectual property and software
• electronic legal research and information retrieval
• participation in online discussions

The new guidelines are not a set of mandatory rules – for those, please refer to your governing body’s code of conduct. Instead, they’re designed to supplement the CBA Code of Professional conduct and, in doing so, to assist lawyers when they use new technologies, with emphasis on the need to preserve the security of information and to maintain client confidentiality and privacy.

For more information, please consult the guidelines.

Report from the Chair

I’m very proud and excited to be the Chair of Young Lawyers of the CBA for the 2008/2009 season. Young Lawyers play an important role in the National CBA: our executive members have a seat on the Conference Chairs Committee, the Finance Committee and at the Board of Directors table (the latter along with the presidents of each provincial and territorial branch across the country). The national CBA staff and the lawyers who volunteer alongside work extremely hard to make sure that the CBA continues to be the voice of the legal profession in Canada and to provide its members with invaluable opportunities for networking, continuing legal education and other services.

Directorate meeting

This year, from November 7-9, 2008, Young Lawyers will be bringing the Young Lawyer chairs from across the country to Ottawa for our annual Directorate meeting. They will participate in an orientation to the workings and organization of the national CBA, and meet CBA President Guy Joubert, who has graciously agreed to join us on Friday afternoon. On the Saturday, we will have a full day to discuss our progress on the four priorities we identified at our directorate meeting last Fall (International Presence; Member Programs and Services; Work-Life Balance; Pro Bono), and work towards identifying a national Young Lawyers pro bono project. On Sunday morning, the branch chairs will have the opportunity to share their reports of initiatives and challenges in their area, and hopefully bring some good ideas back to their sections.

In terms of our priorities, progress has been as follows:

International presence

In mid August, Lorelei Berra, our Secretary Treasurer from Regina, was invited to assist with a conference on constitutional law to the Nepal Bar Association with the International Development program. She found this to be an extremely rewarding experience, and while in Nepal was able to follow up on an initiative suggested by President Guy Joubert and Bishwa Mainali of the NBA, whereby young lawyers from each country would be paired via mail or email in order to provide some mentorship of young Nepal lawyers. We are currently waiting to hear back from the NBA with a list of participants on their end. Because of both cultural and technological differences, this will likely be a relatively small project, but exciting nonetheless.

On September 26 and 27, 2008, I went to London England for 47 hours (yes, that’s right) to participate in the International Weekend put on by the European Young Bar Association. It was a fantastic conference, with young lawyers from England, Ireland, Scotland, France, Spain, Italy, Serbia, China, Russia, Luxembourg, the Netherlands, China, Australia, and the US. I had the opportunity to tour the Royal Courts of Justice, visit Barrister’s Chambers (in England this refers to an office which houses barristers), and participate in a reception at the Inner Temple, one of the Inns of Court in London. I was particularly excited by a workshop on networking, which I hope to bring to you later this year via podcast and/or newsletter – it was by far the most relevant and accessible workshop on networking that I’ve heard.

Member programs and services

We are working towards providing programs and services that will have increased relevance for young lawyers (one suggestion has been reduced rates for a housecleaning service – no promises).

Work life balance

We are extremely pleased that the CBA has chosen work life balance to be the subject of the next Emerging Professional Issues Initiative, and look forward to actively participating in that initiative.
Our Vice Chair, Rebecca Bromwich of Ontario, was invited to attend a Legal Profession Assistance Conference meeting in early October to provide our view of work life balance issues. She put together a power point presentation that very capably outlines the difficulties that young and not so young lawyers are facing, as well as some of the initiatives and research done to date. We will be presenting this to the Directorate in November.

Pro Bono

With the help of Pam Kovacs of the National Pro Bono Conference of the CBA, we have been gathering information on pro bono services currently available in each of the provinces and territories. Pam will be attending the Directorate meeting, where we hope to identify some ideas for a national pro bono project for our members.

Other work

We are also working on our Winning Advocacy Seminar for next summer’s Canadian Legal Conference in Dublin, Ireland, which will cover first time advocacy in the Supreme Court of Canada. We will be presenting this with the help of the Supreme Court Advocacy Institute, and hope our panel will include at least one SCC judge or former judge. This will be a terrific conference and a wonderful opportunity to visit Ireland, so I urge you all to consider attending.

Questions? Please contact me at ylcba-jaabc@cba.org