All Our Tips
Remembering to Not Forget to Be Ethical
Ethical lapses on the part of lawyers are often due to mistake, rather than known wrongdoing. The problem is not intention, but lack of attention. Taking the time to pause and ask yourself the following ethical questions before embarking on a course of action will help maintain your ethical obligations, your quality of representation, and the benefit you provide to the public.
1.Are you competent in the relevant legal areas?
“Don’t dabble” is an oft-repeated mantra. Lawyers may sometimes feel pressure to expand the scope of their representation to encompass tangential or additional matters brought forward by a client. Sometimes the best legal advice you can give to a client is a referral to another lawyer with the necessary experience.
2. Who is your client?
Lawyers can sometimes find themselves in a situation where they are, perhaps inadvertently, representing multiple parties with potentially adverse interests. Be careful to specify and remind yourself who you have agreed to represent, and then ensure that the instructions you take and the advice you give are from and to that person.
3. What are your client’s intentions?
Fraudsters often use inattentive lawyers as unknowing instruments and accomplices for unethical and illegal conduct. Willful blindness or unreasonable ignorance in such circumstances will not prevent a potential finding of liability for malpractice, or worse. Take the time to confirm your client is not leading everyone, including you, down the garden path.
4. What are the parameters of your retainer?
Lawyers can run into trouble when they act without client instructions or fail to act in accordance with instructions. This can leave you torn between bad choices if time-sensitive developments occur and your client is unavailable to instruct. Ensure you set out at the beginning of the retainer the exact scope of your representation, the circumstances in which you will seek instructions, and the ways in which you will obtain those instructions.
5. Are you maintaining confidentiality?
An inadvertent failure to keep client confidentiality can be a serious breach of a lawyer’s ethical obligations. For example, border crossing with electronic devices containing privileged information can expose those devices to search by Canadian or foreign officials. Only bring “clean” devices across a border (without any confidential information on them). In the alternative, encrypting the contents of your devices or segregating privileged material into clearly marked folders or accounts will still provide some safeguards for your ethical obligations.
Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.
A Far-Flung Correspondent Writes
From Saskatchewan, to ask whether it’s court house or courthouse.
Either, really. Or, better, court-house.
The OED uses a hyphen, but its examples of usage (mostly from the US) give all three forms.
The single-word, no-hyphen version is often seen (British Columbia has its Courthouse Libraries), but does suggest an unnatural pronunciation (coor-THOWZE).
Perhaps the best way to go is to talk about the Victoria Avenue Court House in Regina, but to say that the parties settled on the court-house steps.
Update the Most Important 120 Characters on Your LinkedIn Profile
When you post content on LinkedIn or even comment on someone else’s post, what part of your profile do your connections see in their feed? Three things. That’s it.
- A mini thumbnail of your headshot
- Your name
- A headline (120 characters or less)
Most lawyers and other professionals use their LinkedIn profile headline for their literal job title. That’s not actually the best way to maximize this line. Job titles all tend to sound the same and they aren’t really that interesting. Imagine seeing a sea of these titles in a search result.
Yawn.
Your headline can convey more than your actual job title. It can become an advertisement for your profile page. So, for today’s tip, consider how you can update your LinkedIn headline to maximize the value of all your views:
- Can you describe how you help your clients?
- What types of clients do you work with?
- How do clients benefit from working with your firm?
- Can you describe the style in which you deliver your services?
- Why did you choose this line of work?
Take 5 minutes today to update the most important line on your LinkedIn profile. It’s a worthwhile step, given the exposure it gets relative to the rest of your page.
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For related reading, see these past articles on Slaw:
- LinkedIn Dos and Don’ts for New Lawyers
- Who’s Looking at You in LinkedIn
- 5 LinkedIn Profile Mistakes Lawyers Make
Also, see the following related articles by Sandra Bekhor at Toronto Marketing Blog:
- LinkedIn books for lawyers: An interview with author Marc Halpert (videos)
- LinkedIn for lawyers: What’s next? (13 pros chime in!)
- Legal marketing – what’s next? (42 legal marketing pros chime in!)
Plagiarism
Long, long ago, when the interweb was new and I was an articling student, I had to write a conference paper for a partner — one of those pieces that ended up with his name as author and mine in a footnote.
I was doing research in the firm’s library and among my sources were conference papers by other lawyers. At one point, I said to myself, ‘Oh, wait — I’ve read this one before, haven’t I?’ When I checked the pile of binders on the table, I realised I had read the paper before — but it was ostensibly by a different author at a different firm from the one whose work I had just looked at.
I realised at once what had happened. Another stressed-out articling student with a looming deadline had just copied an earlier paper, holus bolus, and slapped the instructing lawyer’s name on it. Both papers dated from the same year, so which was the original and which the plagiary? There was no way to tell, so I cited both in my footnote and left readers to draw their own conclusions.
For a generation of articling students who have never known a world without the internet, and whose notions of copyright are perhaps a bit flexible, the opportunities for copying others’ work are legion. And deadlines from lawyers are no less pressing. How embarrassing it would be to have someone from another firm call you up and point out that your blog post or conference paper is in fact something she wrote last year, repackaged as your original work.
When I’m marking law school assignments, if a phrase sounds too polished or too technical to be the work of a 2L, I run the excerpt (in quotation marks) in the search box for legal blogs at legalresearchandwriting.ca or slaw.ca, and in Google. There are also some tools — some of them free — to be found by searching for ‘plagiarism checker’ on Google. So, see what your students have been up to…
Better yet, write your own original content.
Have a Copy of the Bill to Refer to When Searching Hansard
Hansard is a very useful tool when trying to determine the intent of an act. Researchers often look at a specific section of an act and what it was intended to achieve.
However, section numbers can change from when the bill receives First Reading to when it receives Royal Assent, so it is good to confirm what the number was for the section of interest when it was in bill form. This is especially true when reading Hansard for a very long bill. In order to do that, researchers will require a copy of how the bill read for that particular stage.
For researchers looking for federal bills, LegisINFO carries them back to 1997 and Canadiana carries them to 1974. (This does leave an unfortunate gap.)
For other jurisdictions coverage varies greatly; for example, Alberta’s bills are available online back to 1906, whereas for other jurisdictions online copies of bills are only available for the last twenty years.
Misunderestimate
In a recent tweet, John King of CNN cautioned his followers not to ‘misunderestimate the relentless base and focus’ of Trump supporters in their drive towards November.
That word (italicised here for emphasis), attracts red underlining on the screen, signalling an issue, and attracted a raised eyebrow from me.
The mis- prefix is redundant, because you’ve already got under- working to qualify or compromise estimate.
Misunderestimate isn’t in the Oxford English Dictionary — but it is in the Wikipedia entry on ‘Bushisms’.
That is, the various ‘unconventional statements, phrases, pronunciations, malapropisms, and semantic or linguistic errors in the public speaking’ of an earlier president, George W. Bush.
The 43rd president of the United States observed of his 2000 election that he had been misunderestimated by the pollsters, the media and the public.
So, King’s use of the word is a nice political allusion, as well as a warning not to discount a candidate with longer odds.
Looking back from the vantage point of 2020, GWB isn’t looking so bad (remember when he was called the ‘Worst President Ever’?).
The reference to misunderestimating is therefore a useful reminder against complacency.
More Miscellaneous Misuses
Small things to watch for and avoid.
Any questions, please contact X
We’ve all seen this, and we all know what it is intended to mean.
Interpreted literally, it means the questions themselves are being directed to contact X.
It should be either If you have any questions, please … or Any questions? Please …
Convicted of eight counts
Properly, on eight counts.
Honour role
Seen in more than one student application letter or CV.
Yikes. It’s honour roll.
Unnecessary question marks
Seen recently in e-mails from partners: Let me know if this makes sense? Please let me know if you have any experience with So-and-so? I don’t see an attachment??
These are not questions, obviously. And not even two question marks will make them so.
‘Garden Path’ Sentences
My sister sent me a fun article about these.
They are sentences that you think are going in one direction but which suddenly seem to go off on a weird tangent that doesn’t quite make sense.
When you read them again, you realise they do make sense but just not in the way you expected.
By way of example: The old man the boat.
Your brain probably tells you at first, ‘Oh, this is about an old man who …’ but then the path diverges and you have to figure out that man is not a noun but an unexpected (and perhaps unfortunately gendered) verb.
It’s only after a moment of thought that a seeming non-sentence makes sense.
The initial reading process is the mental equivalent of predictive text on your computer or phone screen. Your brain then has to correct its original miscue because it doesn’t like the look of a sentence without a proper verb.
Better drafting could have prevented confusion with many of the sentences in the article.
The raft floated down the river sank would be better if recast as something like The raft sank after having been floated down the river.
Add a comma after the third word of When Fred eats food gets thrown. (Actually, that one isn’t so bad as is.)
The lesson for legal writers is not to type and simply leave it at that. There will be syntactical ambiguities, errors, stylistic awkwardness, things that don’t make sense.
Come back to your piece of writing with fresh eyes. Read it aloud. Have someone else read it.
Your first draft is never as good as it could be.
Prevent That Annoying Autocorrect of (C) to ©
Administrator’s note: thanks to legal copy and content writer Steve Toews for this guest tip!
Want to stop Microsoft Word from autocorrecting (c) into ©?
File Menu –> Options –> Proofing –> AutoCorrect Options –> Type (c) into the “Replace” field –> Delete.
Pro-tip from an exasperated legal writer.
5 Tips for Virtual Oral Argument
Administrator’s note: thanks to Toronto legal communication expert and litigation consultant Caroline Mandell for this guest tip!
Here are five tips for virtual oral argument, now that I’ve watched some Zoom appeals:
- Stand, don’t sit. The neuroscience shows we literally think better on our feet, and it’s the way you’re accustomed to arguing. Invest in a desktop lectern to make it feel more authentic.
- File an oral argument compendium to direct the court to key documents rather than sharing your screen. It’s easier for judges to follow along and mark up their own copies. (Bonus: the compendium forces you to prep well in advance of the hearing.)
- Enlist someone whose only job is to watch the judges’ faces and signal you when it looks like someone wants to ask a question. No legal training required—put a family member to work.
- If you need a break, ask for it. If the court offers to take a break, agree to it. Even a 5-minute pause between your argument and your co-counsel or opposing counsel’s argument will be cognitively refreshing for everyone.
- SLOW DOWN. Zoom deprives you of many of the non-verbal cues that normally tell you to put the brakes on. Pause when you’re directing the court to a document or moving onto a new point. Ask if they’re ready to proceed.
Now as always, the secret to good advocacy is empathy. Put yourself in the court’s position and ask yourself what you’d find most helpful. Then do that. Good luck!
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Hat tip to the Law Society of Saskatchewan/Legal Sourcery – these tips were mentioned in a recent COVID-19 Legal News Roundup.
