BARE BONES BRIEFS: Family lawyers make these professional misconduct mistakes | Clio offers escape from restrictive legaltech contracts | Wikipedia influences judges’ decisions: MIT study | Former CJO Strathy joins Arbitration Place | Medical device mass torts proliferating

By Julius Melnitzer | January 30, 2023


In a Six Minute Family Lawyer Program, Bill Trudell, who defends lawyers before the Law Society of Ontario, outlined five Rules of Professional Conduct “that frequently are not followed and ones that may be of particular relevance to the family law Bar”. What’s scary is that they’re all so basic: practising with integrity and competence; providing courteous, thorough and prompt service; encouraging compromise or settlement; not threatening penal or regulatory proceedings without reasonable and lawful justification; avoiding conflicts of interest; charging reasonable fees and disbursements; advocating resolutely and honourably while treating the tribunal with candor, fairness courtesy and respect; making full discovery; avoiding sexual harassment; practising with civility and good faith to all; replying promptly to and maintaining a proper tone in communications; and agreeing to reasonable requests that do not prejudice the client.

“Treat your clients as you would want and expect to be treated, but protect yourself along the way,” Trudell said. “It is their case, not yours, but it will be your case, not theirs, at the Law Society.”

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Since last May, Clio, a legal technology provider, has been helping law firms who are unhappy with their software. The company’s “break-free” program will cover buyout costs by providing a credit of up to six months of free Clio software. Clio is also offering free data migration services, dedicated onboarding and training.

In the first three months, 55 lawyers in 250 firms accepted the offer, including 14 lawyers in four Canadian firms. Clio says that more than half were using Amicus/Abacus or LEAP systems. A large majority had over six months left on their contracts; some had multiple years remaining.

“This validated our hypothesis that many firms stick with contracts for legal software that don’t work for them anymore yet feel bound to their current provider because of the early termination penalties [one vendor charges 30 percent of the total contract, not just the remaining portion, to break a three-year agreement],” said a Clio spokesperson. “The promotion helps alleviate double-paying for two solutions simultaneously, and much of the value is also in the free data migration program we set up.”

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A study by MIT and Ireland’s Maynooth University concludes that a Wikipedia article about a case increases the decision’s citations by more than 20 percent – particularly when the case supported an argument judges were making in their decision. This was particularly true in trial courts, but uncommon in appellate forums.

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George Strathy, who retired as Ontario’s chief justice in August, has joined Arbitration Place as a mediator and arbitrator. During his tenure, he modernized the court’s technology, moving it to paperless operations and a state of the art case management system.

“As Chief Justice, George took a particular interest in arbitration and was supportive of it,” says Barry Leon, a member arbitrator and mediator at AP who is a former judge of the commercial division of the Eastern Caribbean Supreme Court.

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Medical device mass tort actions, based on the U.S. multidistrict litigation model, is a “rising phenomenon” here, says Torys LLP. MDL manages multiple individual claims involving similar allegations against the same defendants by consolidating them in a single jurisdiction. Alhough Canada has no statutory framework for this, plaintiff firms have started to mimic the MDL model in product claims. Most are at a preliminary stage.

Torys cites several features of mass tort claims: more early attention to the merits, more intital work and less court supervision than class proceedings; greater availability of information earlier than when dealing with multiple individual actions; conflict with class actions in determining which is the “preferable procedure”; and less finality because mass tort cases leave open the possibility of future claims: they bind only the parties, whereas class actions bind all class members, known or unknown.

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Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or

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