Roger writing the LAWmag
Oct 1996

LAWmag 6 (October 26, 1996)

I. LAWbytes

Australian Barrister Fights Back

Australian males need not apply. Peter Freckleton only wanted an even opportunity. The Melbourne, Australia barrister earned a Ph.D in French language training in 1984 and applied for a job at Melbourne University in 1991. Despite exceptional credentials, he was not even interviewed for the position which went, instead, to a female native of France who only had a bachelor's degree. Although it was never mentioned in the job posting, it was later revealed that the French department wanted a woman, preferably one born in France. Freckleton complained to Australia's Human Rights Commission and, almost five years later, he was offered a cash settlement by the university. "Fortunately I was in a position to do something," he said to the Australian weekly news magazine The Bulletin (ed. note, 2013, now defunct). "But most people don't want to be branded a troublemaker." Quite the contrary, Mr. Freckleton, you should be branded a hero.


Robin Hood Returns

Julian Andrew Spurrier is one Wistable, Kent (England) solicitor who could use a visit to the Wizard of Oz. Spurrier has a big heart but no brains. The 50-year old was sentenced to an 18-month jail term on October 2, 1996 for stealing money from his clients' account to give to needy people. Over £260,000 were taken from his firm's trust accounts over four years. Spurrier had become well known as a "philanthropist" to the point where the neighbourhood poor would line up at the bank door waiting for his arrival. Spurrier lived very modestly and admitted to getting "a buzz out of being God." Perhaps he'll have some time in jail to finish reading all of the Ten Commandments.

UK Stalls on Plans To Reform Legal Aid.

Change? Not change! The United Kingdom's Lord Chancellor is balking at changes to the country's legal aid system. After publishing a White Paper in July, which called for dramatic changes, the government department now seems to be all but confirmed in it's intention to go slow. Innovative initiatives, such as user-pay, a higher threshold of eligibility, a stricter "deservingness" test and an option for winning parties to recoup their costs from losing parties who used legal aid to pay for the writ, will all have to wait. Reports from England suggest that the government has all but shelved the reforms. As late as October 18 (1996), the Chancellor's department was trumpeting the scant reforms they have been able to implement. These include production of a booklet, "Resolving disputes without going to court," a layman's guide to alternative dispute resolution; a pilot scheme at Central London County Court to attempt settlement through mediation, offered to those involved in disputes over sums above £3,000 - and an increase in the small claims jurisdiction from £1 ,000 to £3,000 (excluding personal injury cases). It seems like the Lord Chancellor has been scared off by the decidedly anti-reform attitude adopted by the chaps at the English Law Society. The Law Society points out that there is no crisis; that the legal aid budget, in recent years, has been under-spent. It looks like real reform of the British legal aid system will have to wait for another day. There is expected to be but one more Throne Speech before a general election call. Prime Minister John Major may soon discover, as have defeated conservative governments in Canada and the USA before him, that shyness towards change has become a symptom of terminally-ill governments.

II. To "I Do" Or Not To "I Do."

While America's two big political parties were holding their conventions and while President Bill Clinton was worried about military strikes in the Persian Gulf and Boris Yeltsin's health, a momentous battle was playing itself out on the floor of the nation's federal legislative assemblies. It was a battle for "gay rights", as some call it or, more precisely, the success of the Defence of Marriage Act (DOMA, 1996), which will allow states to outlaw same-sex marriages, and the demise of the Employment Non-Discrimination Act, which would have prohibited job-related discrimination based on sexual orientation.

LawMag 6 (1996)The law makes special concessions, benefits and legal exceptions designed to favor the optimal environment for the raising of children. A whole branch of the law is devoted to families and is known generically as "family law." Because of the overriding public policy behind family law, other areas of
the law have been adjusted to support family law, such as contract law and the law of wills and estates.

Imposing same-sex relationships upon this system will immediately challenge the flexibility of the vast network of family rights now woven into the law and likely result in less legal advantage for families of all kinds.

Gay activists want this unique protection to apply to their same-roof relationships, even though child conception is impossible between them. Gay rights lawyers are relying on the absence of evidence that a child raised in a heterosexual family would be better off than one raised in a same-sex family. Besides, their argument goes, a convicted murderer can get a marriage license but a gay can't.

And what a Pandora's Box has been opened!

  • The gay community had pulled out all the stops in trying to defeat DOMA and getting the non-discrimination bill passed. This included "outing", or the public disclosure of the sexual orientation of a gay public figure without that person's pennission. The exercise added Senators
    Jim Kolbe (Arizon) and Mark Foley (Florida) to the list of known gay legislators, which already included Steve Gunderson, Barney Frank and Gerry Studds.
  • Gay rights activists are stealing a page from the civil rights manuals in developing a two-prong attack. The battle in the legislature may only be a side show. Civil rights battles, historically, began as legal battles and only after a victory or two, would public opinion begin to shift. But the real battle may be in the courts, which are far more likely to concede rights to special interests groups then would legislators or public opinion. The employment of judges is immune from public opinion. US polls show that 67% of Americans oppose same-sex marriage. Most polls show that circa-1996 American citizens are shifting to the right of the political spectrum; not to the left, which is the natural home of gay rights activists. Even on the left, where Bill Clinton may have been expected to be found, the President has said he will sign DOMA, showing his support against same-sex marriage.
  • Some civil rights activists are horrified at the gay rights attempts to paint the debate as similar to historic American civil right battles. These attempts have been criticized as comparing discrimination based on "immutable characteristics" such as race, with distinctions based on the way a person enjoys sex.
  • DOMA appears to fly in the face of the American constitution. In effect, the DOMA exempts states from having to recognize a same-sex marriage conducted in another state where it may have been legally performed. Yet the American constitution says that all states must give "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." Gay rights lawyers are expected to challenge DOMA in the courts the minute Clinton
    signs it into law.

Once the dust settles from this long, emotional battle on Capitol Hill, it now seems clear that the promoters of marriage only for heterosexual marriages will have won the day. But the gay rights lobby has no intention of letting up. It seems clear that they consider the Senate votes as a mere setback. "We
are going to prevail just as every other component of the civil rights movement in this country has prevailed
," said gay congressman Gerry Studds (Democrat) during the House of Representatives debate.
"There is nothing any of us can do today to stop that." The Employment Non-Discrimination Act, defeated with only a one vote margin, seems destined to re-appear on the agenda of the American Congress.

Canada's federal House of Commons voted 153-76 to prohibit discrimination on the grounds of sexual orientation in federal workplaces under the country's human rights legislation earlier in 1996. Other countries have also proceeded with the advancement of gay rights. In September of 1996, Austria first same-sex (lesbian) wedding took place in a Vienna church despite controversy among religious groups.

III. Getting With The Beat

The Quebec law society has just released a fascinating report which calls for large-scale change to the way lawyers do business. In the report, entitled "The Future of the Profession", (PDF version available here) a special committee of the Barreau du Quebec reviews the current "state of the nation" for the profession and suggests lawyers get ready for wholesale change.

First off, the Report says that there is no "legal profession" anymore and that the old boy's club is a thing of the past. Now, there is only the legal services industry and it includes much more then just the certified members of the law societies. Lawyers are still at the "center of influence" of the legal services "industry" as, the Report suggests, the principle supplier.

The Report reviews the significant factors affecting the "industry", narrowing in on the aging population, reduction of government spending (including legal aid monies) and the transition of the marketplace towards "mind-based" industries as major factors of change. The Report also suggests that working knowledge and implementation of computer technology will not be an option for lawyers that want to survive. In Quebec, for example, only half of the lawyers even use a computer. Superior Court judges still do not have computers and it is estimated that only 20% cent of their secretaries even have word processors!

Of most interest, the Report looks at three options for the profession. The status quo involves doing nothing and would imply an 3.4 annual growth rate of lawyers per capita. The second option is called the "Albania Scenario" would involve a rigid enforcement of the restrictions regarding the practice of law in Quebec. Presumably, the Barreau would aggressively police paralegals and fight their arch-rival La Chambre des notaires, the provincial notary organization, for every inch of turf. The number of lawyers entering the profession would be strictly controlled.

The preferred option, according to the Report is what is called the "Singapore Scenario." This involves implementing quality management standards and an assertive role for the Barreau in addressing the poor image of the profession amongst Quebecers, both corporate and individual. Continuing legal education will remain a high priority and the bar will take a leadership role in providing basic legal information to their membership and the population at-large. New pricing options will have to be considered: "charging by the hour simply does not work anymore."

Perhaps the most valuable contribution of the Report is the demand that the "Barreau be an initiator of change", that it be prepared to develop alliances and to "take risks." In Canada, this has been a perennial problem where innate conservatism has prevented many law societies and their members from sharing legal information or, worse, from embracing new technologies, exploring new ways of delivering services and encouraging assertive and positive professional marketing. And running into an entrenched set of judges who hold strict ownership rights to the justice system relying on "indepndence of the bench", may become a very real, if not discreet show-stooper.

The Report is an invaluable assessment of the legal profession not only in Quebec but throughout North America. Some shortcomings of the Report include it's prediction that single-lawyer firms are on the way out because of the cost of new technologies. This is patently inaccurate. If anything, the constantly decreasing cost of legal information caused by new technologies will favour single-partner or small firms. From accounting to Internet research, software, hardware, legal research and communication prices are now easily within reach of the single lawyer firm. Many lawyers, given the choice, would probably prefer to work for themselves.

The Report does recognize that specialization is the way of the future and that small or single-partner firms will have to develop alliances with other firms to properly provide a full range of legal services.

The Report excludes stricter control of the production of lawyers in their preferred "Singapore Scenario." The Report argues that:

"... restricting access (to the profession) would appear as discrimination aimed at the young generation that aspires to the profession; and it is the young who are most attuned to the new values that govern our society."

But the young stand to lose as much as the old in the present glut of lawyers, especially in the USA. There is no reason why temporary quotas could not be implemented immediately, either through limited entry to law schools or to the Bar examinations, to reduce the number of lawyers in the market where the per capita proportion has reached ridiculous, unsustainable levels. It may not be the case in Quebec or Canada but in many US jurisdictions, it is. Temporary lawyer quotas are not inconsistent with contemporary quality management standards.

But the fact remains that the Report provides lawyers with a thoughtful, contemporary, in-depth, "take no prisoners" analysis of the legal services industry, the likes of which has never before been seen north of the 49th Parallel.

IV. Not A Pretty Kodak Moment

Kodak Inc. has run to Uncle Sam to complain about the 70% market share in Japan arch-rival Fuji Film commands. As the two exchange legal barbs, the world is witness to a new but not uncommon legal phenomena: "P.R. By Litigation."

Behind all international trade lies a complex body of international law. International law is actually an oxymoron. Technically there is no state to approve, enforce or interpret international law so it is not international at all. What it is is a series of international treaties which have been ratified verbatim by independent and sovereign governments by national laws ratified by each signatory of the treaty so that, as between the signatories, it is the same law and is called "intemational law".

World trade thrives on international law like corrals on a reef. This is the venue for Kodak versus Fujifilm.

Under international trade law, each country must maintain free access to it's markets to members of the World Trade Organization (WTO). If not, the WTO has set up trade dispute mechanisms including the establishment of dispute panels. The whole process has no real teeth or enforcement attached to it but members that refuse to abide by WTO panel rulings risk trade boycott by other members or, worse case scenario, expulsion from the WTO.

Kodak's case surrounds access to the Japanese film market, where Kodak has only been able to secure a 10% share. Ironically, this is the exact share that Fuji has in the USA. The 70% share that Kodak has of the American market is also the same share Fuji has of the Japanese market.

Kodak complains that Fuji uses a commission system to promote distribution of its film. In the USA, for example, Fuji contracts out to our sales agents. Kodak uses it's own staff.

To jump-start the process, Kodak first approached the US Trade Representative (USTR) stating emphatically that it has lost over $5.6-billion due to Japanese government restrictive trade practices. USTR moved the case to the WTO where, on October 16, 1996, a panel was established to hear the complaint. Kodak originally neglected to bring it's case to the Japan Fair Trade Commission (JFTC). For obvious reasons, it would appear. The JFTC is one of the bodies criticized by Kodak in it's May, 1995 petition to the USTR and is responsible for Japanese trade issues including anti-monopoly practices.

International law traditionally promotes the use of internal forums before recourse is allowed to international bodies.

What makes the case so interesting is the hidden public-relations-by-law agenda adopted by both parties. Kodak is of course gloating at the sponsoring of it's case by the USTR before the WTO. Fuji replies that referring the case to the WTO, rather than a more confrontational approach, is a victory for Fuji. "We recognize the difficult position the (USTR) finds itself," says Fujifilm lawyer Bill Barringer. "The best way to sell film is to work hard at it, not to chase after political substitutes for honest competition."

The phenomena of public-relations-by-law is also being played out in the computer industry, where Netscape has dragged Microsoft before the Department of Justice's (DOJ) antitrust division. The DOJ has gone after Microsoft before, with the last two investigations averted by last-minute manoeuvres by Microsoft.

This time, it's the Internet browser market that Netscape wants to "protect" complaining of antitrust behavior by Microsoft in offering it's Explorer browser for free. The DOJ has decided to investigate and Microsoft, just as Fujifilm before it, is complaining of a competitor trying to get government help
because it can not compete on it's own. Netscape is milking the antitrust card in the press for all it's worth.

So if you're a lawyer, the next time you're looking for a golf partner in your Rolodex, let your fingers walk past the "LAW" tab and turn to "Public Relations".

There might be a career move in it for you.

The End graphic

Posted in Legal Profession and Lawyers

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  • LAWmag 6 (October 26, 1996)