TLOMA Today

As I write this, we are 227 days into a 14 day “flatten the curve” lockdown. I know we all have our own feelings and opinions surrounding all things COVID-19. And discussing said feelings and opinions is often like discussing politics – basically the same as treading shark-infested waters.

However, over the past couple of weeks I have been having more in-depth conversations with people about how they are currently coping with the pandemic and my overall impression is that most are not. Coping, that is. Many are feeling COVID-19 malaise. The days go by in a blur and all the joking about “what day is it” is truly more reality than humour. It’s like you blink and another week has passed you by. Nevertheless, I think it is important to pause and recognize where we are all at and how we are feeling. It is also important to acknowledge that life is going to carry on like this, for the foreseeable future and we need to plan accordingly. I can’t speak for anyone else, but I know I have been guilty of not doing this. Initially, I did try to take little breaks during the day to “step away” from it all. More recently, my days just seem to be never-ending and I feel like I am never not working.

Pre-COVID, this would be the time I would be planning days off and holiday events and parties, making shopping lists and perhaps even thinking of a trip for the new year. As we know, this year the holidays will definitely look different than in the past. And “planning” takes on a new meaning. But that doesn’t mean you shouldn’t do it. Even simple planning like scheduling your day so you are not sitting in front of your computer for 12 hours or booking a day or days off to physically be away from your desk so you can truly take a break. Maybe you need a break from your environment – plan for a weekend away up north at a local resort that offers outdoor activities or maybe you just need a day on the couch, watching Netflix, with no one to disturb you. It is important to evaluate emotionally and mentally where you are at and what you need to do to keep yourself healthy and well. Talk about it if it makes you feel better or don’t, if it doesn’t. Overall, just recognize that we are all in this together and we will get through this, right now, it’s just one day at a time.

Last week, TLOMA ratified the incoming 2021 Board of Directors, SIG Leaders, Conference Vice Chair as well as the Compensation Chair and Vice Chair. I am thrilled to welcome the following volunteers for next year:

Incoming TLOMA 2021 Board of Directors

Incoming TLOMA 2021 SIG Leaders (Non-Board Positions)

Incoming TLOMA 2021 Conference

Colleen McHugh               Vice Chair

Incoming TLOMA 2021 Compensation

Hannah Won                      Chair
Nelly Meira                         Vice Chair

Thank you to Pamela Harris, Past President, Celine Gilmore, Marketing SIG Leader, Misha Rasitsan, Technology SIG Leader, Lori Overend, 2020 Compensation Chair whose terms finish at the end of 2020.  Their valued contribution of time and effort in ensuring TLOMA continues to bring educational and professional development value and access to such a talented network of members has been most appreciated!

I would also like to thank this year’s Nominating Committee for their hard work over the past few months. As with everything these days, the current global pandemic may have made the Committee’s job just wee bit more challenging this year. That said, everyone stepped up and worked well together to bring forth amazing volunteers for next year.

Membership renewals have just been sent out. New this year: a 10% discount if you renew before November 30^th.  Act now to redeem your savings!

We continue to plan for the future while keeping in mind the challenges we are all facing as we do so. This includes conference planning. Katie Donaldson, our TLOMA 2020 & 2021 Conference Chair, has included an article in this month’s newsletter. Please be sure to read it and keep an eye out for further updates and information as they become available.

Events to watch for:

• November 12 – Facilities SIG: The Future of Work: Exploring Strategies to Support Transition & Engage Your Teams
• November 18 – Human Resources Event: Public Speaking: Owning your Story and the Stage
• November 24 – Human Resources SIG: Benchmarking your Benefits Plan to Remain Industry Competitive
• November 26 - Virtual Holiday Networking Event
  
  

As I wrap up this month’s message, I realize that many of my past messages have included thoughts and comments about COVID. It has not been my intent to obsess over the topic or even bring a disheartening vibe to my messages. I believe it is important to discuss these matters, especially during these times given that no one has “all the answers”; we are just figuring this out together. At the end of the day, I hope we all recognize TLOMA as a place where we can come together to collaborate, share and support each other during these tumultuous times. And when these times are over and we are allowed out to play again, we will still be there to support one another as well as to celebrate that we made it through this, together.

“Life isn’t about waiting for the storm to pass; it’s about learning how to dance in the rain” – author unknown.

Dear TLOMA Members,

It’s hard to believe that the dates for our 2020 Conference have come and gone without the opportunity for us to connect in person. While working on what's in store for next year, we want to include more of you - our members - in the process.

Therefore, we plan to send out a survey early January to get feedback on what you want out of your 2021 Conference & Trade Show. When you get the survey, please take three minutes to fill it out. In the meantime, feel free to get in touch if you have any comments or concerns. We’d love to hear from you.

Stay safe and be well,
Your 2021 Conference Planning Committee

As a result of COVID-19, the workplace will be forever changed. We won’t step back in time, simply “returning” to our former offices. Instead, we will be moving forward to a new place - modified in strategic ways - incorporating new practices, new protocols, and new technologies.

They will incorporate the lessons learned from our extended time working from home, an experience that many firms have transitioned to with minimal friction, and free us from the office.

All this adds up to a future in which people will want to work from home more frequently than they did before the pandemic. Despite declarations from some that full-time WFH arrangements will remain after COVID-19 restrictions are lifted, there are many indicators that permanent WFH is not sustainable for culture and talent development, nor is it a replacement for the speed of trust and collaboration that's built through face-to-face work. Collaborative work moves forward at the speed of trust that is built into our relationships.

The Gensler U.S. Work From Home Survey 2020 shows with real data that most people want to return to the office the majority of their week.

So why does the legal profession want to return to the office? Our research shows that the top reason lawyers want to come back to the office is the people. In fact, 72% of respondents from the legal industry say their colleagues are what they miss the most about the office. While WFH has made it possible to keep momentum for most work functions, it is not a perfect substitute for work that's done together. Given a choice, we would rather be working in person much of the time.

This all begs for a change in how the workplace functions. As we start making the transition back to the office, and as we resettle more permanently, the kinds of collaboration, teamwork, and meetings that make up our daily work lives will need to embrace a new “hybrid reality” — a blend of analog and virtual participation that could well redefine how we accomplish work going forward.

What will the new hybrid workplace look like?

The legal profession, once steeped in tradition and precedence, is rarely thought of as a first mover when it comes to embracing sweeping change. However, in discussing the impact of COVID-19 on courts, the Chief Justice of the Ontario Superior Court has stated, “we have been forced and the Ministry has been forced to accelerate its plans to move to electronic hearings and also to electronic filings and we cannot go back….it is time for Ontario to push forward…we cannot go backwards.”

While in the short term, boardrooms have been repurposed as courtrooms a return to the office demands that we create an ecosystem of office-based experiences that employees cannot get at home in order for a hybrid future to be successful.

Productivity myths around working from home have been thoroughly debunked. In fact, a report from NordVPN (March 2020) revealed that Canadians increased their average workday by 2 hours since the onset of the pandemic.

Remote work has also made it clear which spaces best facilitate collaboration, focus, learning and socializing. What’s emerging is a hybrid future, with people working and collaborating from home and from the office. Again, this backed up from our research which revealed that when lawyers return to the office, 60% reported they expect more choices in how to work, including increased opportunities to work remotely.

Right-sizing spaces for hybrid work behaviours requires the law office of the future to align meeting spaces to the types of collaboration that occur in-office as opposed to virtually, for example; in the future generative ideation meetings will be prioritized as in-person events, whereas evaluative decision-making meetings will happen virtually.

Cue the “hybrid workplace,” a pivot away from both the open plan and perimeter offices that hug the windows. Built on the idea that with fewer employees physically present on any given day, offices can offer more flexibility of layout and management.

This will require an enhanced technology infrastructure to support seamless virtual connection opportunities in the physical workplace, ensuring the collaboration experience is consistent for both in-person and virtual participants.

The hybrid office will have at its heart a planning principle based on people rotating in and out of the office, with flexible schedules they have more control over than ever. I believe its biggest draw will be more varied workspaces for collaboration, and a chance to be away from a distraction-filled home.

Anyone that knows me on a personal level is aware of my passion for travel.  At the end of each “busy season” I would treat myself to a trip where I could explore a new geography and experience the culture through walks in villages and tasting new foods at the local markets.  Like many other travellers, COVID has grounded me and there are no flights planned anytime soon.

These missed adventures had me thinking about the failing airline sector and the last time I was on a plane – listening to the safety announcement.  Yes – I am one of the few passengers who pays attention to the flight attendant as he/she walks through the various safety features on the plane.  The oxygen mask message jumps to mind as I reflect on COVID’s impact on your roles as leaders – specifically, have you placed your mask securely on your face before making sure your team has their mask in place?  What are you doing to take care of yourself so that you are in the best position to support your team to the meet the firm’s objectives?

The topic of “self-care” comes up regularly in discussions with our clients, in particular, taking care of oneself to be in the best position when the proverbial “sh*t” hits the fan during a crisis.  The reality is – there is never enough time, and in periods of crisis – you need to make time to rebuild the energy bank that will sustain you.  What that means will be different for everyone who reads this article.

A reoccurring theme with our clients during the initial workplace shut down was the elimination of the commute and how best to use that time to focus on oneself.  For many, that included giving themselves permission to use the “found” time to set-up an exercise plan – for example, using the treadmill that had become a clothing rack, taking up yoga or simply a walk in the neighborhood with the kids or the dog.  For others, the exercise regime was already in place – the body was moving but our clients were “stuck in their heads”.  In those cases, we talked about meditation, getting into the habit of mindfulness and journaling as an effective way to channel the mental rumblings into a productive path forward.

For others, there was no found time – it’s busier than it has ever been and there is no extra time – now what?  Sometimes, it’s as simple as giving ourselves permission to be selfish.  Yes – that means making time for our ourselves and acknowledging that it is okay.

What’s worked for me? I have become a big fan of podcasts and audio-books.  Both options provide me with “me time”.   I listen to content for business and pleasure while I get some exercise walking the dog and explore my passion for cooking with meal prep.  In the interest of sharing, here are some suggestions that have hit my radar in the last six months:

• A recent Harvard Business Review Podcast “HBR Ideacast – The Subtle Art of Saying No” was particularly helpful with practical strategies on how to protect your time before taking on new commitments (link https://podcasts.apple.com/us/podcast/the-subtle-art-of-saying-no/id152022135?i=1000492120349).
• Malcolm Gladwell’s audiobook “Talking to Strangers: What we should know about people we don’t know” was impactful on a personal and professional level as I look to broaden my skills to manage conflict.
• For my fellow travellers who are itching for an adventure, Kristin Hannah’s novel “The Great Alone” (available as an audio-book) fed my curiosity of exploring the Alaskan landscape.    

How ‘surprise and delight’ boosts your brand and bottom line 

While the common denominator of pickles, French fries and apples would appear to be food, McClure’s Pickles, Five Guys Burgers & Fries, and Apple Inc. employ the value of “surprise and delight” to vault past their competitors.

Apple embeds surprise and delight into technology and design of its devices. Five Guys throws extra fries into the takeout bag. McClure’s stuffs extra pickles into the jar regardless of whether they’re broken or in bits. So, even if these products and services cost more, this unexpected value enables these companies to build their brands, create fans, and boost their bottom lines.

Bottom lines are a focus for many legal service providers, too, and autumn is when most of them plan and budget for the upcoming year. This has been a brutal year in many respects, and we will be dealing with the COVID-19 pandemic’s effects for a long time. Looking ahead to 2021 and the years to come, legal industry entities that want to grow and sustain business must adopt a “surprise and delight” value culture.

What Value Is And Isn’t 

Value is a quality of worth. It’s a qualifier of someone or something held in high esteem. Value is personal, tangible and subjective, and it’s recognized when it has been experienced.

Value is not transactional; neither does it equate to cost, although it’s possible to put a price on it, as in “worth its weight in gold.” Like gold, value can increase and decrease depending on factors such as effort, time, and scarcity. And being at the core of every important relationship or circumstance, value doesn’t warrant gilding with modifiers such as “added” or “proposition.”

Most importantly, value doesn’t happen by magic; it requires forethought, timing and care. Oftentimes, it requires planning and budgets.

What Clients Value

The economic ramifications of the pandemic mean that clients call the shots and will influence how legal service providers function now and in the future. What used to be nice-to-haves are now expectations to provide value.

Client expectations include speed in responsiveness and matter turnaround as well as business acumen and the application of astute legal thinking and guidance. Collaboration with clients and other service providers is now even more valuable as rosters of external legal service providers are trimmed. Any legal practitioner should be able to provide these assets.

Other enrichments include research, industry information and customized data flowing to clients by firms and lawyers with the ability and wherewithal to do so. Legal service businesses do this as a matter of course.

While these types of services are often provided part-and-parcel, they can be commoditized as subscription packages. Commoditization is one way to put a price on value, with client reactions indicating if these services are valuable.

Another way to put a price on value is to build it into the up-front cost.

Secondments are the platinum level of value for law firms investing in key clients. This can involve term seconding of a lawyer to a client, or permanently embedding a lawyer within a client’s legal department, sometimes laddering in talent every few years. Because they often rise to leadership positions, seconded lawyers can cement the client-firm relationship.

Then there’s money. With collections being problematic, financing schemes may enable clients to pay bills more gracefully. This requires creative payment plans and clear client communications. A helpful tactic is to provide alternative fee arrangements on each piece of a tightly scoped service, with detailed invoices and regular billing periods.

Discounting is prevalent, but discounts are dangerous. They can trigger a perception that worth is on a downslide and set a new low from which it is difficult to recover. While discounting affects revenue, it can severely damage profit margins once operating costs are considered. Better to set a price and augment value.

While not exhaustive, these are all tangible value offerings. However, there is also value in giving of yourself. This can be as simple as proactively engaging in empathetic conversations to say hello and ask what someone needs to make life easier, while providing a listening ear and a helping hand — off the clock.

The point is that value isn’t free. There’s a cost in terms of effort, time and care. However, value is the key component of client service that surprises and delights. This in turn builds loyalty and the bottom line.

Everyone loves a great deal or getting something for free, but when fraud is involved there is always a high price to pay. Fraudulent business activities are not limited to a particular industry, so we all have to be vigilant when it comes to protecting healthcare benefits.

The overall wellness of our society is drastically affected when healthcare benefits are abused. This has been sadly evident in recent news stories that shed light on various investigations throughout Toronto.

Healthcare Benefits Fraud In The News

• July 2019 - Approximately 150 employees were either fired or resigned from Baycrest Health Sciences after allegedly defrauding their benefits insurer for several years. Employees submitted receipts for products and services not received including one person with $20,000 in false claims. The geriatic hospital initiated a third party investigation, but it’s not clear if criminal charges will follow.
  
  
• November 2019 - After a lengthy investigation, the Toronto Transit Commission settled a lawsuit with their benefits insurer that involved an alleged orthotics scam. Over 250 employees were either fired or resigned with an additional 14 people being disciplined. The $5 million lawsuit was seeking damages from a scheme that allegedly included employees submitting false receipts with the insurance payout being split with a clinic.
  
  
• August 2020 - A Peel Regional Police officer was charged with fraud over $5000 and forgery related to an alleged unspecified healthcare benefits scheme. The 13 year police veteran was suspended with pay and is scheduled to appear in court on October 5th.

Signs Of Benefits Fraud

If it seems too good to be true, it probably is! Beware of clinics that offer various types of incentives with the purchase of a medical device or service. Offers of free shoes, gift cards, cash back or any kind of free merchandise is illegal and is not the regular practice of a legitimate clinic or practitioner.

Clinics and/or practitioners should not be billing for products or services that have not been sold or rendered. It is also considered fraudulent to submit claims for products and services that are not medically necessary.

Podiatry, chiropody, optometry, orthotics and massage clinics are among the various healthcare disciplines that have been exposed to benefits fraud. No one is exempt, but we can all do our part by rejecting unethical and illegal behaviour. Otherwise, the consequences could be severe for anyone participating in benefits abuse, including patients, practitioners, clinics and orthotics labs. (The manufacturer)

Make Sure You Know Who You’re Dealing With

Whichever wellness partner you choose, make sure that they are forthcoming with information and that they operate in an honest and transparent manner.  You’re on the right track if they’re helpful and willing to answer all the questions you can throw at them.  You can also look for wellness partners through industry organization you may be a part of.

Did you know pre-entry COVID screening for all employees and essential visitors is now the law in Ontario? On September 26, 2020 the Ontario government amended O. Reg 364/20 requiring pre-entry workplace screening.  The basic requirements are as follows:

• Screen all employees and essential visitors at every workplace
  
  
• Screening must be completed before or at the time of entry to a workplace
  
  
• Screening must be active requiring individual questionnaires (signage is not sufficient)
  
  
• Screening must include questions regarding symptoms, travel outside of Canada within the last 14 days, and contact with a probable or confirmed case of COVID-19
  
  
• If an employee answers yes to any question, then they are not permitted to enter the workplace
  
  

It is uncertain how compliance will be enforced. As per law firm, Mathews, Dinsdale & Clark LLP,

“Immediate, vigorous enforcement of the new requirement seems unlikely.  However, enforcement could come as time passes and, in particular, if a gap in screening is identified as part of an investigation of a COVID-19 case in the workplace.  Given the recent increase in cases in Ontario, the chance of a COVID-positive worker being in the workplace appears to be increasing.  Therefore, those responsible for workplaces would be well advised to immediately take steps to implement a pre-entry screening system and to ensure screening is taking place.”

There are several examples of bulletins on the amended O. Reg 364/20 issued by several law firms that are publicly available including possibly your own.

The amendment to O. Reg 364/20 provides employers flexibility to comply. The government provides a paper-based questionnaire form that can be used and stored for recordkeeping.  This can be an effective solution for small businesses.  For larger employers, for example, if you have 50 employees with 20 workdays per month, that will mean 1,000 forms per month. If there was an infection risk at work, which is looking more likely everyday in Ontario, it may not be practical to sort through all that paper for contract tracing.

 A good exercise for all workplace administrators, whether they are in Operations, HR or Health and Safety, to test the robustness of their screening and contact tracing system is to run a COVID-19 infection drill.

Imagine an employee or visitor calls you and tells you that they have developed symptoms, have tested positive for COVID-19, or have a possible contact. How long does it take you to develop a list of contacts and send out a communication or provide the list to Public Health?

Workplace administrators should review how long is takes them to gather the list and send out a communication.

A paper-based or unsophisticated digital solution may take hours or days to sort through that information.

Tip: A method for evaluating the robustness of a digital solution is to check that it can generate a list for contact tracing within minutes.

This enhanced response time is critical in managing spread; it may even be lifesaving for certain people. Your employees and visitors will be grateful for the investment you have made in their health and safety.

A case study has been demonstrating the speed provided by a robust, digital approach to workplace screening and contact tracing. This case study is based on a real-life situation that happened in September 2020 that prevented the spread of COVID-19, got the impacted people the information and health resources they needed and prevented a workplace shutdown, all within minutes.

When considering a digital approach, please ensure that all privacy and security considerations are being met. Compliance with PIPEDA, having Canadian data stored in Canada and ensuring all data is encrypted end-to-end is extremely important. The data included in a workplace screening system is located at the intersection of employment, health, and privacy law; privacy and security must be ensured.

Even though screening while working at home is not mandatory under O. Reg 364/20, it is a recommended best practice.

By screening at home, administrators are provided the history of an employee’s risk factors. This is extremely important when evaluating a request to come into the workplace for a day or even for an hour for a meeting. 

For example, imagine if an employee did the workplace screening at home and reported they had symptoms. A few days later, they wanted to come into the office for a meeting and reported they did not have symptoms during the workplace screening since they were feeling better. Since they did the screening while also at home, the administrator will have the details and history about the symptoms experienced a few days ago and would be able to advise that they not come in. Within the next few days, if the employee starts feeling worse again, the HR administrator was able to minimize contact and the risk of spread by having the historical insight.

Even before Covid-19 happened – and now very much more since it has – Canadian law firms were looking to move their data and systems into the cloud. This is a good decision. But in the process, what’s puzzling me is that firms are only asking one question: “Where will my data be stored?”

Now, don’t get me wrong. This is a reasonable enquiry to make. Clients may want their data to be in Canada and the firm may feel more comfortable, or find it more practical, to have its data resident in the same jurisdiction. And of course, as we all know, if data is stored in the USA, under the terms of the US Patriot Act, the US Government is entitled to access it, should it wish to do so.

So, yes, it’s absolutely fine to check, when you look to move into the cloud, where your firm’s data will be held. But my issue is simply this: it’s an important question to ask, but – and I cannot emphasize this strongly enough – it’s not the ONLY question to ask. Because what actually matters is whether your clients’ data is safe.  

The big mistake I’m seeing Canadian law firms make at the moment is that when moving to the cloud they diligently check where their data will be held. And once they’re told it will be in Canada, they accept that as a full and final answer – and they don’t ask anything else!

Where Risk Lies

So what I see happening at the moment is that there’s a particular focus on the US Patriot Act. In fact it’s almost a fixation. Firms are determined to keep their data away from the prying eyes of Uncle Sam. And I get that. However, let’s conduct a reality check. Ask yourself just how likely it is that the CIA actually wants to know what a family law firm in Ontario is doing? I’m not saying it couldn’t ever happen. I’m just saying that the probability is extremely low.

Meanwhile, north of the border, Statistics Canada conducts an annual Canadian Survey of Cyber Security and Cybercrime (CSCSC). In 2017, just over one-fifth (21%) of Canadian businesses reported that their operations were affected by a cyber security incident, despite the fact that they were spending a reported $14 billion to prevent, detect and recover from cyber security incidents. [1]

Worse still, in 2019 a CIRA (Canadian Internet Registration Authority) cybersecurity survey found that 71 per cent of organizations reported at least one cyber-attack that affected the organization in some way. They experienced impacts on time and resources, incurred out of pocket expenses, and even paid ransoms.[2]

Even closer to home, the Canadian Bar Association found that 33 per cent of Canadian firms with between 10 and 49 attorneys have reported data related security breaches in the past 12 months. It suggests that Canadian law firms have a one in three chance of sustaining a data security breach, versus an infinitesimal chance that through some freakish collision of circumstances, the government of the United States of America may suddenly want to access their data. It’s about really understanding the odds and connecting it to managing the risk.

My point is that clearly the balance of risk lies with data security; not with data residency (where it’s physically stored) or with data sovereignty (the jurisdiction within which it’s stored). Data security is the clear and present danger. So firms have to stop fixating on where their data will be held and instead focus on the area where the actual threat exists.

And it’s not just me that thinks so. In fact the Canadian Bar Association doesn’t require data to be held in Canada. But it does expect client data to be handled safely and its confidentiality assured. Moreover, the Law Society of Ontario states in its Rules of Professional Conduct that: “A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship....”[3]

Since there is clear evidence that significant potential exists for the firm’s data to be hacked by cybercriminals or otherwise misappropriated, a failure to ask about data security provision is in effect a failure to safeguard the integrity of your clients’ information assets. In other words, a breach of your Rules of Professional Conduct. So, yes, one question is: “Where will my data be stored?” But the next question has to be: “How are you going to ensure the safety of my data?”

Asking For Credentials

What should firms be looking out for? For one thing, we know that a high proportion of data breaches are as a result of human error, or malicious action. So, whoever is looking after your data, you need to ask what employee background checks they’re running. Firms should ask who will have access to their data; how it’s encrypted; and importantly, what provisions are in place to enable the firm to recover its data in the event that the cloud provider goes out of business. 

Firms should also ask for evidence around the provider’s adoption of recognized ISMS (information security management system) policies and procedures. ISO/IEC 27001 and 27018 are two well-recognized and highly-regarded ISMS standards to look out for. Going one step further, firms can go as far as asking the cloud supplier evidence of third-party audit of the provider’s ISMS policies and procedures.

In summary, when moving your data out of your premises and into the facility of a cloud provider, a firm must check the cloud provider’s entire ISMS which encompasses their people and their processes and technology specifically as it relates to security and encryption, and ensure that it’s working with a certified, regulated organization. To fail to do so is arguably in breach of your Rules of Professional Conduct.

Do not assume that because your data is being held in Canada that it is safe just because it’s in Canada! You are exposing your firm to a considerable risk if you fail to ensure that the cloud provider you choose to work with isn’t providing adequate data security provision. Understand that the real risk lies in data security, not data residency – and address that risk.