Law Times

Page 2 JUNe 16, 2014 • Law Times www.lawtimesnews.com NEWS Lawyer Ben Hanuka, who had said Glustein's ruling "sets a dan- gerous precedent" at the time of the original finding, says the judge got it right in the June 5 decision. "Modern versions of law firms, as important as they are, should not take priority over the protec- tion of the public," he says. In this particular case, Stinson was right to find nothing indi- cates to the public or clients that the Davenport Law Group isn't a law firm, says Hanuka, noting lawyers should be careful about how they portray themselves. "It's not enough to say, 'We're not a firm,'" he adds. But Alexander tells Law Times the move to remove him was sim- ply a question of "tactical advan- tage." He says he's representing the same client in a separate ac- tion against the same defendants and notes that in that case, the defendants haven't attempted to remove him. Stinson failed to identity ex- actly what confidences he and Fox could have shared, he says, noting the theoretical basis for the deci- sion to remove him. As to the Davenport Law Group, "it's a group of lawyers, it's called a group," he says. "It's a street address. That's all it says." Although the Davenport Law Group isn't a law firm, other practices that call themselves law groups are in fact law firms. Frank Addario of the Addario Law Group says his practice is "a strict firm." It's important that lawyers working in association erect "sub- stantial barriers" to confidential- ity breaches and have evidence to back up their assertions, says Addario. "It seems fair that people should take up the opportunity to create the evidentiary basis for esta blishing that they're not as things appear," he says. "If it looks on the appearance of it that there's a single shared network of lawyers but the reality is different, it's not that difficult to put that in front of the courts." To Stinson, although it's "de- sirable" to allow lawyers to be mobile and work in association, putting up the appearance of a law firm could be a tactic used by sole practitioners to attract clients. "Indeed, in the absence of any public disclaimer, the logical in- ference is that one of the reasons [the lawyers at DLG] choose to represent themselves in such a fashion, utilizing a common firm name, is to create the impression for clients and others that outsid- ers are somehow dealing with a group of lawyers, and not merely with a sole practitioner, or at the very least a lawyer who has re- sources available beyond those which might be available to a law- yer who practises alone," he wrote. Stinson also suggested lawyers who work in association should put in place the same conf lict search system as law firms and implement measures to ensure confidentiality. But according to Alexander, that proposition is "dangerous" as lawyers who work in association would have to reveal their clients to each other in order to perform a conf lict search. Law firms do- ing conf lict searches don't have to worry about that issue as all cli- ents are theirs, he says. Still, the Davenport Law Group will make it "a little bit more explicit" that it's not a law firm, says Alexander. "We could maybe say association on [our let- terhead] but . . . at the end of the day, most of these things are tacti- cal," he says. LT Draft your own customized documents with O'Brien's Encyclopedia of Forms, Eleventh Edition, Wills & Trusts, Division V. This service provides a comprehensive collection of estate planning precedents, tips and hundreds of clauses that can be inserted as required. Expert commentary provides context for the precedents. 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Otherwise, the pro- vincial office has expressed concerns about how it would advance abuse claims without "further trau- matizing [the clients] by asking questions about their experiences" and has questioned the "minimum evide ntiary threshold" for certain types of claims. "The PGT made no submission to us on any con- cerns they had with the draft claim form prior to the approval of the claims forms by the court in March 2014," said Baert in his letter to Conway. Both in November and December 2013, after the settlement approval hearing, the public guardian No claims filed as August deadline looms Continued from page 1 "was encouraged" to begin investigating claims before the claims pro- cess began. "It is not clear to us when the PGT started this process given the infor- mation that has come to our attention," wrote Baert. The letter includes allegations the public guardian provided erro- neous information to class members about who could actually make claims that suggested it was only class members or their formal legal rep- resentatives who could do so. "This false information by the PGT and the Administrator was a sig- nificant concern raised by the litigation guardians, Community Living Ontario and People First Ontario at the time as it was a serious impedi- ment to people making claims on behalf of class members, which the Settlement Agreement was intended to avoid," wrote Baert. "We were forced to satisfy all of those stakeholders that such a re- striction did not exist in this settlement." The claims period commenced on April 4 with a deadline of Aug. 5. At the end of April, the public guardian asked the administrator to review its clients' files to determine if they had suffered harm. "We advised the PGT that it was the representative's responsibil- ity to make the necessary investigations to submit a claim and that it would be inappropriate if this responsibility was pushed to the Ad- ministrator or any other person," wrote Baert. "This proposal concerned us that the PGT was seeking to abdi- cate its responsibilities." As it turned out, the public guardian had sent questionnaires to its clients, their workers, and family members in early 2014. Baert sought a copy of the questionnaire, but to date the provincial office hasn't provided it. "It was not clear to us what effort, if any, the PGT had undertaken to speak with any of these individuals to actively investigate their cli- ents' potential claims," wrote Baert. The public guardian then asked the administrator to revise the claim form approved by the court. Among other things, it wanted a form it could use for mail merges. "While we provided the PGT with electronic versions of the claims forms, we were also concerned that the PGT would be mak- ing multiple claims at once by using 'mail merges' without sufficient individual investigation," wrote Baert. "We responded accordingly seeking to avoid what, in our view, was an unnecessary revision to the approved claim form." As of June 5, halfway through the claims process, the public guardian had made no claims on behalf of its clients, citing what it called a "lack of response" to the request to revise the claims form and the fact it hadn't received "school" records. But Baert maintains his firm had responded to the request for a revised claims form and believed the public guardian had agreed to a resolution. "We were also concerned that the PGT has not made timely re- quests for resident files, which may jeopardize its ability to make claims for its clients before the claims period expires," wrote Baert. "Finally, we were concerned that the PGT was waiting to submit claims for its clients until it could submit all of the claims at once." Baert alleges, then, that the public guardian may "fail" in its fi- duciary duty to the class members it represents. He suggests it has a duty to "actively investigate" its clients' claims and expresses concern that it hasn't taken any steps to conduct interviews. "This is mostly about the level of investigation that the PGT has undertaken," says Rosenfeld. "That's the information that is sorely lacking." LT The judge got it right in overturning last year's decision, says Ben Hanuka.

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