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PAGE 2 NEWS February 8/15, 2010 • Law Times LSUC makes misconduct cases public more quickly Change among several amendments to regulator's handling of disciplinary matters BY TIM SHUFELT Law Times C hanges to the Law So- ciety of Upper Can- ada's disciplinary re- gime will soon apply to lawyers who run afoul of the bar as well as to their victims. In the ongoing eff ort to mod- ernize the regulation of Ontario's lawyers, Convocation at its Janu- ary meeting imposed new stan- dards for public disclosure of disciplinary matters, established a kind of plea-bargaining system for expedited conduct proceed- ings, and changed the way it compensates people who have been defrauded by lawyers. Th e changes will impose more accountability and effi - ciency, benchers said. "Th is is consistent with the trend that the law society has been following . . . to make all of our processes more transparent to the public that we serve," Bencher Tom Conway said in advocating for more prompt disclosure. Until now, the regula- tor has released information about lawyers subject to dis- ciplinary action just weeks in advance of hearing dates. While that information is technically publicly available once the LSUC initiates pro- ceedings, it routinely wouldn't disclose it without a formal request from the media or a member of the public. "It was a 'don't ask, don't tell' policy. Unless you ask specifi cally about a com- plaint, you wouldn't know about a proceeding against a solicitor until a month or perhaps a few weeks before the hearing," Conway said. Th e motion approved by Convocation calls for making that information available on the law society's web site once it issues a notice of application or a referral. "Th e issue really is about timing," Conway explained. for his courtroom tactics. As was the case with the disciplinary action against Murphy, failing to publicly release notices of application when they are issued can create the perception that proceedings are initiated pri- vately, Conway said. In addressing concerns about the risk of publish- ing unfounded or malicious complaints, Conway said the LSUC would still evaluate the merits of each complaint it receives. "No proceeding gets start- 'It was a 'don't ask, don't tell' policy,' says Tom Conway. Th e law society was the sub- ject of recent criticism for its dis- ciplinary procedures after Kevin Murphy, a defence lawyer in a Brockville, Ont., murder trial, faced misconduct allegations Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE 1-800-265-8381 www.mckellar.com www.mckellar.com $3.55 • Vol. 20, No. 13 Covering Ontario's Legal Scene April 20, 2009 BY ROBERT TODD Law Times F 'Shock and disappointment' Cosgrove says 'life goes on' after the bench people in public office, and they were given little weight, according to the decision." dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier committee report ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- earlier Court, he says a decision was un- his mandatory retire- at likely before his Cosgrove month after the CJC issued a final re- late- resigned port stating that his ment took hold in Decemberecember. earlier this 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's his actions in a late- CJC's determination that the issue i the ssue of public confidence was central to its decision. He suggests that it that it remains unclear what evidence is required to make such a determination. Cosgrove's final criticism unclear what inquiry the Federal Former Superior Court justice Paul Cosgrove tells Law Times that his om the bench pending mandatory retir ng mandatory etirement compelled him to resign from rather than battle a call for his ouster. the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have Financial Matters with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from See Cosgrove, page 4 9 Focus On ADR/ Mediation criticism is the Inside This Issue 3 Fight Over Fees 6 grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and "It is now incumbent on sports federations in selection disputes to show they had the proper criteria set up and that it was properly applied . . . The onus is now on the organiza- tion not the athlete. It wasn't quite as clear a few years ago." Quote of the week BY TIM NAUMETZ For Law Times Future uncertain for McCarthys' Ottawa office OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context "Yeah, I guess, like any organi- staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. Consideration of the future of that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community say McCarthy Tétrault's Ottawa re- view may be related to a management See Ottawa, page 4 www.lawtimesnews.com ed unless it passes muster with the proceedings autho- rization committee, so there has to be a reasonable basis for the application." Convocation also ap- proved a two-year pilot project designed to process conduct hearings more quickly when both sides make a joint submission. As a result, when a lawyer or paralegal admits to misconduct allegations and consents to a joint penalty, the new pre-pro- ceeding consent resolution con- ference will be able to fast-track the investigation and hearing. "It's dealing with our cum- bersome process to permit early resolutions and eff ectively what in a criminal context might be called plea bargains," Bencher Paul Schabas said. Either the licensee under investigation or the law society itself can initiate the process. Th e two sides would then negotiate on admissions and penalty. Currently, after the proceed- q Send me 1 year of Law Times for only $135.00 (Total with GST: $141.75) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times ings authorization committee mandates a prosecution, a full investigation and disciplinary hearing process must follow even if the lawyer admits the misconduct and seeks a quick resolution. According to an LSUC committee report, joint sub- missions will reduce the time and expense to investigate and prosecute a complaint. In a mortgage fraud case, for example, law society counsel may invest 200 to 400 hours, the report said. More complex cases require even more time. Accused lawyers can also avoid signifi cant expense by agreeing to the alternative process. Committee members esti- mate that about 10 cases a year LT_1-4sub.indd 1 Visit us online! Online Ad 1/8 5X.indd 1 12/16/09 11:04:45 AM will be fast-tracked under the pilot program. However, cases involving more severe allegations or nov- el issues won't be eligible for the process, the report said. On the victim side of law- yerly misconduct, Convoca- tion overhauled the committee charged with compensating those who fall prey to dishon- est practitioners. Th e compensation fund committee approves payments to members of the public who have suff ered losses at the hands of a lawyer or paralegal. From August 2007 to August 2008, the committee doled out $2.3 million to claimants related to the misconduct of 40 lawyers who were suspended, disbarred or permitted to resign. Since 2000, there have been 10 grants exceeding $500,000. According to a law society re- port, the largest single claim went to victims of a disbarred lawyer identifi ed as "WMc." A total of 105 grants in that case amounted to $3.9 million. "It's a very important part of this society's functions," Bencher Tom Heintzman said. He recommended, and Convocation approved, reduc- ing the size of the committee from nine members to fi ve to include two lawyer bench- ers, two lay benchers, and one paralegal bencher. "You just don't need nine people to do this job," Heintz- man said, adding the new com- position strikes a good balance and sends the "right message to the public." Th e responsibilities of the review subcommittee, which examines recommended grants in excess of $5,000, were also rolled into the newly formed fund committee. A smaller committee would be best positioned to assume both the policy and grant re- view functions, the report said. "It would be in the interests of the fund if those performing the grant-making role could apply that experience to infl uence pol- icy review and development." One of the lawyer benchers must chair the committee, a refl ection of the nature of the bulk of the claims made to the law society, Heintzman said. "We pay a lot of money for lawyers so far and very little for paralegals." LT canadianlawyermag.com & lawtimesnews.com Fresh content delivered weekly. 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• Cover
• LSUC Relaxes Rules
• McLachlins Decade
• Focus On Intellectual Property/Trademark Law