Law Times

lAw Times • April 20, 2009 NEWS PAGE 3 Lawyer fights Crown on Rowbotham fee BY ROBERT TODD Law Times A Toronto defence lawyer is digging his heels in against the Crown over who should determine remuneration in a case involving a Rowbotham order, where the Crown is ordered to pay an accused's legal costs. While the Ministry of the At- torney General is holding fi rm on its policy of paying counsel on such cases at the legal aid rate, Daniel Brodsky argues that the Crown should have no say — or even knowledge — of the wage he is garnering in a case. "I just wanted an indepen- dent, arms-length arbiter to decide the tariff ," says Brodsky. "I didn't want the person who wants to put my client in jail for the rest of his natural life, po- tentially, to be deciding who the lawyer should be and how much that lawyer should be paid." Th e case involves fi rst-degree murder accused Amin Kasim, who was granted a Rowbotham order by Ontario Superior Court Justice Ian Nordheimer in December 2008. Th at move followed the May 2005 granting of a legal aid certifi cate. In February 2007, however, Kasim changed lawyers, with that new lawyer giving way to a third lawyer in April 2007, according to Nord- heimer's Dec. 19 decision on the Rowbotham application. Kasim on Aug. 12, 2008 — about a month before the trial was set to begin — again asked to change lawyers. Legal Aid On- tario denied that request, and two appeals of that decision were rejected, said Nordheimer. Brodsky was willing to act for Kasim as amicus curiae on the case, noted Nordheimer, but the judge ruled that type of repre- sentation "is not a substitute for one's own personal counsel." Said Nordheimer: "In the in- terests of ensuring that the appli- cant receives a fair trial and given the limited history of changes of counsel, I considered it appro- priate, indeed prudent, to make a Rowbotham order requiring the attorney general to provide funding for Mr. Brodsky to act for the applicant at his trial." Nordheimer then reiterated the fi xed trial date in the matter is Sept. 14, told Kasim not to ex- pect the court to make a similar order if he gets rid of Brodsky, and adjourned the matter to Jan. 13 for the Crown and Brodsky to discuss remuneration and other issues of his appointment. At a March 27 hearing in the matter, Nordheimer noted that he had previously planned to hear submissions from Brodsky on why he should receive remuneration at a rate higher than the legal aid tariff , but had since changed his mind. Brodsky had sought an order allowing him to submit a bill he thought fair, and if it were decid- ed that only the legal aid rate was merited, "he would then seek to tax his accounts and argue the matter of the appropriate rate at that time," said Nordheimer. Th e Crown, meanwhile, asked for an order providing that Brodsky would be paid at the legal aid rate. "As the argument proceeded before me, I became increasingly convinced that neither Mr. Brod- sky's approach nor the Crown's approach was the appropriate one to be applied to the issue that pre- sented itself," said Nordheimer. "Contrary to my earlier view, it is now apparent to me that the court should not involve itself in the issue of the rates to be paid to counsel pursuant to a Row- botham order." Nordheimer noted the pos- sibility of an "impasse" between the two sides on the matter. "On the one hand, Mr. Brod- sky might refuse to accept the re- tainer if he must also accept being paid at legal aid rates, although I would note that Mr. Brodsky candidly said on the December appearance that he would under- take the case at legal aid rates if the court did not allow a higher rate," said the judge. "I recognize the possibility, how- ever, that Mr. Brodsky might change his mind in this regard. I also appre- ciate that Mr. Kasim might refuse to accept a counsel other than Mr. Brodsky no matter how qualifi ed One year will get you life. ...an exciting new life in the world of law as a Legal Assistant. Post-secondary education or business experience is all you need to get into Humber's unique Law Firm Profile program. You'll get classes filled with practical, hands-on applications, and we'll place you into one of several of Canada's most prominent law firms for 7 weeks of paid on-site training. All this is accomplished in only two semesters, so you don't have to do any unnecessary time. Call 416.675.6622 ext. 4371 and get a (new) life. it's the LAW umber_LT_Apr20_09.indd 1 Apply now! Program starts in September For a 30-day, no-risk evaluation call: 1.800.263.2037 Ontario College Application Service #0214L www.business.humber.ca www.lawtimesnews.com Ontario Family Legislation (LT 1-4x3).indd 1 4/16/09 2:41:11 PM 4/15/09 4:10:31 PM Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0126 'I just wanted an indepen- dent, arms-length arbiter to decide the tariff,' says Daniel Brodsky. that counsel might be." Nordheimer later stated, "It seems to me that the formal terms of a Rowbotham order do not require anything other than an order that the Crown is to provide funding for counsel for Mr. Kasim failing which the pro- ceedings are to be stayed, unless otherwise ordered." However, the judge made clear that if Kasim takes an "unjustifi ed position" that leaves him unrepre- sented, the Rowbotham order may be revoked. Th at likely would lead to the appointment of an amicus curiae, said the judge. Kasim has issued a direction stating that he only wants to be represented by Brodsky. Brodsky says the next hear- ing in the matter is set for today, April 20. Th e Crown outlined its posi- tion in an April 14 letter to Brod- sky. Crown counsel Jeremy Glick said that based on the factors that Brodsky had previously stated that he would take the fi le at a le- gal aid rate and only wanted to ar- gue a court order for a higher rate, that Nordheimer ruled the court could not make such a ruling, and that the Crown only funds such cases at legal aid rates, "it is not clear that there is anything to be negotiated with respect to the rate of compensation." Glick stated, "Th ere is no basis for a stay of the proceedings under these circumstances, since the min- istry will have met its obligations." While Brodsky says he is still willing to take the case on for the legal aid rate if a judge so orders, his arguments cut to the heart of fairness in the justice system. "It's no business of the Crown to know whether my client is on legal aid or paying me privately," he says. "It doesn't advance the case one bit, and it does impart information that I think is generally covered by solic- itor-client privilege." Brodsky says he would like to see the Crown agree to a pro- cess in which someone without a stake in the case decides on the defence counsel's rate of pay. "I'm not comfortable with the prosecutor trying to fi nd the cheap- est counsel to set the rate," he says. Andras Schreck, a regional di- rector of the Criminal Lawyers' Association, says for cases like amicus curiae, the Ministry of the Attorney General should not be using the tariff as a benchmark for counsel remuneration. "Th ey're not being paid by le- gal aid, they're being paid by the Ministry of the Attorney General of Ontario," he says. "Th e most apt comparison, in our view, is the tariff the [ministry] pays when it retains counsel for its own purposes." Schreck says the ministry pays outside counsel with 10 years of experience, retained for its own uses, $192 per hour. "If the ministry wants to hire me to help the ministry, they say I'm worth $192 per hour," he says. "If the court wants to appoint me to assist the court, the ministry says I'm only worth $92 per hour. And we say there's just no principled reason for that." 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• Cover
• Fight Over Fees
• Financial Matters
• Focus On ADR/Mediation