Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2010 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. December 13, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guar- anteed. Contact Jacquie Clancy at: jclancy@ clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter A big year for Bay Street consolidation I t's the biggest legal news story of the year that you won't find in Law Times' annual Top News, Newsmak- ers, and Cases supplement. Sadly, the announcement by Ogilvy Renault LLP that it was joining the in- ternational legal practice known as the Norton Rose Group came out just after the supplement had gone to press. (Yes, we work ahead of time.) You'll find lots of great content in the supplement this week. But that doesn't take away from the fact that it was a big year on Bay Street. A flurry of activity began with news last month that Lang Michener LLP would fold into the Mc- Millan LLP brand through a merger of the two firms. Ogilvys followed up with its blockbuster deal with Norton Rose shortly after. Then, in a smaller but still noteworthy development, Miller Thom- son LLP revealed its deal with Balfour Moss LLP (see Law Times, page 3). The news about Ogilvys has had law- yers talking. In joining the legal behemoth whose revenues are set to pass $1 billion as a result of the changes, Ogilvys has made a bold move that appears to be a bid to outmaneuver its Canadian competition on the international scene. Ogilvys has a reputation for moving cautiously on ex- pansion, generally choosing to open new offices in Canada on its own rather than growing through mergers, and has been reticent to start up international outposts in comparison to other big business firms. But the Norton Rose deal marks a signifi- cant departure from that tradition. Whether that will be good for the firm and its Canadian lawyers is still up for debate. On the one hand, Ogilvys has emphasized the need to follow the shift of economic activity to emerging markets. In joining Norton Rose, it has bypassed the conventional model of expansion through often-small outposts abroad. The route it has chosen may help it garner more in- ternational files with Canadian aspects but, of course, the reverse could be true in that other Norton Rose partners may get some of its work. At the same time, the lack of a Norton Rose presence in the United States is a gap it has yet to fill. Overall, the deal makes sense for Ogilvys given the absence of overseas offices other than its branch in London, England. It may also help it attract other firms' partners along with their interna- tional clients. Miller Thomson's latest move also looks good as Saskatchewan is a top economic performer right now. As a result, it's likely we'll see simi- lar deals in the future, whether through mergers between equals (Lang Michener and McMillan); between giants and re- gional players (Miller Thomson and Balfour Moss); or between national and international firms (Ogilvys and Norton Rose). The changes may have negative implications for some individual lawyers caught up in the tide, but despite the legal industry's largely protected status in Can- ada, firms are wise to follow the shifts in economic activity if they're going to grow and prosper. — Glenn Kauth the Crown is recommending to the court or may realize that by pleading guilty, they can play their get-out-of-jail-free card. Lawyers are taught it's im- E proper to have an innocent cli- ent plead guilty. But it happens every day. Is it always unethical to do so with people maintain- ing their innocence? Some clients protest and posture. The case may be over- whelming, but some people want to maintain their dignity. They, not counsel, must enter the plea themselves and be made aware that no one will consider them innocent in the future after enter- ing the plea. I once went to the jail to take written instructions in a case like this but to no avail. After signing them, the client said, "Ms. Con- way, as God is my witness, I did not do it." (In the meantime, I had blurted out, "Don't say an- other word!") I was on my way up to court the next morning to get off the record when I ran into a man looking for the courtroom thical problems can arise with guilty pleas. Clients may like the position To plead or not to plead guilty A Criminal his friend was in. "His lady lawyer is making him plead guilty," the man said. Then there are clients whose cases could really go either way, such as in a domestic matter in which, although she struck first, he hit back with greater force. Intoxication often precludes clients from having any recollec- tion of the events. If such clients are prepared to admit the Crown's case and if the court permits it, they can enter a plea of not guilty with an agreed statement of facts. In these circumstances, it assists if the judge is advised that the cli- ent has no objection to the court finding him guilty. Life would be much simpler for criminal lawyers and the courts if nolo contendere (essentially, "I don't dispute the charge") was an available plea in Canada. Some courts in the United States may permit nolo conten- dere or the Alford plea. Nolo contendere is the "no contest" plea. By contrast, with the Alford plea, defendants as- sert their innocence but agree that there's sufficient evidence to find them guilty beyond a Mind By Rosalind Conway reasonable doubt. Domestic assault cases are tough calls for counsel. Clients who have probably never been charged before find themselves separated from their spouses and facing a criminal record. In On- tario, we have the early interven- tion program. In exchange for an early guilty plea, the Crown may offer the opportunity to return home immediately plus a conditional discharge if the cli- ent attends a group counselling program. A trial date is many months away. A guilty plea may be almost irresistible, but such clients may well be innocent. In these cases, the best approach is to vary the bail now so there's no urgency to make a decision. As I mentioned earlier, some cases could go either way. Coun- sel must give the best possible advice on what the result of a www.lawtimesnews.com guilty plea would be so clients can make an informed deci- sion. If the injuries are shock- ing or the telephone calls are disturbing, you may advise clients that despite the perhaps tenuous defence they're float- ing, the better route might be to see what the Crown would want on a guilty plea. Then meet with the client again to get proper instructions. Rule 4.01(9) of the Rules of Professional Conduct requires that the lawyer representing the client on plea negotiations do four things: first, advise the client of the prospects of an ac- quittal or finding of guilt; sec- ond, inform the client of the implications and consequences of the guilty plea and the discre- tion of the court; third, estab- lish that the client is voluntarily prepared to admit the actus reus and mens rea; and fourth, con- firm that the client is voluntarily instructing counsel to enter into a plea agreement. If the client maintains factual innocence in private, counsel can- not mislead the court and must part ways with the accused. Cli- ents can then retain new counsel and provide different instructions or can represent themselves. But should an accused have to forgo legal representation due to an equivocal plea? Unfortunately, nolo conten- dere and its variant the Alford plea are simply not options in Canada. We've even codified the available pleas in Part XX of the Criminal Code. Section 606(1.1) requires that the court be satisfied that the accused understands that the plea is an admission of the essential ele- ments of the offence. While the public may be disappointed in watching an ac- cused not accept responsibility in the form of a conventional guilty plea, the courts could save time and clients could avoid the uncertain coin toss of going to trial. Ironically, permitting these equivocal pleas would suit the objectives of the Justice on Target program well. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

• Cover
• Western Union
• To Plead Or Not
• Focus On Criminal Law