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December 8, 2008

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A.NEUMAN ASSOCIATES INC. McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 $3.55 • Vol. 19, No. 39 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM 'Enough is enough' Criminal lawyers press for action on legal aid tariff BY ROBERT TODD Law Times following the release of the LeSage and Code report, but lawyers say meaningful change rests on a sub- stantial boost to the legal aid tariff. Attorney General Chris Bentley T addressed that ongoing demand at the recent Criminal Lawyers' Asso- ciation conference in Toronto, say- ing he's waiting for the right time to make the request to his cabinet colleagues. But with the current fi- nancial crisis, Bentley told lawyers while he's "determined to strength- en" the legal aid system, not to ex- pect an increase anytime soon. "We prepare to make sure that on this issue, which has been part of our lives for so long and is so important to justice in the province of Ontario, we make sure that when the ask is made, it stands the greatest chance for suc- cess," said Bentley in a speech at the conference. That wasn't good enough for Ottawa criminal lawyer Mark Ertel, who noted during a question- and-answer session with Bentley that other reports released earlier this year described Ontario's lawyers as having "palpable" anger over the legal aid tariff. "[But] I like to think of it more like frus- tration; the frustration that Pavlov's dogs have when they press the food lever but no food's coming out anymore," said Ertel. "We'd like you to say, 'I acknowledge as the attorney general that the legal aid plan is broken and it needs to be fixed' and I'm wondering whether he provincial government has unveiled key reforms to the criminal justice system The legal aid tariff has remained at levels set in the late 1980s, with small increases totalling about 15 per cent introduced in the last few years, the report notes. Long, complex trials "represent a significant economic sacrifice for leading members of the bar whose normal fees to private clients are at rates several times higher than the legal aid rate," read the report. As a result, noted the report, 55 per cent of big case management mat- ters are being handled by lawyers with less than 10 years of experi- ence, and 28 per cent are being taken care of by those with less than four years of experience. "We appear to be trapped in a Photo: Phil Brown Attorney General Chris Bentley told Ontario's criminal lawyers he's 'determined' to address legal aid tariffs, when the time is right. you're prepared to do that or not." The debate over the legal aid tariff, which currently peaks at $97 an hour, reignited when former Ontario chief justice Patrick LeSage and University of Toronto law professor Mi- chael Code released their report on large and complex criminal case procedures. Among their 41 recommendations was a call for Legal Aid Ontario and the AG to cre- ate a higher tariff rate for big cases. The rec- ommendation is aimed at ending the current situation in which leading members of the bar rarely take on long and complex cases because the tariff isn't in line with their substantial over- head costs and "mature practices," according to the report. vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a legal aid cer- tificate; and yet having leading counsel conduct the defence in these cases is one of the solutions to the overly long trial, as it is these counsel who are most likely to conduct the trial in an efficient and focused manner," stated the report. The authors said a committee of LAO officials, experienced lawyers, and retired judges should make a list of lawyers eligible for the "enhanced" or "exceptional" fees. They also recommend that ju- nior counsel get paid more for going to a trial with senior counsel in big cases. That suggestion targets a lack of training for younger lawyers. Bentley made a pitch to lawyers, suggesting they keep in mind that legal aid cases are a form of public service. See 'We, page 2 Oath committee sent back to drawing board L BY ROBERT TODD Law Times aw society benchers have told an ad hoc committee to go back to the drawing board on the contentious task of revamp- ing the lawyers' oath of office. Bencher Bob Aaron — who said he found the proposed oath "per- shareholder agreements, leases, real estate transactions . . . ?" asked Aaron. "There's nothing in here about that. We completely ignored the half of this profession that are solicitors." Concerns regarding the new oath were part of a motion passed at the LSUC's 2008 annual general meet- ing, held in May. The motion called Her concerns included dismay the oath had been rewritten and lawyers and paralegals now swear essentially the same oath. The oath was altered in April 2007, when the law society passed an omnibus motion amending its bylaws in preparation for the start of paralegal regulation on May 1, 2007. The professional development The significance of the lawyer's oath is that it stamps the lawyer as an officer of the state, with rights, powers, and duties as important as those of the judges of the courts themselves. sonally offensive" — told Novem- ber Convocation that the proposed oath was irrelevant to solicitors. "Where does it fit into the 'rule of law,' the 'dignity of the court,' when someone is about to take this oath and plans to spend his entire career, or her entire career, drafting wills, trusts, doing corporations, for amendments to the law society's bylaws to replace the term "licensee" with "lawyers" or "barristers and solicitors," and asks that lawyers in good standing be called "members." The law society also received a letter regarding the oath in October 2007 from Rexdale Community Legal Clinic lawyer Karen Andrews. and competence committee created the working group on the lawyers' oath of office in April 2008. Bench- ers Heather Ross, Susan Hare, and Alan Silverstein were appointed to it. They are expected to come back to Convocation next month with another proposed oath. Bencher Jack Braithwaite said Together we have all the tools To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! ® ® PROTECTION AS GOOD AS IT GETS 1-800-410-1013 ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. 1 Focus On ADR/ Mediation Quote of the week "Everyone knows that women make more effective mediators." –– Leslie Macleod, mediator, Leslie H. Macleod & Associates See It's, page 10 3 Stays On Bench Covering Ontario's Legal Scene ntitled-6 1 Call 416.223.5991 Investigative & Forensic Accounting Specialists Proven Expertise December 8, 2008 1/8/08 3:28:10 PM Inside This Issue 7 Second Opinion 8 the motion passed at the annual general meeting was directed to- ward restoring the traditional oath, and that the working group's efforts to completely overhaul the oath would inevitably lead to criticism. "At the end of the day, no mat- ter how good or all-inclusive on the surface it may be, it still will not satisfy, I would suggest, the person who dropped this motion [at the AGM], and I would also suggest it will not satisfy the peo- ple in the community." Braithwaite said it may be nec- essary to go to the professions for consultation on the new oath, "and that'll go on forever." In a general critique of the style of the proposed oath, Bencher Tom Heintzman said, "I find the new oath, as heroic as it may be, not as solid, not as dignified, not as clear, See Report, page 2 Untitled-3 1 12/2/08 2:46:28 PM

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