Law Times

PAGE 2 NEWS December 8, 2008 • Law Times 'We don't ask doctors to pay for medicare' Continued from page 1 "Long after they didn't make any money for me, I still worked on them," said the former London criminal lawyer. "I worked on them because it's the right thing to do." He also said he is in a good po- sition to handle the legal aid issue, noting, "I bring a knowledge of how the system works and the chal- lenges within it" and has been part of cabinet since the Liberals took hold of the government in 2003. "In politics, the timing is tim- ing, and the timing is not always predictable," Bentley told reporters after his speech at the conference. CLA president Frank Addario agrees with Bentley's view that legal aid cases are about giving back, but notes that the legal aid system has for 15 years been held together by criminal lawyers' in- tegrity and sacrifi ce. "My members are saying, 'Enough is enough,'" says Addario. "We don't, in a modern era, run social programs through service- provider charity. We don't ask doctors to pay for medicare; we don't ask engineers to pay for roads; we don't ask police offi cers to pay for public safety. It makes no sense to ask criminal lawyers to underwrite access to justice." Addario suggests the top tariff rate be raised to $160 to keep up with the consumer price index. Code and LeSage's recommended "enhanced" rate should be set at approximately $200, and their "ex- traordinary" rate should be around $300, says Addario. He says the enhanced effi ciency brought to the system by senior counsel taking these cases would make up for the government's extra costs to fund that increase within two years. University of Toronto law pro- fessor Michael Trebilcock, who earlier this year issued a report to the AG on the legal aid system, recommended an immediate increase of the tariff to $110. Bentley immediately responded to the report by ordering the place- ment of Crown lawyers who work big cases in police stations in To- ronto, Peel Region, Ottawa, and Windsor; talking to the federal justice minister on criminal law changes; and mandatory peer re- view of big case prosecutions. One aspect of the report that alarmed some criminal lawyers is a recommendation that the Law Society of Upper Canada more strictly enforce courtroom misbe- haviour by defence lawyers. "The LSUC should reconsider its present approach to courtroom misconduct, to the effect that it lies at the 'less serious end of the spectrum of professional discipline issues' and merits only 'remedial' responses such as letters of advice, invitations to attend, and regula- tory meetings," states the report. "When counsel's misconduct disrupts or distorts criminal pro- ceedings, especially long complex trials, it causes great harm to the administration of justice and is worthy of signifi cant penalties." Canadian Council of Crimi- nal Defence Lawyers chairman Bill Trudell, whose practice con- centrates largely on law society discipline cases, fears struggling judges will abuse that recommen- dation. He says warnings from judges may be replaced by full- out complaints to the LSUC. "The judges have an obligation to control their courts, and a judge who doesn't control their court will use this as an invitation to report a per- son to the law society," says Trudell. "It opens the door for judges who may not be as good or as patient or as disciplined as other judges." Judges need to exercise more discretion and "real control" in their courtrooms, says Trudell, "and not use this as a sword and an easy way out." Trudell also took odds with LeSage and Code's fi nding that judges have been put off by a lack of action from the law society on mis- conduct allegations from judges. "It's not been my experi- ence that when judges complain about lawyers that the law soci- ety doesn't treat it very seriously," says Trudell. "As a matter of fact, I think that they do." The report also suggests the development by the CLA and the Ontario Crown Attorneys Associa- tion of joint education programs to "revive the traditions of collegiality and respect between the Crown and defence bars." The full report of the Review of Large and Complex Criminal Case Procedures is available on- line at www.attorneygeneraljus. gov.on.ca/english/about/pubs/lesage _code/. LT Continued from page 1 and not as directed to lawyers rather than the public at large." However, the working group got the support of paralegal Bencher Paul Dray, who said he would be happy to swear to the proposed oath. He said paralegals and lawyers have the same pro- fessional obligations, and should therefore swear the same oath. "The good character of a paralegal is identical to that of a lawyer," said Dray. "When it comes to my responsibility to the court . . . I have the same responsibilities as a lawyer. I have the same responsibility to clients as a lawyer has, I have the same confi dentiality rules; I have the same trust rules." Treasurer Derry Millar backed Dray's view. "I think Mr. Dray makes a good point and I'd like to have the committee look at that," Millar told Convocation. The November report from the working group lists the con- cerns from Andrews and the AGM motion as follows: lawyers were against being considered a "class of licensee" rather than members; changes to the barristers' oath are undesirable, and the changes don't address lawyers' obligation to guarantee access to justice; and that the lawyers' oath must be "unique and distinct" from the paralegal oath. The working group's report points to the historical importance of the oath. It notes that the legal profession's history can be traced back over 1,100 years, and that, "An offi cial oath of offi ce has al- ways been required for admission to the practice of law since the recognition of the profession of law." The working group's report further states, "The signifi cance of the lawyer's oath is that it stamps the lawyer as an offi cer of the state, with rights, powers, and duties as important as those of the judges of the courts themselves." The proposed oath was drafted to highlight the "essential principles" of lawyers' ethical obligations, the working group noted, including "honour, good faith, integrity, honesty, fair- ness, courtesy, and civility," according to the report. The work- ing group also drafted the oath to "abandon negative, prohibi- tive, and prescriptive language in favour of an oath expressed to be in the fi rst person." Report points to historical importance of oath Oaths of contention The oath suggested by the working group on the lawyers' oath of offi ce, rejected by Convocation: In accepting the honour and responsibility of life in the profession of law, I promise that I will, in good faith, safeguard justice by recognizing and respect- ing the dignity of the court and the importance of the client's cause, however unpopular. I will accord civility, fairness and candour to all. At all times, and with my whole heart, I will champion the rule of law through diligent effort, whether in court or not, on behalf of all persons, whether powerful or frail, envied or despised, through strict adherence to the rules that govern members of our profession. So help me God. (I do so affi rm.) THE CURRENT OATH I swear (or affi rm) that I will conduct all matters and proceedings diligently and faithfully and to the best of my knowledge and ability. I will not seek to destroy any person's property. I will not promote suits upon frivolous pretences. I will not pervert the law to favour or prejudice any person. In all things, I will conduct myself truly, honestly, and with integrity. I will abide by the standards and rules governing the practice of law in the province of Ontario. I will seek to improve the administration of justice. I will uphold the rule of law and I will uphold the interests, rights, and free- doms of all persons according to the constitution and the laws of Canada and of the province of Ontario. LT The barristers' and solicitors' oaths, before changes made to law society bylaws for paralegal regulation: BARRISTER'S OATH You are called to the Degree of Barrister-at-law to protect and defend the rights and interests of such citizens as may employ you. You shall con- duct all cases faithfully and to the best of your abil- ity. You shall neglect no one's interest nor seek to destroy any one's property. You shall not be guilty of champerty or maintenance. You shall not re- fuse causes of complaint reasonably founded, nor shall you promote suits upon frivolous pretences. You shall not pervert the law to favour or preju- dice any one, but in all things shall conduct your- self truly and with integrity. In fi ne, the Queen's interest and the interests of citizens you shall up- hold and maintain according to the constitution and law of this province. All this you do swear to observe and perform to the best of your knowledge and ability. So help you God. (Or you so affi rm.) SOLICITOR'S OATH You also do sincerely promise and swear that you will truly and honestly conduct yourself in the practice of a solicitor according to the best of your knowledge and ability. So help you God. (Or you so affi rm.) — Robert Todd Looking for an easier way to attract attention? it's easy. www.lawtimesnews.com JobsInLaw_sailing_half.indd 1 11/5/08 2:50:47 PM

• Cover
• Stays On Bench
• Second Opinion
• Focus On ADR/Mediation