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November 23, 2009

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McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com $3.55 • Vol. 20, No. 37 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM Covering Ontario's Legal Scene From Marriage Contracts To Divorce Judgments and Everything in Between Visit www.divorcemate.com today! DMOne lug_LT.Feb.09.indd 1 When can counsel withdraw from a case? Professional standards insufficient to monitor lawyers, Crown warns BY TIM SHUFELT Law Times S hould the Supreme Court of Canada decide to limit the authority of judges to pro- hibit lawyers from walking away from trials, oversight of the with- drawal process will effectively dis- appear, warns a federal Crown. Ron Reimer argued before the top court last week that profes- sional standards aren't enough to monitor lawyers withdrawing from representation in criminal trials. "The idea of effective oversight by the law society is a bit illusory," Reimer says. "A trial judge has a role in terms of supervision of counsel and in ensuring the ad- ministration of justice." In the case of R. v. Cunningham, Greg DelBigio argues the law society can handle cases of lawyers unethically withdrawing from cases rather than leaving the issue to the courts. the top court is considering how judges handle requests to withdraw and whether courts have the jurisdiction to review those requests, a de- cision that could change the rules for criminal lawyers in several provinces, including Ontario. Last week, the Canadian Bar Association intervened in the matter, arguing in favour of the right of counsel to get off the record. If courts are given the authority to review and lawyers are compelled to submit to the court their reasons for withdrawal, breaches of solicitor-client privilege will surely arise, the CBA says. When a request to withdraw from a crimi- nal proceeding arises, courts should simply operate under the assumption and expecta- tion that lawyers uphold professional stan- dards, says Greg DelBigio, past chairman of the CBA's national criminal justice section. "Should we presume that lawyers conduct themselves ethically? We think yes," DelBi- gio says. The issue first arose when Jennie Cunning- ham, a lawyer with the Yukon Legal Servic- es Society, asked the court to remove her as counsel of record for a man accused of sexual assault offences against a six-year-old girl. The accused man's legal aid certificate was revoked as a result of unreported income. A territorial judge, however, denied Cunning- ham's application, citing the resulting trial delays and possible harm to the Crown's case should the child's memory fade over time. That decision was later reversed by the Yukon Court of Appeal, which noted a principle followed in British Columbia: "That a court has no right in law to order counsel to continue in the defence of an accused after counsel has ad- vised that he or she will no longer represent the accused." Reimer asked the Supreme Court not to apply that standard to the rest of the country. "[In B.C.], they don't offer the court any reasons why they're go- ing, just a courtesy goodbye," he says. Currently in Ontario and oth- er provinces, courts reserve the authority to find a lawyer who refuses to remain, "barring good reason," in contempt. Should the Supreme Court now decide to uphold the appeal court decision, it would effectively afford lawyers greater freedom to withdraw from cases while diminishing the capacity of judges to prevent them from leav- ing or even inquire into dealings between law- yer and client. The CBA asserts that lawyers who with- draw unethically will be duly reprimanded by the law society. Reimer, however, questions that oversight process. See Misconduct, page 4 conduct sparked a harsh rebuke by a Superior Court judge in a long-running trusts-and-estates saga. Firm attempted 'naked cash grab,' judge rules A BY TIM SHUFELT Law Times Toronto law firm will possibly be on the hook for legal costs after its grab" on two elderly clients. Polten, whose experience in- cludes domestic and internation- al family and estate law matters, also misrepresented himself to the court and was in breach of his professional duties as an officer of the court, Brown said in a judg- ment released this month. According to Sandra Schnurr, says the judge's decision speaks for itself. "I'm satisfied but I'm not jubilant. Whenever I see a colleague at the bar being harshly criticized, it makes me uncomfortable," she says. In representing Johanna Mik- sche, a Scarborough woman who died two years ago, and her sister Ursula Lill, Polten racked up more Such a misrepresentation is a breach of his duty to this court to act with candour and honesty and constitutes most serious misconduct on the part of the advocate. Polten & Hodder, along with lawyer Eric Polten, was the subject of strongly worded con- demnation from Justice David Brown, who said the firm ran up "scandalous" legal costs and "at- tempted to perpetrate a naked cash counsel for the estate trustee, the legal gossip mill is churning with news of the ruling. "It already seems to be well TitlePlus_LT_Feb9/16_09 2/4/09 2:02 PM Page 1 known. I've had numerous lawyers comment to me on it," she says. On the ruling itself, Schnurr than $1 million in legal fees that he first tried to recover from the Mik- sche estate and then from the older sister, who was the primary benefi- ciary, the ruling said. 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TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. 1 Focus On Environmental Law Quote of the week "We've used so much of the environment for free, and it isn't free. The environment, in economic terms, is called a public good, but by definition a public good was never paid for unless it was quantified through a government initiative. People just used it." — David Young, partner at Lang Michener LLP, See Government, page 12 Sponsorship Woes 8 Biting Letters 9 November 23, 2009 1/29/09 3:17:39 PM Inside This Issue 3 vulnerable person satisfy the scan- dalous costs he ran up, Mr. Polten came before me on this applica- tion attempting to poach upon the assets of another vulnerable person. From such conduct, I conclude that Mr. Polten was pre- pared to use any means to place his financial interests in this pro- ceeding ahead of those of his for- mer clients," Brown wrote. "Such conduct merits the strongest con- demnation by this court." When reached for comment, Polten would only say that he would be appealing the decision. "The matter will be dealt with in the notice of appeal," he says in response to questions about specific criticisms in the ruling. "I presently have no other comment." See Court, page 4 www.lawtimesnews.com

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