Law Times

PAGE 2 NEWS New mentoring program for courtroom misconduct Protocol lets judges send errant lawyers back to class O BY ROBERT TODD Law Times ntario's judges have a new means of enforcing civility in their courts with a protocol that will let them refer lawyers for mentoring from senior members of the bar. "It will be incredibly help- ful if an issue that a lawyer is having can be successfully fixed by a mentoring session rather than having it escalate and the lawyer being subject to some- thing more serious," says San- dra Forbes, president of The Advocates' Society. "In this day and age, there are so many more lawyers, and maybe we don't have the type of mentoring that was in existence 10, 20 years ago. So we see this as an opportunity to provide somebody with the assistance that will make them a better counsel and avoid any further issues down the road." The new protocol, which is completely voluntary and confidential, will apply to the Superior Court of Justice and Ontario Court of Justice. It was created by the Law Society of Upper Canada along with the top judges of the two courts, chief justices Heather Smith and Annemarie Bonkalo respec- tively, and Ontario Chief Justice Warren Winkler. The protocols are a response to 2008's "Report of the Review of Large and Complex Criminal Case Procedures" by former On- tario Superior Court chief justice Patrick LeSage and former Uni- versity of Toronto law professor Michael Code, who is now a Su- perior Court judge. The report singled out the breakdown of decorum in the courtroom as a key factor in faulty proceedings. It also criti- cized the law society's approach to lawyers' courtroom miscon- duct, saying such behaviour often merits more serious pun- ishment than letters of advice, invitations to attend, and regu- latory meetings. "When counsel's misconduct disrupts or distorts criminal pro- ceedings, especially long, com- plex trials, it causes great harm to the administration of justice and is worthy of significant pen- alties," said the report. In response, law society Trea- surer Derry Millar and Bencher Glenn Hainey, a member of the LSUC's professional regulation committee, met with the prov- ince's judiciary, the Ministry of the Attorney General, and legal organizations to consider how to deal with its findings, according to a report to Sep- tember Convocation. Judges backed the creation of a procedure that would allow them The protocols give judges three options for dealing with lawyers' courtroom malfeasance. They can exercise the contempt power for the most serious cas- es or refer misconduct to the law society for consideration through the normal regulatory process. The third option is the new mentoring route, reserved for incidents that judges don't believe merit the use of law soci- ety misconduct procedures. The report noted the law so- Sandra Forbes sees the new program as an 'opportunity' to make people better lawyers. to refer a lawyer to the law society for mentoring, said the report. "In many cases, the judges feel that the conduct, although inappropriate, does not warrant a full law society complaints in- vestigation with the serious con- sequences that could result from that process," read the report. The result is a set of formal- ized protocols that make way for both traditional forms of re- mediation and judges' requests for mentoring. Both courts, the LSUC, the Ministry of the At- torney General, the Criminal Lawyers' Association, and The Advocates' Society are backing the protocols. ciety will consider requests for mentoring based on a lawyer's complaint history. If the LSUC decides mentoring is not the right route to take based on that back- ground check, the matter may go to its complaints resolution or in- vestigations departments. When the law society opts for mentoring and the lawyer agrees to participate, a senior member of the CLA will handle the issue if it relates to a crimi- nal matter while The Advocates' Society will get involved on the civil side. When the lawyer is a Crown prosecutor, the Ministry of the Attorney General will deal with the conduct. The results of the mentoring session will then go back to the law society, which will finish the process by report- ing the outcome to the court. Some benchers questioned what would happen when law- yers decline mentorship, but LSUC chief executive officer Malcolm Heins appeared to put their concerns to rest. "The point is that under these protocols, it is the law society that determines, in the final analysis, what is suitable for mentoring or what's suit- able for a complaint," he told Convocation. "It's entirely possible for a court to refer a matter for men- toring, and we look at it and we say, 'No, this is a totally different threshold. We need to be in con- trol of our conduct; under our rules, under our interpretation of how a counsel should act, this needs to go to the complaints committee.' And that is the way it will be run." LeSage, who is counsel at Gowling Lafleur Henderson LLP, backs the new protocol and tells Law Times that most lawyers will see the benefit of accepting mentorship. "Responsible lawyers will rec- ognize it as a positive, construc- tive step," he says. Millar, meanwhile, plans to host a series of meetings this fall and winter throughout Ontario on civility in the profession. The meetings will include speeches from judges, senior practitio- ners, and law society profes- sional regulation staff. Law- yers, paralegals, and articling students have been invited. LT OctOber 5/12, 2009 • Law times Better Results Faster GET THE WESTLAW® CANADA ADVANTAGE Only Westlaw® Canada offers the sheer depth of content that helps you examine your case or issue from every angle. Intelligent finding tools and effective research pathways bring relevant, on-point content right to the surface – quickly and efficiently. More than just information, you get insight you can use to make critical decisions, create compelling arguments, and achieve better results for your clients. DEEPER CONTENT Go beyond case law and legislation to get the true insight you need. INTELLIGENT FINDING TOOLS Leave nothing to chance with finding tools that ensure you never miss a case on point. EFFECTIVE RESEARCH PATHWAYS Experience seamlessly integrated research that's illuminating and efficient, not confusing and frustrating. www.westlawcanada.com 00152JB-A11798 MM2 09/09 Carswell_LT_Oct5/12_09.indd 1 www.lawtimesnews.com 9/30/09 11:31:16 AM

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