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October 5, 2009

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ......... Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 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 Inc. 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. OctOber 5/12, 2009 • Law times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • 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@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@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 Remember the 'forgotten group' in our legal system H ow would you like to make $65,000 annually after 10 years of practice? Many lawyers would likely laugh at the thought, especially given the massive debts law students leave school with. But that's the reality for lawyers help- ing Ontario's poor with everything from housing problems to employment and income issues at the province's commu- nity legal clinics. With pay equity, clinic lawyers make a few thousand dollars more, but even with that money their salaries fall far short of their counterparts in other public sector agencies. Legal aid, of course, is an ongoing is- sue for many lawyers in Ontario, espe- cially for the criminal defence bar. They say the recent three-year, $150-million boost announced by the government won't go far enough, but Attorney General Chris Bentley should get some credit for emphasizing community legal clinics as a priority for the new funding. That's despite their status as the "forgot- ten group" in Ontario's legal system, says Walter Van de Kleut, chairman of the Association of Legal Aid Lawyers. Van de Kleut's organization repre- sents everyone from duty counsel to staff lawyers at Legal Aid Ontario's law offices to practitioners at community clinics. He is happy for the new fund- ing but worries it won't do much to re- lieve the gap, especially since it will de- liver just $15 million in the first year, an amount that will rise in subsequent budgets. "The problem is that $15 mil- lion isn't going to address what's really needed," he says, noting LAO is already suffering a massive budget shortfall. Of course, the general public might not empathize with lawyers complain- ing about making $65,000 a year. But while working as a clinic lawyer involves some notion of sacrifice for public ser- vice, Van de Kleut points out his orga- nization's members who work as LAO staff office lawyers make even less. The big challenge is that other law- yers in the public sector make consid- erably more. A 2000 call working as a Crown prosecutor, for example, gets $144,000 a year, according to Van de Kleut. Those staffing the new Human Rights Legal Support Centre, mean- while, make about $90,000. The problem, then, is staff reten- tion. "That's why we can't keep our law- yers," Van de Kleut says, noting clinic lawyers typically leave after three years. Obviously, the pot of legal aid mon- ey is only so big, meaning private de- fence lawyers airing their grievances are going after the same funding as their clinic counterparts. That's not to say ei- ther group has a more valid complaint, but it appears evident that divvying up the money while addressing the gaps will be a daunting challenge. So far, the government has been vague on the details of the funding given its plans to set up advisory groups to direct where the money will go. That's fine, but with legal aid in what appears to be a very tight squeeze, we need answers soon on how the government will ensure the system works. For now, it's hard to see what the solution will be. — Glenn Kauth wo South Africans in Canada made interna- tional headlines recently when they successfully asserted that whites are a persecuted mi- nority in their native country. But while efforts by Ottawa immigration lawyer Russell Kaplan resulted in a surprising victory for his client Brandon Huntley before the Immigra- tion and Refugee Board, Kaplan is now in a conflict of interest and should withdraw from the case as the federal government seeks a judicial review. Kaplan made two critical mis- takes in the case. First, he offered his sister as a witness. Second, he released the IRB's decision to the media and failed in his attempt to black out the information about his sister and other mem- bers of his family. Now that this information has become public knowledge, Kaplan finds himself and details of his family at the centre of controversy. As a result, Kaplan is left simultaneously trying to pro- tect his family's privacy and the interests of his client. Kaplan T Conflicted lawyer should withdraw from refugee case Second should now help his client get a new lawyer. All clients are entitled to the complete and undivided loyalty from their lawyer, a notion the inspiring words of Lord Brougham at the 1820 trial of Queen Caroline spelled out: "[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons and, amongst them, to himself, is his first and only duty . . . ." This duty of "zealous advo- cacy" requires lawyers to do such things as keep client confidences and avoid conflicting interests. Other responsibilities, such as candour and fairness that the law- yer owes to the courts, also come into play, but the advocacy duty remains the dominant paradigm in Canada's legal profession. Thus, Kaplan shouldn't be faulted for raising the argument that his client faced persecution if he returned to South Africa. What is shocking, of course, is Opinion By Adam Dodek that the board actually accepted his assertions, particularly since the IRB doesn't have a reputa- tion for being very receptive to novel claims of persecution. In many cases, lawyers are frustrat- ed by the board's refusal to ac- cept claims supported by human rights reports from organizations such as the U.S. State Depart- ment, Amnesty International, and Human Rights Watch. Of course, none of these organizations have produced reports on the persecution of whites in South Africa, so Kaplan did what any diligent lawyer would do: he looked for the best evidence he could find to support his client's claim by finding a white South Afri- can who was willing to testify about the alleged persecution she had experienced. www.lawtimesnews.com The problem was that this witness is his sister. In legal ethics, we often talk about "a gut check" or, even better, "bar stool eth- ics." What would ordinary people sitting in a bar think of this? In Kaplan's case, many people are recoiling from his revelation, and I think they're right to do so. No rule prohibits a law- yer from representing a family member or from using a relative as a witness. This doesn't mean that doing either is a good idea. Lawyers are supposed to exer- cise independent judgment to give their clients their best ad- vice. Their ability to do so is in jeopardy when family comes into the mix because their per- sonal concerns for their loved ones can get in the way of their duties to their client. This has now happened as a result of Kaplan's second mis- take: providing the documents to the press while unsuccess- fully attempting to block out three sentences that identified not only his sister but other members of his family. In attempting to block out this information, which only the IRB or a court can order be kept secret, Kaplan was look- ing out for the interests of his family. That, in turn, begs the question of whether he is act- ing in the best interests of his client or his relatives. Because of his actions, Ka- plan has become part of the story and part of his client's le- gal problems. Under domestic and interna- tional pressure, the federal gov- ernment has announced its in- tention to appeal the decision. Surely, Kaplan's actions and the testimony of his sister will come under scrutiny in that appeal. Kaplan has now become part of his client's case rather than an advocate for it. The best thing he can do now for his client is to step aside and help him find another lawyer. LT Adam Dodek is an associate professor at the University of Ottawa. He can be reached at adodek@uottawa.ca.

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