Law Times

January 30, 2012

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PRIVACY RULING Lawyers divided on impact of P4 Follow on ARTICLING SOLUTION Columnist wants access to justice to play a role P7 FOCUS ON Intellectual Property/Trademark Law P9 www.twitter.com/lawtimes $4.00 • Vol. 23, No. 4 Untitled-3 1 COVERING ONTARIO'S LEGAL SCENE • WWW.LAWTIMESNEWS.COM L AW TIMES 5/5/10 3:55:30 PM ntitled-3 1 Ruling tackles racism in legal profession Lawyer blames troubles on disadvantages in articling experience BY KENDYL SEBESTA Law Times according to lawyers familiar with the ruling. Although a law society appeal panel found Toronto A real estate lawyer Selwyn McSween guilty of professional misconduct for "completely abdicating his professional responsibility" to an allegedly unscrupulous law clerk, dissenting appeal panellists Clayton Ruby and Con- stance Backhouse acknowledged the 66-year-old man from Trinidad faced "systemic disadvantages" that even- tually led him to hire the clerk and ultimately to "an in- creased risk of disbarment." "We cannot close our eyes to the disproportionate number of black lawyers whom we fi nd before us faced with very grave professional misconduct allegations," Ruby wrote in the dissenting opinion for Law Society of Upper Canada v. Selwyn Milan McSween. "Th e legal pro- fession has made no concerted eff ort to rid itself of the racism inherent in the practice. Th e eff ects of racial in- equality are real, not imagined, and we do the public no favour by refusing to acknowledge them." In 2010, McSween, a budding real estate lawyer and former investigator with the Ontario Human Rights Commission, had his licence to practise law revoked aſt er the law society found he knowingly assisted in 10 fraudulent mortgage transactions allegedly initiated by law clerk Maureen French. McSween, according to the ruling this month, had 'The law society has never acknowledged the racism we face in trying to find articling posi- tions or other employment,' says Osborne Barnwell, who represented Selwyn McSween. Photo: Laura Pedersen new decision by the Law Society of Upper Canada that considered a black lawyer's disadvantage in his articling experiences could hold the key to a frank discussion on systemic discrimination in the profession, hired French aſt er a diffi cult start in the profession that included more than 50 failed attempts to secure arti- cling positions. But shortly aſt er hiring French in 2004, the clerk allegedly began a series of fraudulent mortgage transactions over the course of several months. McSween argued he knew nothing about the transactions. "I'm not looking for fraud," the Jan. 13 appeal ruling quoted McSween as saying in November 2009. "I'm not looking for tricks or anything. I'm not looking to make money. I just wanted to get started in the profession, so I didn't even know anybody who knew about tricks of real estate or professionals in real estate, so these people told me, they said look, I'm going to bring people to do the transactions. Ms. French told me I will teach you every- thing I know. Th at's how I really got involved with them." McSween added: "And as much as I regret my own responsibility in this, I regret some of the circumstances didn't really favour me in terms of getting help from oth- ers. I went to other lawyers, senior lawyers. I asked them for help. I wasn't able to get help." McSween alleged French, whom he had employed to teach him about real estate law between 2004 and 2005 when the fraudulent activity took place, had duped him. In his view, his race prevented him from securing mean- ingful articling positions that would have given him the experience necessary to run a successful real estate prac- tice, ultimately leading him to employ French in order to learn about the profession. Th e appeal panel ruled that because McSween had failed to guard himself against French, he must sur- render his licence. Aſt er the original hearing panel dis- barred him, McSween sought permission to resign. Th e appeal panel issued the more lenient penalty but See LSUC, page 5 Billions of dollars invested, not a penny lost. January 30, 2012 5/4/10 2:49:21 PM BY KENDYL SEBESTA Law Times A 'None of us knew that our actions would be subject to an automatic dismissal at the first of the month,' says Andrew Murray. FEEDS LEGAL LegalFeeds_Cl_Jan_11.indd 1 t least one Ontario court location has decided not to implement Rule 48 of the Rules of Civil Pro- cedure this month aſt er concerns about bureaucratic red tape and confusion over its wording cast a chill over the change that threat- ened to cause dismissals of a wave of civil actions. Rule 48 fi rst surfaced in Octo- ber 2009 aſt er a series of amend- ments to the Rules that allowed for quicker dismissals of dormant actions due to delay. Lawyers be- came worried late last year follow- ing warnings that several actions faced dismissal on Jan. 1, 2012, as a result of the change. Th e previous Rule 76 address- ing cost and delay issues focused directly on pretrial procedures in cases involving fairly small mon- etary amounts. But under the new rule, unless a court orders other- wise, the registrar can now dismiss actions that don't make their way onto a trial list or aren't terminat- ed within two years aſt er the fi rst defence is fi led. At least one prominent lawyer is worried about the changes. Ac- cording to Andrew Murray of Le- rners LLP's London, Ont., offi ce, the rule has caught many lawyers by surprise and its wording isn't clear when it comes to the steps they must take to ensure the court doesn't dismiss their actions. "I think you will see the bulk ef- fect of this rule in personal injury actions," says Murray. "None of us knew that our actions would be subject to an automatic dismissal at the fi rst of the month." Murray adds he wrote to the manager of London's court opera- tions with a copy sent to the ad- ministrative justice outlining six fi les he felt could be vulnerable to an automatic dismissal under the new rule. "Administrative Justice Helen Rady later spoke with me and confi rmed there were others who shared concerns about the impli- cations of the rule," says Murray. "No one wanted to have harsh or unintended consequences because of the rule, so it was agreed that a set of recommendations would be developed. We're currently in the See Court, page 5 A daily blog of visit www.lawtimesnews.com 1/6/11 11:44:49 AM Canadian Legal News canadianlaw yermag.com/ legalfeeds Court gives civil lawyers reprieve from dismissal threat Jones PM #40762529

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