Law Times

Law Times • June 3, 2013 Page 3 NEWS Defence counsel not alter egos of clients: judge BY YAMRI TADDESE Law Times D efence lawyers aren't the alter egos of their clients, a Superior Court judge said in a recent ruling denouncing what he called a misunderstanding of a client-solicitor relationship. In the matter of Ronald Faulkner, a former lawyer charged in a 17-count indictment with criminal harassment, breach of recognizance, and attempt to obstruct justice, Justice Michael Code said Faulkner's insistence on making all of the calls when it came to his representation was part of the reason behind a more than four-year delay in his trial. Before pleading guilty to several of the indictments, Faulkner argued the lag was "a systematic delay" and asked for a stay of proceedings. But in a decision dated May 23, Code attributed the delay to Faulkner's own actions and a legitimate need to prepare for the voluminous case. "In spite of Faulkner's subsequent guilty pleas, I will try to make these reasons as thorough as possible," said Code in a ruling aimed at vindicating the justice system. "Faulkner has bitterly criticized the criminal justice system in Ontario and I hope to demonstrate that his criticism, in this particular case, has no merit." Faulkner discharged several of his lawyers before the court appointed counsel to act on his behalf, Code noted in R. v. Faulkner. What's more, he required the appointed counsel to run all questions for cross-examination by him before posing them in court. In November 2009 on the fifth day of the preliminary inquiry, Faulkner's court-appointed counsel said she wasn't ready to proceed as Faulkner had read only one of the 130 pages in a document she gave him, according to Code. "I won't be able to proceed because he has to read these questions and I need to have instructions, because he hasn't read them," the ruling quotes counsel as saying. "He has only read one page . . . I want to put it on the record that because Mr. Faulkner has not read my questions . . . that I prepared for him on his behalf, I'm not prepared to properly represent him . . . So, I don't think it would be . . . in the fairness of justice . . . to continue the preliminary hearing if he hasn't read these questions." The lawyer erred in thinking she had to get a green light from Faulkner before making every move, the judge said. "In light of the above authorities, it is my view that Faulkner fundamentally misconceived the nature of the solicitor and client relationship. Appointed counsel should never have acceded to his misconceived view by agreeing to let him review and control her cross-examination. "It was her duty to decide what questions to ask, and how to ask them, after meeting with the client, interviewing the client, preparing the case, and discussing the theory of the defence." Often, the most difficult client is another lawyer, says defence counsel Jeff Hershberg. "When it comes to a client instructing a lawyer, it's a difficult line that a lawyer faces. The typical client hires a lawyer because they don't necessarily know the law to a great degree and need to rely on [the lawyer's] skills and education and history in properly defending them." When he finishes cross-examining a witness, Hershberg says he asks his client if there's anything else he should LegalAidOnt_LT_May27_13.indd 1 seems strange, he adds. "If a client address. "They'll tell me something, but tried to do that to me, I would probI'll decide whether it's important or not. I ably seek to remove myself." don't normally let the client dictate what When it comes to the idea behind s. I'll ask." 11b of the Charter of Rights and FreeToronto criminal lawyer Dandoms that deals with unreasonable iel Brown says there are only a limdelay, Code got it right, says Brown. ited number of circumstances when "The delay . . . has to be at the fault of the a criminal lawyer must act exactly in Crown where the system is unable to acaccordance with a client's wishes. Two commodate a case ready to go to trial," he of those instances, he notes, relate to says. "What Justice Code said here was whether or not clients want to testify that this was a case where the delay was on their own behalf as well as decisions caused primarily by the actions of the acabout the kind of trial they'll have. cused, his decision to do certain things "But what questions are asked, how such as to discharge his counsel." they are asked, the approach to the case Questions around how to direct the case Besides his findings on the solicitoris something that the defence counsel and what questions to ask are something knows best. What this case says and 'defence counsel knows best,' says Daniel client relationship, Code took Legal Aid Ontario to task for its involvement in recognizes really is that [Faulkner] had Brown. appointing counsel under s. 486.3 of the two options: Either he could get on the same page with his defence lawyer or he could discharge Criminal Code who didn't understand their duties. "Legal his defence lawyer and find someone else willing to use Aid assisted in these appointments. A number of the difficulties in this case arose because appointed counsel allowed his approach or represent himself. "The whole idea that he'd tell the defence lawyer what Faulkner to oversee, vet, and dictate their cross-examinato do, what to say, what to ask, and everything had to be tions of the complainant. In my view, greater care needs expressly approved by him is something very contrary to to be taken in the appointment of s. 486.3 counsel and, in particular, legal aid should only allow responsible and expethe solicitor-client relationship." When a lawyer puts together a 130-page cross-ex- rienced lawyers to be paid from public funds, when taking amination, "that's a lot of work," says Hershberg. And on this role," wrote Code, noting that the current counsel apLT taking an entire morning to read one page of a report pointed as amicus curiae had done his job properly. Lawyer disbarred for fraud against clients BY YAMRI TADDESE Law Times S t. Catharines, Ont., lawyer Graham Wilson lost his licence to practise law last week after he pleaded guilty to more than a dozen incidents of real estate fraud. The Law Society of Upper Canada hearing panel released its decision in an endorsement last Monday after Wilson entered a guilty plea from jail where he's serving a three-year sentence. Last year, the court found him guilty of criminal charges in relation to the same incidents that are the subject of the law society application. An agreed statement of facts signed by Wilson on March 25 says the lawyer admits responsibility for using 15 clients' trust funds for purposes other than their legal matter between October 2007 and August 2011. The 50-year-old lawyer, who's currently serving time at the Beaver Creek Institution, must also pay restitution to his victims totalling almost $644,000. www.lawtimesnews.com The hearing panel's endorsement also said the law society would receive $36,400 in costs. The agreed statement of facts noted Wilson "misappropriated and/or misapplied" approximately $91,500 from three of the clients. "There is no money left in the lawyer's trust account," it states. "Many clients for whom he was supposed to be holding trust funds have never received their money. Other clients received trust funds months after they were supposed to, and in circumstances where the lawyer's trust account balance dipped to zero between the date their money was deposited and the date they received their money. In those instances, the clients received misapplied trust funds that belonged to other clients." Wilson's bookkeeper had been inputting all postings on the office's accounting program but she left out the electronic transfers from the trust account to the general account — ones the lawyer "personally transferred" — because she didn't have sufficient information on the transactions, the agreed statement of facts noted. "Despite her repeated requests for detailed explanation of the electronic transfers from trust to general to allow her to update the PC Law accounting system, the lawyer gave her none." Because Wilson failed to maintain his books and records since March 2007, it's impossible to tell which clients' money he misappropriated or misapplied, the statement notes. The single largest misappropriated amount cited in the document is $45,000, a balance Wilson should have had after paying out a first mortgage from the sales proceeds for two properties amounting to about $726,542 in June 2010. He transferred more than half of the client's money from the trust account to his general account. On the same day, he applied about $10,000 of the remaining balance to another client. Wilson pleaded guilty to the criminal charges as well. The law society suspended him from practising after an investigation found shortages in his trust account. LT 13-05-21 9:30 AM

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