Law Times

Page 4 NEWS December 2, 2013 Law Times • Civility complaints by judges spike following new protocol BY YAMRI TADDESE Law Times S Navigate the legal aNd practical issues of charitable activities New PublicatioN Charitable GivinG in Canada ElEna HoffstEin, J.D., M.a., anD laura E. WEst Charitable Giving in Canada is a practical new resource for anyone involved with or interested in philanthropic activities – a sector in which legal regulation has become increasingly sophisticated and complex. Written by practitioners of charity and not-for-profit law, this book highlights the legal, tax and administrative issues you will encounter, such as: • • • • • • • • the tax benefits of charitable giving issues with charitable receipting Considerations in testamentary charitable giving Various types and forms of charitable gifts issues pertaining to donor-restricted gifts Documentation of charitable gifts Due diligence practices for donors and charities Corporate philanthropy and strategies for involved donors fact patterns, summaries and checklists are included to make the information even more accessible. Order # 985499-65203 $98 Hardcover approx. 200 pages november 2013 978-0-7798-5499-8 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. available Risk-FRee FoR 30 Days order online: www.carswell.com call toll-Free: 1-800-387-5164 in toronto: 416-609-3800 ince the launch of its civility protocol in 2009, the Law Society of Upper Canada has seen a significant increase in complaints by judges about lawyers and paralegals, new statistics show. Since 2009, judges have made almost 100 complaints about the issue with a spike of 32 of them in 2010. In 2009, there were just 18 complaints. But so far, none of those cases has resulted in a finding of professional misconduct based on incivility. Of the 94 complaints since 2009, the law society has closed 54 of them. Sixteen complaints concluded in the licensee's exoneration with nine of them withdrawn and 12 ending with a written warning, according to a report the law society released at November's Convocation. The vast majority of complaints from judges related to licensees' "integrity issues," according to the report. But while the law society has in the past based its prosecutions on comments from judges about lawyers, not all incivility proceedings result from complaints from the judiciary. In a recent example, a law society hearing panel dismissed various allegations of professional misconduct against lawyer Victor Opara. Among other claims, the law society alleged Opara was uncivil before a Human Rights Tribunal of Ontario adjudicator and in a written communication with another lawyer. Human Rights Tribunal adjudicator Kathleen Martin had made comments about Opara's conduct during his representation of a client in A.M. v. The Michener Institute for Applied Health Sciences. The adjudicator pointed out his "chronic lateness" and "his refusal to follow directions of the tribunal, often manifested by counsel continuing to argue after a ruling was made and talking over me which I found could often only be addressed by a break to permit counsel to calm himself so that the hearing could resume." But the LSUC hearing panel, chaired by Heather Ross, disagreed that Opara's behaviour was so out of line that it warranted a finding of professional misconduct. "While the panel finds that his responses to the adjudicator in the hearing were less than courteous on some occasions, we do not find that his conduct was egregious enough to warrant a finding of professional misconduct," wrote Ross. "We make this finding taking into account the context and the conduct of the hearing." In another recent case that grabbed the profession's attention, a hearing panel accepted comments previously made by a judge about Toronto lawyer Joe Groia as part of the evidence for finding him guilty of misconduct. Groia, whose proceedings arose from his actions during his successful defence of Bre-X Minerals Ltd. geologist John Felderhof, appealed the finding. Last week, the appeal panel upheld the findings of misconduct but reduced his suspension to one month after finding errors in the earlier decision. In that case, the hearing panel considered comments the late justice Archie Campbell had made about Groia in explaining his reasons for a cost endorsement in relation to a judicial review. At one point, Campbell called Groia's conduct "appallingly unrestrained and on occasion unprofessional" but didn't make an official complaint to the law society about the matter. According to Graeme Hamilton, who represented Opara in his case, there's a lack of solid jurisprudence on the matter of incivility. "The jurisprudence regarding what constitutes incivility is still in the nascent stages of development," he says, adding that the hearing panel's decision in his client's matter helps to develop the case law around the topic. There are three reasons why the decision makes an important contribution, he says. "First, it sets the bar high for the use of decisions of other adjudicative bodies in a prosecution. Second, it suggests that discourteousness must rise to a certain degree before it will be sanctioned as professional misconduct. Third, it suggests that a searching analysis of the context in which allegedly uncivil conduct occurs should be undertaken prior to making a finding of professional misconduct." The law society established protocols for civility complaints from the judiciary in 2009. Most of the complaints were against civil litigation counsel and lawyers who do criminal or quasi-criminal work. In his client's case, Hamilton says the law society's allegations rested largely on the comments made by adjudicative bodies about Opara. "The hearing panel found that before significant weight can be attributed to such decisions in a prosecution for professional misconduct, it must be satisfied that the lawyer had a meaningful opportunity to defend himself in the other forum," he says. "Merely being present as counsel in a proceeding that takes a turn such that one's own conduct comes under scrutiny is not enough." However, critics have noted lawyers lack standing to defend themselves against comments made about them while acting for a client. In Opara's case, the hearing panel's decision was "entirely appropriate and consistent with the Supreme Court's decision in British Columbia (Attorney General) v. Malik . . . given the serious ramifications of a finding of professional misconduct on one's career," says Hamilton. "In a hotly contested proceeding where lawyers are called upon to respond in the moment, they need not fear that their conduct will subsequently be judged to a standard of perfection. There is an allowance for missteps," he adds. The context of the Opara case was also important, according to Hamilton. The hearing panel conducted "a very careful and detailed analysis" into the circumstances surrounding the civility allegations, he says. After assessing Opara's level of experience, practice setup, and the actions of other participants, some aspects of the case were explainable, Hamilton adds. LT www.lawtimesnews.com

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