Law Times

Page 4 April 14, 2014 • lAw Times www.lawtimesnews.com During testimony in October 2013, Snidr expressed remorse for failing her clients and her- self and said she appreciated the impact of her actions. She also described her insight into what led her to carry out the faulty transactions, "including over- confidence in her abilities," ac- cording to the decision. In addi- tion, colleagues and friends filed good character letters that de- scribed Snidr as dependable and her offence as "out of character." "We accepted her expres- sion of remorse," the panel said. Although Trudell argued his client's remorse and character evidence made her an ideal can- didate for restorative justice, the panel disagreed and chose to disbar Snidr. "In Ms. Snidr's case, there are a number of features that are at odds with applying restorative justice principles to expand the range of penalty. ere was no psychiatric evidence provided at the hearing that could as- sist with the context of how the misconduct happened, why the licensee responded as she did when she stopped participating in the transactions or the pres- sures unique to her practice that contributed to her decision to participate," wrote Leiper. At the penalty hearing, Trudell questioned the merit of analyzing mitigating factors if it didn't have any bearing on the disposition. In response, the panel said considering mitigat- ing factors was important for lawyers as well as their friends and family. It also noted mitigat- ing factors could help a lawyer who later reapplied for a licence to practise law. Although the final decision wasn't what he would have liked to see, Trudell says he's grateful for the thorough consideration the panel gave to his novel ar- gument and the likelihood that future cases may benefit from it. "Even though you lose, if you feel like you've got a good hear- ing, that's a good judge," he says. "is is an excellent decision by this panel; it's thoughtful. I don't agree with it; I'll try again in another case, but it's a very thoughtful decision. ey took time to do it and I'm grateful for that." Trudell credits his former ar- ticling student, Ian McCuaig, for putting together the argument for restorative justice in profes- sional misconduct cases. Mc- Cuaig says there's a greater body of literature looking at the ap- proach in the United States and Australia. Small-firm lawyers and sole practitioners are overrepre- sented in the discipline process, something he says points more to the lack of support than char- acter issues among those who work on their own. "e discipline process is re- ally troublesome for small prac- titioners because it doesn't really recognize the kind of pressures that they face and the kind of factors that motivate the kind of decisions they make that are not the best decisions," says Mc- Cuaig. "e traditional model of discipline just looks at the whole thing as a question of character: Do you have it or do you not have it? But social science has identified for a long time that that's not the way human beings work." Situational factors play a much bigger role than the dis- cipline process recognizes, Mc- Cuaig adds. "And situational factors are much stronger for small practitioners because they don't have the support." In a sense, the discipline pro- cess can insulate lawyers who work at bigger firms or corpora- tions because their employers can deal with their faults inter- nally and oen before they esca- late into something disastrous, according to McCuaig. As some- one who aspires to practise on his own in the future, McCuaig says he takes an interest in how the discipline process treats those who hang their own shingles. In its decision, the panel cited an Australian National Universi- ty College of Law research paper by Kath Hall. In it, Hall noted "a disproportionate number of complaints among sole practi- tioners and questions about the need for the 'full force' of the dis- ciplinary system," Leiper said in summarizing the findings. "Hall also suggests regulators have a limited appreciation of the links between dishonesty, stress, and psychological conditions, which is informing their responses to lawyer misconduct." But Leiper also cited research that suggested serious fraud matters would be exempt from a restorative justice approach. "e consequences to the repu- tation of the profession would not align with such a regulatory response. is is analogous to the Supreme Court's assessment of the range of restorative appli- cations in the criminal law con- text where more serious offences oen require a stronger form of condemnation." LT what it takes to fill the gap and that some- times means taking on work normally re- served for mid-sized firms, according to MacKay. Mid-sized firms are "seeing the bigger firms on the other side of transactions that they never saw the bigger firms on in the past," she says. When there's a dearth of the higher-value work consultants tell them to focus on, MacKay says big firms focus on filling the gap with other files traditionally handled by mid-sized firms. Although the Peer Monitor report looks at U.S. law firms, the observations are relevant in the Canadian context as well since some of the challenges it de- scribes also apply here, says Brian Grant, managing partner at Lerners LLP's To- ronto office. But while issues like technology affect mid-sized firms differently, the overall need for more efficiency is an indiscrimi- nate issue across the legal sector, Grant notes. "I don't pretend to know everything about what happened at Heenan Blaikie, but it's a lesson for everybody," he says. "e fact that a firm like Heenan Blaikie could go under says to everybody: 'You need to be paying more attention to the way you're doing business.'" As the business of law becomes just as important as the practice of law, stalling on increasing efficiency will have serious perils, according to Grant. "Stand still and you're going to get run over," he says. According to the Peer Monitor report, technology has allowed mid-sized law firms to "punch above their weight" but it has also brought challenges that specifi- cally target them. "In recent years, we have seen ever more sophisticated search engines that have transformed electronic discovery and document management, vastly im- proved contract draing soware that has made clients more self-reliant, game theory based applications to assist parties in negotiations and in resolving disputes, and sophisticated expert systems to guide clients through decision-making process- es in complex regulatory and other situa- tions," the report states. "is is not to suggest that lawyers are going to disappear, but it is becoming in- creasingly clear that ongoing technology advances will significantly impact what lawyers are asked to do by their clients in the future. And, unfortunately, it is likely that the segment of the market to be hit first by these changes will be mid-size firms." Grant says he agrees technology is presenting both opportunities and chal- lenges for mid-sized law firms. While being able to deliver the same service to clients at a lower cost is one of the perks of technological advances, the costs are something smaller firms aren't able to ab- sorb in the short term, he notes. But when it comes to becoming more efficient, Grant and McKay say the legal profession as a whole is undergoing a transformation and that size will protect no one. e broader challenges "are not re- stricted to mid-sized firms, to be honest," says Grant. "I think the legal market is de- manding more efficiency." Becoming more efficient means making use of technology but it also means hav- ing routine work done at a lower hourly rate, he says, adding clients are now much more aware of the kinds of work a clerk or a first-year lawyer can do versus tasks requiring an experienced lawyer who charges more. Lerners has been making moves to be- come more predictable in terms of costs as well, says Grant. "ere are a number of alternative fee arrangements that we currently have and are exploring with our clients," he notes. While there are some files, such as large class actions, where cost is secondary to the survival of the case, most clients now require certainty on what their tab will look like, according to Grant. MacKay says part of the strategy all law firms, including mid-sized ones, will have to consider is whether lawyers needs to occupy every position, including ones related to client service. Some mid-sized law firms think they're too small to have positions dedicated to client service, but for MacKay, the issue is less about size than a willingness to change. LT Size no protection as legal profession transforms NEWS 'Thoughtful decision' on restorative principles Continued from page 1 Continued from page 1 Centre for International Governance Innovation Oonagh Fitzgerald, BFA, LLB, LLM, MBA, SJD, Member of the Law Society of Upper Canada. The Centre for International Governance Innovation (CIGI) is pleased to announce the appointment of Oonagh Fitzgerald as Director of the International Law Research Program. Ms. Fitzgerald has extensive experience as a senior executive in the federal government. Since 2011, she has been National Security Coordinator for the Department of Justice. She has led the provision of legal services at the Department of National Defence, Public Law Sector of Justice, Privy Council Office, and the Department of Human Resources Development Canada, and served as Special Advisor for International Law and Director of International Law at the Department of Justice. She began her career at the Law Reform Commission of Canada, the Bureau of Competition Policy and the Immigration Appeal Board. Based in Waterloo, CIGI is an independent, non-partisan think tank on international governance. The International Law Research Program, with up to 19 research fellows and 20 scholarships, is jointly funded by CIGI and Ontario's Ministry of Training, Colleges and Universities. ntitled-1 1 14-04-10 10:48 AM

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