Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2011 Thomson Reuters Canada Ltd. 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 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. January 10, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • 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 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter The fine balance in addressing incivility T here's little denying that tell- ing a fellow lawyer where he can "shove it" is uncivil. But as Ernest Guiste, the lawyer who made that statement, says, whether those words constitute misconduct worthy of discipline is another question. As Michael McKiernan tells us on page 1 this week, the Law Society of Upper Canada took on a trio of lawyers over alleged incivility during disciplin- ary matters last month. They come as the LSUC took a number of actions last year aimed at addressing the issue, including former treasurer Derry Mil- lar's provincewide forums and new protocols for judges to complain about lawyers' behaviour before them. The idea, as Millar has repeatedly said, is to provide an escalating scale of measures to address incivility, starting with things like mentoring. Guiste's case dates to well before last year's changes but it nevertheless serves as a good example of the fine balance in- volved in dealing with incivility. Among his alleged misdeeds is an e-mail he wrote to a fellow counsel hinting that the opposing client was a cash cow. In another instance, he told a lawyer he was "speaking nonsense." Certainly, he was behaving aggres- sively, and some might argue his ac- tions were unwise. But on their face, they don't appear particularly egre- gious, especially considering the often heated atmosphere of litigation and a lawyer's duty to defend clients to the fullest. At the same time, it's not un- fathomable to view corporate clients as cash cows, as was the case in the matter referred to above, when they're acting against individuals. Regardless of the merits of a case, companies gen- erally do have more resources to liti- gate than the Average Joe. The other side of the story, of course, is that judges have grown in- creasingly tired of lawyers' bad behav- iour in court. In some cases, counsel tie up court time with frivolous motions, tactics that have no merit, and aggres- sive actions towards the other side that in many cases only hurt their credibil- ity with the bench. So the LSUC was right to make those concerns a priority worth addressing last year. But the problem is finding the right balance. For the most part, it did so when it made remedial actions like mentoring the first response to incivil- ity. In Guiste's case, however, he says he didn't have that option, likely be- cause his matter arose out of incidents dating to before the new protocols. We have yet to see what the law so- ciety will do with his case. The disci- plinary panel may not find him guilty of misconduct or may give him a light punishment. But before that happens, perhaps he should have the benefit of the new protocols that make formal discipline a last resort. In that way, the LSUC would be acting more in line with its current thinking and policies. — Glenn Kauth high cost of legal services being an obstacle to access to justice. "What quality of justice can LSUC's record should prompt debate on self-regulation L ate last year, B.C. Court of Appeal Chief Justice Lance Finch spoke of the a litigant receive when he has no lawyer to represent him?" he asked, noting he believes it's "morally wrong that some are able to enforce or defend their civil rights while others, based solely on their inability to pay, are denied access to justice." Finch also referred to the high cost of legal services as "the elephant in the room" that "no one wants to talk about." To his credit, Finch wants to do something about the high cost of legal services. Instead of debating the issue, he wants to address it. In seeking to do so, Finch fo- cuses on economic theory, name- ly the law of supply and demand. Lawyers have a monopoly on the provision of most legal services and, "regardless of the purpose identified for maintaining a mo- nopoly, the effect of the monop- oly itself can only be to restrict supply and increase cost." His solution is to increase the sup- ply of practitioners by enrolling more students in law schools, reducing the articling period, and qualifying more lawyers to practise. I suppose they might present partial solutions, al- though there's no guarantee the additional lawyers wouldn't practise in the more lucrative areas of law or that rates would decrease appreciably. Finch's remarks may be candid in focusing more on reducing fees as opposed to cutting the costs of litigation or streamlining the civil justice system, but I have some misgivings as to the reasons why he's concentrating on the mo- nopoly situation. That's because he argues we must address the monopoly in large part due to the threat it poses to self-regulation. He believes that "government regulation is to be avoided, and that the profession must strive to protect its independence and self- regulatory powers." If lawyers want to put off the debate on whether self- regulation of the legal profes- sion remains appropriate, a Social Justice By Alan Shanoff better suggestion would see the respective law societies take an active role in reducing legal fees and providing better protection for the public. Ontario's Law Society Act specifically states that in carrying out its func- tions, duties, and powers under it, the Law Society of Upper Canada "has a duty to act so as to facilitate access to justice for the people of Ontario" and has "a duty to protect the pub- lic interest." Surely, that allows the LSUC to take an active role in reducing legal fees in order to minimize a major obstacle to access to justice. The LSUC, however, doesn't appear to be doing so. Instead of providing guidance to law- yers on appropriate and fair billing practices, the Rules of Professional Conduct state merely that a "lawyer shall not www.lawtimesnews.com charge or accept any amount for a fee or disbursement un- less it is fair and reasonable and has been disclosed in a timely fashion." They list var- ious factors in commentary in an attempt to assist lawyers to determine whether a fee is fair and reasonable but pro- vide little practical guidance. In addition, when members of the public seek information on the LSUC web site about fee disputes, it brusquely tells them that "if you believe the fees charged by your lawyer were too high, contact the as- sessment office of the Ontario Superior Court of Justice." In doing so, the LSUC is ignoring its duty to protect the public interest by forcing people to commence a legal proceed- ing. It's obvious that commenc- ing an assessment proceeding and carrying it through to a successful conclusion would ideally require the assistance of a lawyer. Disgruntled clients find themselves in a position in which they must retain some- one else to contest the first law- yer's fees. This situation alone presents an excellent argument for revisiting self-regulation. Equally problematic is the LSUC message to clients who believe their lawyer has made a mistake. The LSUC web site advises them that "if you believe a lawyer or paralegal has made a mistake, you will have to deal directly with the lawyer or para- legal or sue the lawyer or parale- gal. You may wish to seek legal advice about your options." If self-regulation means cli- ents are on their own in dealing with fee disputes or negligence claims, shouldn't the matter be open for debate? Finch has opened the door to debate on the elephant in the room. By all means, let's follow through with that debate but at the same time let's discuss the equally if not more important topic of self-regulation. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e- mail address is ashanoff@gmail. com.

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