Law Times

Law Times • January 18, 2010 Disorder causes 'self-sabotage' Continued from page 1 wife, documents show. Counsel for the law society argued last year the lawyer was "ungovernable," constituted an "unacceptable risk to the public," and should be disbarred. At last week's hearing, the pan- el heard evidence of Mikitchook's lengthy disciplinary history. In 1992 and twice in 1994, the LSUC found him to have en- gaged in professional misconduct for failing to communicate with and misleading clients and failing to respond to the law society. His penalties escalated from reprimands and fi nes to a six- month suspension in 1994. In 1997, the law society ruled he had misappropriated funds in trust, a breach later shown to be due to bookkeeping inad- equacies. As a result, he received a three-month suspension. Th e LSUC then suspended him for the third time in 2001 for pro- fessional misconduct in breach- ing a Convocation order. Similar complaints against Mikitchook on behalf of clients led to further misconduct pro- ceedings in 2008. Th e lawyer then submitted psychiatric evidence to the panel indicating he had two underlying personality disorders that drove him to behaviour that undermined his own career. "Th e self-defeating personal- ity disorder causes people to be involved in self-sabotage," said a law society ruling. Two psychiatrists conducted interviews and tests with the lawyer and submitted they didn't feel he was ungovernable but rather that he lacks the normal ability to deal with complaints about his professional conduct. "He becomes paralyzed and is unable to respond in a normal way, leading to escalation," the ruling said. In response, Mikitchook re- another ceived three-month suspension, after which the law society prohibited him from practising law except under the supervision of another licensed lawyer for fi ve years. It also ordered him to engage in a course of therapy. However, Mikitchook then apparently ignored a subsequent notice of application related to the most recent misconduct pro- ceedings and missed his panel hearing. A letter from the law- yer's psychiatrist described that oversight as "another example of his pattern of automatically turn- ing a blind eye to situations he experiences as unpleasant rather than addressing them head on." Dr. Norman Doidge, a psy- chiatrist who submitted a report to the panel, indicated Miki- tchook was driven to do too much in his practice. "A core psychological confl ict for Mr. Mikitchook leads him to repeatedly overextend himself to clients, without retainers, work- ing many hours for free, and be- coming inevitably overwhelmed and fed up," Doidge wrote. "At times, he cuts off work on a fi le without having attended to the necessary communica- tion with the client to maintain a healthy lawyer-client alliance." As a result, a disciplinary panel suspended Mikitchook in- defi nitely until he could provide medical evidence that he is able to practise law. It also ordered him to engage in ongoing thera- py and practise only under a plan of supervision for fi ve years once the suspension ended. In Doidge's most recent re- port to the panel, he and two other psychiatrists agreed that Mikitchook is ready to return to the practice of law under super- vision and is highly unlikely to run into further problems with clients and the governing body. Th e report indicated the law- yer would not be inclined to "put his head in the sand" and con- cluded "it would be psychiatri- cally benefi cial for him to resume practice and contribute to the community with his legal skills." Counsel for the law society didn't oppose the motion to terminate the suspension. "He's shown insight into his diffi cul- ties," Janice Duggan said. Th e panel accepted the mo- tion. Cousins indicated his client has kept up with continuing legal education programs over the course of his suspension and has the support staff in place to return to his practice. As well, Mikitchook's previous mentor has agreed to help imple- ment a plan of supervision, he said. LT NEWS Set of 13 funding requests heads to court this week Continued from page 1 of technical issues." Th e public generally recognizes the im- portance of ensuring the rights of accused to speedy trials, he notes. But that recognition, he adds, is likely to give way to outrage if delays threaten a homi- cide prosecution. "Th ese are things that will upset folks, and rightfully so. I would be upset." Since there is no fi xed formula to determine when trial delays infringe on an accused person's constitutional rights, it's hard to say when judges will begin to stay charges related to the boycott, Morton says. Th e defence has to demonstrate prejudice, but at some point the delay is so long that a judge will infer it, he points out. "I would say that we're within months of get- ting to that point." Th e CLA, which last year rejected the govern- ment's four-year, $150-million boost to legal aid, blames the province for the fact that talks have so far been fruitless. "It can and should have happened by now," Burstein says of an agreement. Th e CLA's position that the province, not the criminal bar, is responsible for ensuring access to justice and the right to fair trials is accurate and valid, according to David Scott, co-chairman of Borden Ladner Gervais LLP and past president of the American College of Trial Lawyers. Th e province has failed to recognize the scope of this obligation, and successive gov- ernments at both levels have consistently dis- missed the issue, Scott says. "If this were health care, it would be diffi cult, but the government would solve the problem." But it's an issue the province can no longer ignore, he adds. "Th is will be disastrous before long. Th ere's no doubt." But he also notes that individual lawyers have an ethical duty, when contacted by those accused of crimes, to refl ect on their needs and rights. "Lawyers as individual professionals have an obligation to protect the interests of those who are at risk on a pro bono basis when it is required. Th at doesn't go away just because there's a legal aid boycott." According to Burstein, a number of senior criminal lawyers have accepted pro bono retainers from accused stranded by the boycott in applica- tions for higher rates of pay. So far, the courts have heard only two fund- ing applications related to the boycott. Both of them were unsuccessful, Burstein says. In the two cases, the same judge wasn't sat- isfi ed the accused had exhausted all options in fi nding defence counsel. In order for a judge to rule on what rates may be appropriate, they fi rst have to meet that test. However, in a handful of other rulings un- related to the boycott, judges appointing am- icus curiae have set rates in the $200-per-hour range, Burstein says. "Since the boycott began, no court has yet said that the legal aid rate is appropriate or valid." Meanwhile, the province has argued against the jurisdiction of judges to order higher rates for defence lawyers. In a dangerous off ender hearing in Sault Ste. Marie, Crown counsel John Zarudny argued such decisions would undermine the accountability of the government's compensation regime. "Th ere is no accountability when you have individual lawyers in individual cities and towns around the province showing up in court and saying, 'You made an order, Your Honour. . . . Th is is my rate, and you have to give me that rate.' Well, with respect, the state says no." About 30 additional funding applications are currently before Ontario courts, including a group of 13 scheduled for hearings this week in Toronto. Another 50 are in various stages of preparation, says Burstein, who is confi dent that at least some of those applications will be successful. "Once it's been satisfi ed that an order is necessary . . . judges fi nd the legal aid rate to be woefully inadequate." LT PAGE 5 Cross-Border Litigation Interjurisdictional Practice and Procedure Guidance on all aspects of cross-border litigation for inter-provincial, international and multiple jurisdictions Brian Casey, International Lawyer, Baker & McKenzie LLP Cross-Border Litigation: Interjurisdictional Practice and Procedure offers practical guidance on all aspects of cross-border litigation, covering everything from deciding where to commence litigation to enforcement of a judgment. 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Prices subject to change without notice, to applicable taxes and shipping & handling. MacDonald_Cross Border Litigation (LT 1-3x4).indd 1 www.lawtimesnews.com 1/12/10 3:18:28 PM Kenneth C. MacDonald "… This will be a very useful and timely addition to the library of any litigator involved in inter- jurisdictional disputes." ... and more

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