Law Times

LAW TIMES / JUNE 16, 2008 NEWS PAGE 3 LSUC seeks input for new disciplinary rules Law society must cut down on the number of unrepresented accused lawyers: Trudell BY ROBERT TODD Law Times A s the Law Society of Up- per Canada embarks on a consultation process for proposed new rules of practice and procedure for disciplinary hearings, a leading defence coun- sel says the law society must cut down on the number of unrepre- sented accused lawyers. "It is embarrassing, if you check the reports, how many are unrepresented still — it's wrong, and something should be done about it," says Bill Trudell, whose practice is dominated by work on LSUC discipline hearings. "It's not only a problem in the general universe of justice in courts, it's a problem in the law society," says Trudell, who also is chairman of the Canadian Coun- cil of Criminal Defence Lawyers. The law society's Convoca- tion recently passed a motion granting the tribunals committee permission to consult with the profession on a set of proposed new rules of practice and proce- dure. The consultation process will begin with input from law- yers, such as Trudell, who often appear at the panel hearings, before the committee moves on to get advice from legal organiza- tions and all other members of the profession who would like to have input. The consultation period will last until Sept. 2, at which time the committee will offer a new set of rules for Convocation to consider. Trudell says he applauds some of the proposed new rules, in- cluding those that cut through much of the red tape currently restricting the disciplinary hear- ing process, create more balanced information-sharing regarding hearings on the LSUC web site, and save time and paper. But he says the proposed rules lack provisions to protect law- yers, particularly those who don't have representation at hearings. Trudell created a duty counsel system several years ago for first appearances at law society hear- ings, and says about 12 lawyers currently are on the rotation. He says the system has allowed more lawyers to get lawyers. In his reading of the proposed rules, Trudell says it seems that a "friend of the court" could be appointed, but it's unclear if that would mean that the law society can appoint an advocate to a law- yer facing discipline. The Advocates' Society cur- rently provides lawyers for ac- cused at the actual hearings, but Trudell says that volunteer offer- ing can't meet the demand. "It's not enough, it's not work- ing," says Trudell. "When you're Mark Sandler says the law soci- ety's aim is to 'modernize rules that have not been looked at comprehensively for a long time.' ciety staff looked at rules of other administrative tribunals, such as those of the Society of Ontario Adjudicators and Regulators, and the Rules of Civil Procedure, and "developed draft rules to reflect the law society's commitment to open and transparent processes," Mark Sandler, chairman of the tribunals committee. "We've engaged in a process, with the assistance of staff, in going through all of the rules in how hearings are conducted with a view to enhancing them, bringing them into the 21st cen- tury. As well, a number of the changes reflect the transparency that now exists for disciplinary tribunal hearings that wasn't al- ways the case." The draft rules include some important new measures, says Sandler. For example, a joinder rule allows the merits of two or more cases to be heard together, while a severance rule would al- low panels to split a single pro- ceeding into two or more. The set of draft rules also includes a provision to simplify the scheduling process. "There's a much heavier emphasis here on facilitating case manage- ment, because we have a num- ber of lengthier proceedings now, so the rules contemplate that case management can be It was felt that the time had come to look at a more comprehensive review of the rules of practice and procedure, rather than kind of a patchwork exercise to address specific issues as they arose in individual cases. looking at the whole process, and this seems to be a pretty compre- hensive document, you've got to start paying attention to the law- yers who are unrepresented in the discipline stream." The law society began working on the new rules in May 2005, when Convocation approved a report of the tribunals task force, which led Convocation to permit their creation. In shaping the new rules, the committee and law so- according to a May 22 report of the tribunals committee. The committee plans to cre- ate new rules for appeals once the new hearing panel rules are approved. "It was felt that the time had come to look at a more com- prehensive review of the rules of practice and procedure, rather than kind of a patchwork exercise to address specific issues as they arose in individual cases," says put in place," says Sandler, add- ing that it would be mandatory for lengthier proceedings. One new rule would allow both sides to serve a notice to ad- mit facts, says Sandler. "That's another rule that's de- signed to facilitate the narrowing of the issues, and dealing with the issues that are truly of impor- tance to the parties," he says. Sandler notes that the rules are currently only in the draft stage, and that the law society welcomes feedback from the profession before finalizing them. "The aim is to modernize rules that have not been looked at comprehensively for a long time, to enhance transparency in the process, to reflect changes that are already taking place in prac- tice, and to make the rules more consistent with rules of practice and procedure that exist in simi- lar tribunals," says Sandler. On top of a better system for unrepresented lawyers at disci- pline hearings, Trudell says it's also time for the law society to create an ombudsman position for members in need of help. He says during its consulta- tions on the new hearing rules, LSUC should consider the cre- ation of such an office, which could help speed up the disci- plinary process. "We've got to start spending some time on looking after the lawyers," says Trudell. "We need somebody at the law society who is only for the members," he says. "So a mem- ber can call and say, 'Oops,' or a member can call and say, 'I need help.'" Overall, the consultation pro- cess should focus on the mem- bers' needs, says Trudell. "We agree to self-regulate, but when we're looking at an overhaul of the process, there's a basic principle we should be looking at: are the individual members being served in a fair way, or are we more concerned about expediency here? I think that's a topic that needs to be discussed, recognizing that a lot of these procedural changes are really important." LT MUSKOKA FRACTIONAL Your best choice for reaching Ontario's legal market It's what's inside that counts! • News • Commentary • Analysis • Focus Sections • Caselaw • Humour We have it all! Subscribe today on-line at www.lawtimesnews.com Untitled-2 1www.lawtimesnews.com Subscriptions.indd 1 9/11/08 3:29:27 PM COTTAGE OWNERSHIP on Lake of Bays ACTUAL FURNISHINGS Ontario's Fastest Selling Fractional Cottages $29,900 - $87,900* PHASE 2 NOW SELLING Exceptional Prices Waterfront Location Authentic Detached Cottages Having looked at other developments we noticed immediately the quality of the model, the existing facilities and the value the price represented. Within an hour and a half my family and I had made a unanimous decision to purchase a share at Blue Water Acres! John Vingoe, Buyer 1.866.396.BLUE / bluewater-law.com *5-week intervals in two and three bedroom cottages. VISIT OUR MODEL COTTAGE. OPEN DAILY. 6/2/08 9:20:20 AM

• Cover