Law Times

PAGE 4 NEWS November 23, 2009 • Law Times 'Misconduct is a matter for law societies' Continued from page 1 "Is there really going to be any oversight? What's the basis for even referring it to the law society?" The CBA says its code of conduct should dictate when a lawyer can withdraw from a case and that oversight of the process should fall to the legal pro- fession, not the courts. "Misconduct is a matter for law societies," Del- Bigio says. "While courts might have a limited jurisdiction to prohibit a lawyer from withdrawal from a case, it should be rarely exercised," he adds. That authority was exercised earlier this month in Kitchener, however, when a lawyer's attempt to get off the record was quashed by a judge. In that case, counsel applied for a withdrawal af- ter his client could no longer afford to pay privately, according to the Record newspaper. A supporter of the legal aid boycott of murder and guns-and-gangs cases led by the Criminal Lawyers' Association, the lawyer was unwilling to remain on the case at legal aid rates. Still, Mark Ertel, president of the Defence Coun- sel Association of Ottawa, says the ruling won't af- fect the boycott itself. As in the Bryant matter, Ertel says the province's criminal lawyers will continue to abide by the norms of the profession and won't defy a judge's orders. "We're not going to do things that are contemptu- ous of courts," Ertel says. According to the CBA's code of conduct, lawyers may optionally withdraw services when a client fails to pay le- gal fees or when a serious loss of confidence has occurred in the lawyer-client relationship, such as the refusal to act on the lawyer's advice on a significant point. But DelBigio says courts would still have some au- thority to force counsel to remain. If a lawyer applies for withdrawal to take a trip to Ha- waii, for example, the court would not touch on matters protected by privilege in questioning the move, he says. "In that instance, the court might have the power to compel a lawyer to continue." However, there are other circumstances of greater import in which a judge must be allowed to inter- vene, Reimer says. The proceedings involving Cunningham's client and a very young complainant illustrate that need, he ar- gues. In such instances, "the interest of justice requires that this person has counsel and this matter goes ahead now." Reimer doesn't dispute that there are ethical situa- tions requiring a lawyer to justifiably seek a withdrawal. But he adds that withdrawals for non-payment of legal fees are a separate matter. "The fees situation is different. It's really about se- curity of payment. And there are options in those cir- cumstances." Reimer also addresses the argument that non- payment can raise an ethical issue since an unpaid lawyer may feel inordinately compelled to see a swift end to a trial. "That kind of suggestion, frankly, does a disservice to the bar." The suggestion that "honourable counsel" wouldn't carry out their obligations to their clients is invalid, he says. LT Court to hear why firm shouldn't pay costs Continued from page 1 Miksche was 78 when she passed away in a long-term care facility in Scarborough. Her hus- band had died many years prior, and her only living sibling was her sister, who was then 87 and living in Germany. Miksche had previously grant- ed powers of attorney to two friends who were also included as beneficiaries in her will. Then in 2005, Miksche's three nephews travelled from Germany to visit their aunt in the care facil- ity, accompanied by a member of Polten & Hodder. At that time, Miksche also granted powers of attorney to one of her nephews as well as her sister and signed a retainer for Polten & Hodder. The two groups — Miksche's two friends on the one hand and her relatives on the other — then filed competing applications for guardianship. Before a decision could be rendered, Miksche died, prompting the parties to submit claims for costs. "The Polten and Hodder firm sought the staggering amount of $1,038,297 . . . against Johan- na's estate," Brown wrote. Not only did the amount in- clude a success premium but it also exceeded the value of the estate, according to the judgment. In a separate 2007 ruling on the same matter, Superior Court Justice Nancy Spies called the arguments raised by the law firm "preposterous" and "alarm- ing" and said the legal approach advocated by the firm exploited the elderly woman. The firm had also alleged on behalf of the nephews that Mik- sche's two friends had held her as a "prisoner" in the care facility. "I do not understand how Mr. Polten even has the audac- ity to make this submission," Spies wrote, adding that the submission demonstrated a "complete detachment from reality and lack of judgment." The judge awarded the neph- ews costs of $35,500 but ordered them to first cover $28,000 in le- gal fees to Miksche's two friends. Polten & Hodder appealed the ruling on behalf of Lill and the nephews but a few days later made an offer to settle by proposing to drop the matter in return for an agreement on how to distribute the estate to its beneficiaries. The offer, however, "radically changed the flow of estate funds to Ursula Lill," Brown wrote, noting that all of the residual as- sets of the estate would be pay- able to the law firm in trust un- der the new arrangement. "And it was quite clear from When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com the written and oral submissions made by Mr. Polten what would happen to those funds once in his trust account — there they would stay until he was able to extract from Lill payment of his 'scandal- ous' costs claim." Although all parties signed the agreement in January 2007, questions were later raised over whether Polten was authorized to make an offer on behalf of Lill. A dispute then emerged over whether the money should be transferred to the law firm trust account as agreed. Polten provided for the court an authorization in which one of the nephews asserted to be the German beneficiary's attorney and requesting that funds due to Lill be transferred to Polten & Hodder in trust. However, the estate trustee lat- er received a request directly from Lill indicating she wanted the money sent to her in Germany. Polten also argued that the of- fer to settle was within the scope of his initial retainer with Lill. The judge disagreed, ruling the retain- er ended in June 2005, more than a year before the offer was signed. After that date, there was no proof provided to the judge of any direct communication between Polten & Hodder and Lill, the judgment said. There also was no evidence of- fered that the firm informed Lill of the 2007 ruling or that it con- sulted her on the offer made on her behalf, Brown added. "By making the offer without authority from Ms. Lill, the Pol- ten & Hodder law firm crassly put their financial interests ahead of the interests of a former client and attempted to perpetrate a naked cash grab." And even if Polten was still on retainer, he would have had a professional duty to obtain the consent of his client before taking such a material step, he said. The judge went on to criticize the lawyer for asserting that Lill owed him a sum that now ex- ceeded $1.14 million, noting that Polten had taken the position in the previous proceeding that the woman had paid what she owed for his services. "Such a misrepresentation is a breach of his duty to this court to act with candour and honesty and constitutes most serious miscon- duct on the part of the advocate," Brown wrote. Brown deemed the offer to settle to be non-binding and de- clared that Lill is entitled to receive the money her sister left her. The court will hear submis- sions next month on costs, and Brown noted that Polten & Hodder will be required to show cause as to why it shouldn't be forced to pay the legal fees of the other parties. LT Ridout_LT_Feb9-16_09.indd 1 www.lawtimesnews.com 2/5/09 10:52:55 AM

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