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PAGE 10 FOCUS November 9, 2009 • Law Times Unhappy clients a frequent source of claims Continued from page 8 become one with the lawyer. Known for his expertise in as- sessment of costs and solicitors' negligence, Upenieks says that about 40 per cent of the clients he's had have been family lawyers. In most cases, the issue is some- thing as simple as a lawyer having charged too much or put in too many hours on a fi le. But they also get notices of assessment when they just don't get the results their clients were looking for. "When I fi rst get the phone call, I usually assure them that it's a cost of do- ing business, especially in family law, and that they were bound to get assessed and will probably get assessed again at least once in their career," says Upenieks. Th e comments support Law-PRO's data suggesting that between 1997 and 2007, the No. 1 cause of claims was for commu- nication-related errors. In particu- lar, they involved failing to follow the client's instructions, failing to obtain the client's consent before taking a certain step or failing to explain administrative, procedural or billing details in a matter. Th e assessment hearing Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE www.mckellar.com www.mckellar.com 1-800-265-8381 $3.55 • Vol. 20, No. 13 Covering Ontario's Legal Scene April 20, 2009 BY ROBERT TODD Law Times F dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier committee report at ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- month after the CJC issued a final re- port stating that his actions in a late- Cosgrove resigned earlier people in public office, and they were given little weight, according to the decision." Cosgrove's final criticism is the CJC's determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination. inquiry the Federal Court, he says a decision was un- ment took hold in December. likely before his mandatory retire- Former Superior Court justice Paul Cosgrove tells Law Times that his pending mandatory retirement compelled him to resign from the bench this rather than battle a call for his ouster. 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have Financial Matters with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from See Cosgrove, page 4 9 Focus On ADR/ Mediation together we have all the tools. TitlePLUS title insurance and you, TitlePLUS title insurance and you, together we have all the tools 3 Fight Over Fees 6 Inside This Issue Quote of the week grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and BY TIM NAUMETZ For Law Times OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context "Yeah, I guess, like any organi- staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. Consideration of the future of that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, sports federations in selection disputes to show they had the proper criteria set up and that it was properly applied . . . The onus is now on the organiza- tion not the athlete. It wasn't quite as clear a few years ago." "It is now incumbent on but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community say McCarthy Tétrault's Ottawa re- view may be related to a management See Ottawa, page 4 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 www.lawtimesnews.com Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca works like this: even though there are no pleadings or ex- aminations for discovery, the process is much the same as a trial with sworn testimony and cross-examination. Regardless of who initiated the action, the lawyer is always the applicant and has the onus of proving his or her accounts. Th e lawyer will always give evidence fi rst and is subject to cross-examination from the client or opposing counsel. Witnesses, including experts, staff , and other law- yers, may or may not testify. Once the lawyer has fi nished presenting, the client, who doesn't have to give evidence, can then call witnesses. "I usually advise lawyers to get counsel," says Upenieks. "Lawyers acting alone frequent- ly respond emotionally and inappropriately and hurt them- selves in the pocketbook and damage their reputation." Among other things, prepar- q Send me 1 year of Law Times for only $135.00 (Total with GST: $141.75) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 727-0017 Mail or fax this form to Law Times Mail or fax this form to Law Times 240 Edward St., Aurora, ON L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 ing the fi le is critical when going through an assessment of costs. Lawyers should also ensure that the trust ledger is complete and accurate, serve an Evidence Act notice for the dockets and accounting records, and pre- pare an assessment brief. "First impressions are of paramount importance," Upenieks says. "Counsel need to put their best foot forward when they attend at the assessment offi ce since, as the lawyer being assessed, you have to project preparedness, thoroughness, and an organiza- tion level that suggests you are worthy of the hourly rate you charge to the client." Th ere is no appealing an as- sessment offi cer's decision per se LT_1-4sub.indd 1 11/4/09 4:52:55 PM 'Lawyers acting alone fre- quently respond emotionally and inappropriately and hurt themselves in the pocketbook,' says Ed Upenieks. because an assessment counts as a reference under the Rules of Civil Procedure. Th ere is, how- ever, a 15-day period within which a party can bring a mo- tion to oppose confi rmation of the assessment offi cer's decision. After that, any appeal lies with either the Divisional Court or the Court of Appeal, depending on the amount in question. Th e standard of review for appeals, however, is quite high since the court won't intervene unless the decision of the assessment offi cer was so unreasonable as to suggest an error in principle. But according to Dan Pin- nington, director of LawPRO's practicePRO risk and practice management program, there are a few ways to be proactive about managing your client's expecta- tions and your fi le that can save you a lot of aggravation if and when the matter goes to assess- ment or you fi nd yourself served with a negligence claim. Have a retainer agreement and keep it up to date. Bill regularly so that clients don't get surprised with an enormous bill they might not be in a position to pay. Keeping detailed time dockets is also key. "You can't document every- thing, but detailed dockets or ideally notes go a long way to re- solving an issue with the forgetful client who alleges there's been no communication or miscommu- nication," says Pinnington. But despite the most valiant eff orts, there will be times when it just comes down to having a diffi cult client. In a paper enti- tled "Dealing with the Diffi cult Client," Justice Carole Curtis, writing before she joined the Ontario Court of Justice bench, identifi ed nine diff erent types of diffi cult clients. "It is not possible to satisfy all clients," she wrote in the paper. "With the diffi cult client, this may occur due to the client's un- happiness with the results. Know when to leave the fi le." Th e paper is as much a lesson in client relations as it is a lecture on how to conduct yourself when a diffi cult client is either solicit- ing you or retaining you. "It's an excellent paper," says Pinnington, who himself maintained a general law practice that included family law before joining LawPRO. "Th e fi rst time I read it, I said to myself, 'Wow, she's met my client.'" LT Childview_LT_June22_09.indd 1 www.lawtimesnews.com 6/17/09 12:08:32 PM www .lawtimesnews.com Includes a FREE digital edition! 'Shock and disappointment' Cosgrove says 'life goes on' after the bench Future uncertain for McCarthys' Ottawa office

• Cover
• Mandatory Education
• Good Science?
• Focus On Family Law