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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 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 Inc. 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. Editorial Obiter No time like the present H ere's one definition of the word "time": the particular point in time when an event is scheduled to take place. Here's another: an indefinite, fre- quently prolonged period or duration in the future. And here are two uses of the word in recent quotes with respect to the sorry state of legal aid funding in this province: "If anything about achieving the goal we all share was particularly easy, then it prob- ably would have been done a long time ago." — Attorney General Chris Bentley. "I think there's a pretty firm belief throughout the bar that the time has come to bring this issue out." — Criminal Lawyers' Association president Frank Addario. By this writing the legal aid boycott is in its second week with a whopping 340 lawyers signed on. In short, they are fed up with what no less than three reports have declared is an underfund- ed program. So, defence lawyers with a minimum of five years of experience are not taking on legal aid work on be- half of those charged with homicide or guns-and-gangs offences. These lawyers have had their salaries boosted by a mere 15 per cent in the last 20 years, compared to a 57 per cent jump for Crown attorneys and an 83 per cent hike for judges. The maximum a lawyer will be paid to defend someone on legal aid is $98 an hour, even in the instance of the complex cases. As Addario told Law Times last week, that measly figure "would cause most lawyers with over- head in a downtown office and with staff to giggle." That's putting it mildly. The lawyers have been voicing their concerns for ages, but this time around they are well organized and seemingly getting their message across, despite an obvious public relations hurdle erected by a general public that misperceives $98 an hour as a good buck and the lawyers a bunch of greedy whiners. Well, how many of them work many hours essentially pro bono at their jobs? Addario told Law Times reporter Rob- ert Todd that into the second phase of the boycott he thinks the movement has suc- ceeded in communicating to other law- yers and the public that the "program is broken and needs fixing," and that it does not provide access to justice as intended. Proof: word the CLA has scored a face-to-face with Bentley. Good. The AG has made it clear many times that he understands the issue — he did after all toil for 25 years on legal aid cases before moving to politics — and shares "the passion of those who are expressing a frustration." And he has said, "We really do need to find a way to renew legal aid. That's what I've been working very hard on . . ." He added the recession has delayed progress. That may be the case, but it is certainly time for Bentley — whom Addario sug- gested is sympathetic to the struggle — to meet with the lawyers who are boiling over. Listen to Peter Zaduk, for example: "The government has been completely ir- responsible in dealing with the criminal bar. There is no way on earth they can jus- tify basically freezing our wage at what it was 20 years ago." He said this after secur- ing an acquittal in a murder trial. A meeting is a good first step; after all, this is clearly a reasonable bunch, proven by the fact they've cooled their jets for two decades before coming to this point. But in addition, something concrete has to emerge from this tête-à-tête. The time . . . is now. — Gretchen Drummie BY JAMES MORTON For Law Times I magine two potential civil litigation clients. Both present you with problems well within your expertise and both satisfy your financial re- tainer requirements. Neither ask you to do anything un- ethical or underhanded. The first is a quiet, respect- ful person who appreciates the limits of the law and wants you to pursue a clearly valid claim. The other is an unpleas- ant, extreme individual with a warped view of justice and a claim that is marginal. You explain the law to both clients together with the likely results of litigation. Both ask you to go ahead and issue a claim. What do you do? The new lawyer's oath to be taken by lawyers in On- tario says: "I shall neglect no one's interest and shall faith- fully serve and diligently rep- resent the best interests of my The duty to represent even the unpleasant client Speaker's client." The new oath is, in this regard, the same as the barrister's oath and mandates that a lawyer accept any non- frivolous case. On the surface you are ethically obliged to assist the pleasant and the unpleasant client. As Lord Edward Pearce said in Rondel v. Worsley: "It is easier, pleasanter and more advantageous profes- sionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreason- able, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal sys- tem came to provide no repu- table defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreason- able, the disreputable and those who have apparently hopeless cases turn out after a full hear- ing to be in the right." Everyone is entitled to jus- tice. It is easy to see that when Corner representing, say, an accused charged with a brutal crime. Memories of To Kill a Mock- ingbird and Atticus Finch spring to mind. It is less ob- vious when dealing with a civil client who is claiming something that seems unjust or excess. But civil clients are entitled to access to the courts as much as any other clients. Especially in a time when the self-represented client is commonplace, the need for a lawyer to represent that un- pleasant civil litigant is even more important. The unpleas- ant litigant will go ahead and www.lawtimesnews.com litigate whether represented or not — at least when a lawyer is involved there is some hope the case will be decided on its merits. This last point is of considerable importance — the unrepresented cli- ent will often lose because of procedural errors and for cases to be decided on process rather than merit is a scandal to justice. Fairly put and honestly argued, even the unpleasant client's case may have merits the lawyer does not see. The lawyer's job is not to judge but to advocate, and to advocate on behalf of all who properly seek the lawyer's ser- vice. It is the client's case and not the lawyer's case. There are not two judges in Canadian courts — our judges are well able to decide the merits of cases and that is their role. If all lawyers subscribed to the ethic that they would only represent "causes that contrib- ute to the common good" (as June 15, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • 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 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. some have said is the proper ethical position) our system would collapse. A judge is to judge; that is not the lawyer's job. All that said, the unpleasant client will bring you no glory. You will probably lose and you will probably be blamed for los- ing. Some will think you lack "common sense" for bringing a problematic claim. The money from fees will not redeem the heartache and sorrow. You will spend hours on the telephone explaining why the process is as it is. Your task will be thankless. But it is your duty. Being a lawyer comes with privileges but also responsibilities; the duty to take the unpleasant cli- ent is one of those duties. LT James Morton is a litigation law- yer with Steinberg Morton Hope & Israel LLP. He teaches evidence at Osgoode Hall Law School and blogs at www.jmortonmusings. blogspot.com. He can be reached at jmorton@smhilaw.com.