Law Times

Page 2 January 11, 2016 • Law Times www.lawtimesnews.com those ads demean the profession," Lerner says. Some examples he's seeing are in the real estate realm where fixed fees are being advertised but the client faces multiple add-on fees, says Lerner, "so when the cli - ent gets the bill, it's nowhere near what's been quoted. "And in the personal injury bar, we see a lot of ads on the televi - sion that I think are false and mis- leading to the point where they're nothing more than ambulance chasing," Lerner adds. In the early summer of 2015, Convocation agreed to a call for input on potential changes to its existing regulations on advertis - ing, giving legal professionals un- til this past October to comment. Mercer says the call for input stemmed mainly from concern by some lawyers and benchers about the proliferation of advertising in the personal injury realm in recent years. "ere were concerns ex - pressed simply about the volume of it, but there was also concern expressed about the nature of the advertising, and some of that goes to the professionalism of the con - tent," Mercer says. Another issue that came up is the substance of what is being said in ads. Some respondents say there are claims being made in advertis - ing that shouldn't be made, such as potentially misleading claims about awards. He says lawyers have also complained that some ad - vertising suggests a lawyer is par- ticularly aggressive or will take a hard-nosed, adversarial approach. He says if new policy is created, it will be a difficult balancing act be - tween providing relevant informa- tion to the public and adhering to the highest professional standards. "On one side, it's important that people have an opportunity to know who might provide them with services and having personal injury lawyers describe who they are and what they can do is a good thing, and competing for that business is probably a good thing as well," he says. "But on the other hand, if the marketing is mislead - ing or doesn't give a fair picture, then that's a problem." Mercer adds another interest- ing point raised by some legal pro- fessionals is advertising that "tends to lower the public confidence in the legal system is a problem in and of itself. "ere is concern by some that advertising that isn't professional, that isn't in an appropriate style, tends to diminish the regard the public holds in the administration of justice," he says. "ere were cer - tainly some who expressed enough exasperation with the issue that they'd be content to shut down advertising entirely, but those who were of the view there should be advertising were more interested in knowing with clarity what was permitted." He says one broader issue that "right or wrong is worthy of con - sideration" is an increase in lawyers who pay referral fees to other law- yers who provide them with cases and how those firms advertise. "ere has been concern ex- pressed that some of the referral fees are not a percentage of the ul- timate recovery but are flat rates," he says. "e concerns of those who raised that issue are that the result may be the referring lawyer isn't interested in getting the file to the lawyer who can do the best job but to the lawyer that's prepared to pay the highest fixed fee; it's worthy of examination, how the referral fee system has evolved to reflect the question: Is this a system [that] is transparent, that is aligned with client interests or not?" Mercer says because referral fees are a source of income for some, a new business model may be emerging where firms advertise not to do the casework but to refer the work on to others. "e concern then is raised whether or not it's appropriate as a matter of transparency to the public. We want to understand how much of that is going on and whether or not the public inter - est is advanced by permitting a regime where people can invest large amounts in advertising, not for the purpose of doing work but for the purpose of getting fees for referring work," he says, adding that "some might argue that's not a bad thing because people can learn about their rights and find law - yers to do the work while others worry about the transparency and whether or not the work is going to the right place." Lerner says advertising has been abused and "it's incumbent upon us to rein it back in to the way it was originally intended. "I don't expect the people who originally permitted advertising ever in their worst dreams thought it would develop the way it has and now we have to put in rules and regulations to restrict and confine it to something that we think re - flects well upon the profession," says Lerner. LT NEWS Fine line between informing public and professionalism Continued from page 1 recommendation asks us to do with- out doing what it asks us to do ver- batim," Sanderson says, adding that he expects every course will include elements of aboriginal law. It's a similar concept Lakehead University's Bora Laskin Faculty of Law in under Bay, Ont. has been already using for the past few years and, under the direction of assistant professor Karen Drake, will be con - tinually expanded upon. Also chair of the under Bay Métis Council, Drake explains that Lakehead has had aboriginal elements through - out its course material and several first-year mandatory courses, such as Indigenous Legal Traditions, since the law school was established in 2013. She says it's strictly focused on the local aboriginal and Métis community and thinks that is the best way for law schools to fulfill their new mandate. She says because aboriginal law would vary from First Nation to First Nation, it is important that each school teach the legal structure of the local indigenous community. For example, she says, many members of the local Anishinaabe nation find the source of their traditional law in their stories, teachings by elders, lan - guage, and even the land itself. "But in order to do that, you need to be in the place of the na- tion whose laws you're learning," she says. "You want to avoid pan- aboriginalism; different Anishi- naabe communities themselves can have different legal principles." She, too, says a single, manda- tory course will not address the educational needs of the legal pro- fession and would otherwise mar- ginalize the aboriginal community. "To fully do justice, you really have to incorporate this throughout all of your curriculum," Drake says. Sanderson, along with former U of T law dean and current pro - vost and vice-chancellor of Trinity College Mayo Moran, have already struck a committee they will co- chair to address and implement the call to action. Including members of the Aboriginal Law Students As - sociation, the broader law student body, administration, and faculty members will combine to deter- mine how the new educational re- quirements will be included. "If we want to take the recom- mendations seriously, it's hard on its face to figure out how we'd squeeze all of that into one class," Sanderson says, pointing out that the history material alone could span several years of courses. "And without that historical background, it's really hard to have empathy for the claims of indigenous people. Learning how indigenous people understand their relationship to land and to one an - other, their communities and their surrounding communities, and their stewardship of the land, those are more important than teaching about how does the Supreme Court of Canada conceptualize an aboriginal interest in land, but that's not what the report calls on us to teach." He says because the recommen - dation is that elementary through high school students also receive increased aboriginal education, the base knowledge of legal stu- dents will be drastically increased in about 10 years, which will make the current task that much easier. In the meantime, though, he says there is a lot of educational catch-up the profession will need to make. "We're thinking about models that would involve some background information, history, in the first-year curriculum, because that's the catch- up part, but combined with a com - mitment to teach some aspect of ab- original law in every class. [We want] to create the idea that aboriginal law is a normal part of the study of law and, in that way, generate the respect for aboriginal law," he says. Sanderson says in the first few months of 2016 his committee will be consulting with its students and collected experts including an el - ders' committee to determine just how the material will be incor- porated. He says the first wave of changes will likely be implemented by next fall, but he adds that it will be a continuing work in progress. For those already in practise, Sinclair calls on the country's law societies to ensure the same level of cultural competency and training as those coming out of law schools under Recommendation 27. LSUC executive director of policy, equity, and public affairs Grant Wedge says the regulator has already started to increase its edu - cational opportunities and recently held a meeting with the deans of all seven law schools in the province about the call to action. He says the society affirmed its commitment to support the development of a new curriculum and added that CPD opportunities will reflect the new law school standards. "What they [law schools] in - novate and as they thread through other mainstream programs, so, too, we learn ways to improve our CPD programming," Wedge says. e LSUC is developing a spe - cialist certification for those in aboriginal law, which Wedge says should go to Convocation's table for approval at some point later this year. LT Proponents say one law course not enough Continued from page 1 Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover [OLSH[LZ[UL^ZHUKILULÄ[MYVTL_WLY[JVTTLU[HY` for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issuesH`LHYJV]LYPUN6U[HYPV»ZSLNHSSHUKZJHWL • FREEKPNP[HSLKP[PVUHUK\USPTP[LKVUSPULHJJLZZ[VWHZ[PZZ\LZ • FREE Canadian Legal NewswireH^LLRS`LUL^ZSL[[LYMYVT[OL editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! ;VWSHJLHUVYKLYWSLHZLJHSS VY 6YKLYVUSPULH[!^^^JHYZ^LSSJVTWYVK\J[KL[HPSSH^[PTLZWYPU[KPNP[HS *Plus applicable taxes @lawtimes *VU[HJ[\ZMVYTVYLPUMVYTH[PVU! *HUSH^`LYSH^[PTLZ'[OVTZVUYL\[LYZJVTc c (JJLZZHMYLLWYL]PL^H[!IP[S`JVTCanLawyer-FreePreview Untitled-2 1 2015-12-08 4:14 PM

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