Law Times

PAGE 6 COMMENT Law Times Group Publisher ......... Karen Lorimer Associate Publisher ........ . Gail J. Cohen Editor .............. .Gretchen Drummie Associate Editors .......... .Helen Burnett Staff Writer ............ Robert Todd Copy Editor .............. .Matt LaForge CaseLaw Editor ......... .Jennifer Wright Art Director ............ Alicia Adamson Production Co-ordinator ..... Mary Hatch Electronic Production Specialist ................ Derek Welford Advertising Sales ........ Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ............. Sandy Shutt No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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. ©Law Times Inc. 2008 All rights reserved. Editorial Obiter A s Ali McGraw once famously drawled, "Love is never having to say you're sorry." Well, if a Liberal backbencher has his way, soon in Ontario an apology may mean never having to say you're liable. Apologies are all the rage these days — in fact U.S. politicians are mea culpa-ing ad nauseam for various indis- cretions. But apparently it's not so de rigueur here, or at least not according to Liberal MPP David Orazietti who has introduced the Apology Act in the legislature to make it easier for us all to express regret . . . with no regrets. In a Canadian Press story Orazietti said the law must be changed to allow everyone to say they're sorry for errors without fear it will be used against them in civil actions. He said it's particular- ly important for those in health care, where he claims professionals are gener- ally advised not to apologize for medical mistakes because those two little words APRIL 21, 2008 / 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 address- es. 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 Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • 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@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, 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. Who's sorry now? could bite them later in court. Three provinces and 35 U.S. states already have similar laws and Orazietti says it "has substantially reduced lawsuits and settlements and claims in the court system because people were able to have a discussion about what's taken place and bring closure to a particular issue." We're sorry it's come to this. But, we were more sorry to read a couple of other news stories last week. The first was about billionaire author J.K. Rowling testifying during her law- suit against publisher RDR Books for planned publication of a Harry Potter Lexicon, based on a web site by the au- thor's "most devoted fan" Steven Vander Ark, 50. At issue is whether it's copyright infringement or fair use. Rowling conjured up more drama during her stint on the stand than in one of her books. Whilst battling tears, she made ludicrous statements like, "I don't want to cry because I'm British," before she did. And, the trial has "decimated my creative work over the last month," translation, she has writer's block. And, when asked how she feels about Potter, the one-time struggling single mom sniffed, "It's like asking how do you feel about your child." Meanwhile, during his turn in the box Vander Ark burst into tears, and choked out, "It's been, it's been. It's been difficult because there has been a lot of criticism, obviously, and that was never the inten- tion. This has been an important part of my life for the last nine years or so." Sorry to hear that. Forget that at one point in the past Rowling herself praised Vander Ark's web site for excellence. (Something she now "regrets bitterly.") And forget that it emerged she's penning her own lexicon — but she'll give that money to charity. Let's hope the judge cuts through the cheese and decides the case on facts. It's a good sign that he rightly suggested the two sides try to reach a settlement. Then finally, there was the tawdry case of the YouTube Divorce. Tricia Walsh-Smith went on a furious diatribe that figuratively pantsed her estranged husband Philip Smith, president of the Shubert Organization. It was a sorry bid to gain leverage in her divorce and em- barrass the other side with juicy details including the inevitable unsheathing of intimate issues. Divorce lawyers say it's a first. "This is absolutely a new step and I think it's scary," said one. "I don't think it's the kind of thing people should be doing, and it's the kind of thing judges frown upon," said another. Smith's lawyer had no comment other than, "We're kind of appalled." Orazietti is definitely on to something: — Gretchen Drummie move on. In criminal law, this is called T here comes a time in the course of some relation- ships when you need to "getting off the record." This may be happening be- cause that difficult client you took on (and you could tell in that first phone call) has mor- phed from being difficult to un- manageable. But there are only certain situations in which you can unilaterally move to remove yourself from the record. In criminal law, when a case is pending, you have to ensure that you have not jeopardized your client's rights: see rule 2.09, "Withdrawal from Repre- sentation," Rules of Professional Conduct, Law Society of Upper Canada. Non-payment of fees does not justify your application to be removed from the record when the trial or sentencing date is fast approaching. The rule says, ". . . the lawyer . . . should not desert the client at a critical stage of a matter or at a time when with- drawal would put the client in a position of disadvantage or peril." Getting off the record A Criminal I have never seen a lawyer apply to get off the record at a sentencing, except where he had been discharged by the cli- ent. I have one matter in which the legal aid certificate was can- celled, as the client is now work- ing, but he failed to sign a repay- ment agreement. The chutzpah! But I will not stoop to ask to get off the record when my client is about to enter the slammer. Subject to the rules about criminal proceedings and the di- rection of the court, mandatory reasons for removal from the record under the Rules of Pro- fessional Conduct include being discharged by the client, being instructed to do something in- consistent with the lawyer's duty to the court, and not being com- petent to handle the matter. As a general rule, I would not Mind By Rosalind Conway ask to get off the record for a short summary conviction trial less than 30 days before the trial date. In Ottawa, we are required to file a certificate of readiness in provin- cial court about eight weeks prior to the trial date, so this is the time when one can ensure that one is properly retained. Applications for removal as counsel of record are governed in Ontario by rule 24 in the Rules of the Ontario Court of Justice, and by rule 25 in the Su- perior Court of Justice Criminal Proceedings Rules. The rules require an appli- cation and an affidavit, by or on behalf of the applicant, and proof of service 15 days prior to the hearing of the application. www.lawtimesnews.com this sorry bunch should try his idea on for size. Without prejudice, of course. more. The practice in provin- cial court in Ottawa is simply to fill out a form to bring the case forward in court and to serve the client with the form by registered mail. The less you say about why you are running in the other direction, the better. "Change of counsel," "no longer retained," "breakdown in the solicitor-client relationship" — these are fairly innocuous. If the cause was a conflict Note that the court may dis- pense with compliance. I always feel that less is not refer to his porky (Cockney slang: porkie pies = lies). You just keep sailing forward as if nothing has happened. A few words about getting on the record. A new client asks you to ap- pear at his application to ad- journ his trial, because he wants to retain counsel. Can you ap- pear while you are waiting to be retained and ask for that ad- journment? Be very up front about this between counsel and client, the Rules of Professional Conduct say that the notice should not state the cause of the conflict or make reference to any privileged matter. It should simply state that the lawyer is no longer act- ing and has withdrawn. If, in the course of the trial, the client has done something com- pletely outrageous — if he has lied — the route that least jeop- ardizes him is that counsel simply extremely limited retainer. You may not want to go on the re- cord. Counsel asking for such adjournments choose their words very carefully. Similarly, one should not appear in court on a designation of counsel un- less you are properly retained. It sends the wrong message to the court. Caveat solicitor. LT Rosalind Conway practises crimi- nal law in Ottawa. She can be reached at rosalind.conway@ magma.ca

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