Law Times

Law Times • JuLy 11, 2016 Page 5 www.lawtimesnews.com Court of Appeal rejects Law Society Act challenge BY YAMRI TADDESE Law Times T ax lawyer Philippe DioGuardi's profes- sional misconduct hearing may have end- ed last year with a six-week sus- pension and a $5,000 fine, but the lawyer remains in a legal wrangling with the Law Society of Upper Canada over the regu- lator's handling of confidential client information. The Ontario Court of Ap- peal rejected DioGuardi's con- stitutional challenge of the Law Society Act. DioGuardi and his father Paul, who is also his law partner, had argued the act leaves highly sensitive client in- formation vulnerable to public disclosure during law society in- vestigations. Last year, in the midst of an investigation into their practices, the DioGuardi lawyers went to the Superior Court to get an or- der protecting confidential infor- mation belonging to clients who have lodged complaints against them. The lawyers, who act for clients dealing with the Canada Revenue Agency, were concerned that if client information becomes public (and known to the CRA) through the law society proceed- ings, some of those clients may face criminal prosecution. The DioGuardi lawyers also argued that the law society should obtain a written waiver of solicitor-client privilege from complainants, perhaps in the form of a notice on the com- plaint form that complainants' information may become public. But the lower court had de- clined to intervene, adding it would not get involved in ad- ministrative proceedings "ab- sent exceptional circumstances." The court of appeal agreed. "Our conclusion on this issue is simple: we agree with the ap- plication judge's conclusion and with his reasons in support of the conclusion," said James Mac- Pherson, who wrote on behalf of the three-judge panel. Philippe DioGuardi, who was convicted of taking payment be- fore doing little or no legal work and failing to serve clients to "the standard of a competent lawyer," told Legal Feeds his challenge at the court of appeal was not about his case. "It's about protecting the pub- lic. Who cares about me?" he says. DioGuardi says the issue is that the law society has the double duty of protecting the public and protecting complain- ants' privileged information. "There are times when these two duties are in conf lict and that's when you have a problem," he says. Although the regulator has processes in place to pro- tect confidential information, "the law society is not perfect," DioGuardi also says, adding complainants should know there's a chance their informa- tion might end up in the hands of the public or the CRA during the law society's investigative process. Part of the DioGuardis' argument was that the legislative scheme in the Law Society Act re- lated to the Law Society of Upper Canada's investigation powers violates the Charter ss. 7 and 8 rights of the complainant clients. In its brief written decision, the court of appeal quoted Superior Court Justice Edward Belobaba, who said the application was pre- mature and the issue should first be decided at the law society. "In short, there is every good reason to allow the administra- tive process in this case to run its course," Belobaba said. "The Law Society Tribunal should be al- lowed to decide at first instance whether the constitutional arguments advanced herein are well-founded and, in particular, whether there is any room in the legislative design and policy of the act for the specific client-fo- cused protections being sought by the applicants." But DioGuardi says client in- formation is at its most vulner- able in the time frame between when a complaint is made to the law society and a formal hearing starts before a tribunal. If and when law society investigators request documents from the CRA in relation to a complaint, DioGuardi says they may well raise eyebrows at the agency, which may then re-examine the clients associated with the law- yer being investigated. At that point, "there's no tri- bunal yet; it's just an investiga- tion," DioGuardi says. "How's the tribunal going to fix the genie once it's out of the bottle?" LT Fellow will focus on assisting self-represented litigants BY GABRIELLE GIRODAY Law Times T he national director of Pro Bono Students Canada will use a fel- lowship to look at how legal coaching may help self- represented litigants tackle their legal problems. Nikki Gershbain, head of Pro Bono Students Canada since 2010 and a former family law- yer, is one of the recipients of this year's Community Leadership in Justice Fellowships. Recipi- ents of the award from the Law Foundation of Ontario receive up to $15,000 to cover costs at a host college or university. Gershbain will be partnering with Dr. Julie Macfarlane at the University of Windsor's Faculty of Law. As part of her fellowship, the LFO said Gershbain will create "teaching tools for a new model of legal service delivery called legal 'coaching.'" "I think that we're looking at self-represented litigants because, really, they are the manifestation of so many of the problems that we're seeing in the justice system. When we as a profession start to look at these alternative models of service delivery, it's because so many people are self-represent- ed," says Gershbain. "The vast majority [of people] who self-represent don't neces- sarily want to be in that situa- tion. They would prefer to be represented by counsel but they don't have the resources to be able to afford it, or they were rep- resented by counsel, but they ran out of resources." Gershbain said there are "huge massive numbers of ordinary Ca- nadians who cannot afford to ac- cess justice," and this impacts the greater justice system. "Self-representation is not only onerous for the person who's going through it but it also is a burden on the court system, so is- sues take longer to resolve, they're harder to settle, and I think, sig- nificantly, it means higher costs for the person who is represented, so if you've got one person who's represented and one person who isn't, you're also placing . . . a bur- den on that person for no fault of their own necessarily." For Gershbain, developing legal coaching is part of the un- bundling trend. The lawyer's job in the coaching model is to "set the client up for success," she says. "[T]he lawyer is there to guide the client through the process, teach the client what he or she needs to know to get through the process, and to empower the client to be able to get through it on their own," she says. Gershbain likens legal coach- ing to what a coach does in sports, where a coach "brings out the very best" in an athlete. She says ideal clients for coaching would have high levels of literacy and comprehension, an open- ness to being coached, and self- motivation and self-direction. However, she says coaching is not "the right solution" for everyone. "Part of the teaching and the training of lawyers is to think about who are the clients out there who would be appropriate to be coached," she said. Brenda Young, community justice director for the Chippe- was of the Thames First Nation, in southwest Ontario, is also a fellowship recipient. Young's fellowship, with West- ern University's Faculty of Law, will target "the connection be- tween international and domestic legal frameworks on the human right to economic justice for In- digenous people and how these can be translated and applied to achieve economic justice locally," said an LFO news release. Sarah Pole, executive direc- tor of Law in Action Within Schools, will look at urban in- equity as part of her fellowship. An LFO news release said she will "research and build connec- tions among the education, legal, and urban planning sectors to explore how our physical envi- ronments impact diverse youth, their education, and their abil- ity to engage as citizens in issues that matter to them." Through the fellowship, or- ganizations can receive up to $50,000 to cover the cost of filling the role of the fellow, or support- ing the organization, while the fellow's work is underway. LT NEWS Nikki Gershbain is one of the recipi- ents of the Law Foundation of Ontario's Community Leadership in Justice Fellowships. www.mckellar.com We would like to thank all those who took part in THE 18 TH ANNUAL McKELLAR CHARITY GOLF DAY on Monday, June 20th, 2016. This event raised $20,850.00 for wicc (women in insurance cancer crusade) for use and support in their fight against cancer. A special thanks goes out to our sponsors for this event: TITLE SPONSOR FINANCIAL HORIZONS GROUP PLATINUM SPONSORS SUN LIFE FINANCIAL MANULIFE FINANCIAL GOLD SPONSOR BMO LIFE ASSURANCE COMPANY BRONZE SPONSOR THE RIORDON DESIGN GROUP INC. We appreciate your support! ntitled-4 1 2016-07-05 2:42 PM Paul B. Schabas has been elected as The Law Society of Upper Canada's 66 th Treasurer. The Treasurer is the top-elected official of the Law Society. Treasurer Schabas is a partner and senior trial and appellate counsel at Blake, Cassels & Graydon LLP in Toronto. He was first elected a bencher of the Law Society in 2007 and was re-elected in 2011 and 2015. As a bencher, he has been chair of the Human Rights Monitoring Group, the Access to Justice Committee and the Professional Regulation Committee. He is also chair of the Law Foundation of Ontario. He was called to the Ontario Bar in 1986. The Law Society regulates Ontario's lawyers and paralegals in the public interest. lsuc.on.ca Paul B. Schabas elected Treasurer of e Law Society of Upper Canada ntitled-1 1 2016-07-06 9:01 AM

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