Law Times

Law Times • march 27, 2017 Page 7 www.lawtimesnews.com Problems with referral fees exist, so ban them BY ALAN SHANOFF I n its February meeting, the Law Society of Upper Canada considered whether to ban or limit referral fees. This issue was put before Convocation after re- lease of the second report from the Ad- vertising and Fee Arrangements Issues Working Group of the LSUC. The working group had been studying the issue of referral fees since early 2016. In its first report, released in June 2016, the working group noted abuses con- cerning referral fee practices, specifically relating to clients not being made "suffi- ciently aware of the fact that they are be- ing referred to another lawyer, that there is a referral fee or the quantum of the fee." Another concern is related to "unreason- able and disproportionate" upfront refer- ral fees, in addition to an up to 30-per-cent share of the fee at the successful conclu- sion of the file. The working group sought input on various options including banning and limiting referral fees. Having received input from interested parties and upon further ref lection, the working group was unable to come to a consensus and punted the issue to Convocation in its second re- port earlier this year. The arguments in favour of a ban on referral fees are simple. Lawyers who are unable or lacking in expertise to handle a file have a professional obligation to re- fer the file to a lawyer who is able and has expertise to handle the file. Most lawyers already do this and a ban would appear to be easy to implement. The arguments against a ban are more complex. The chief argument appears to re- volve around a fear that a ban on referral fees might encour- age lawyers to act on files for which they lack competence. That is a strange argument. To give credence to it is to reward lawyers who would violate their professional obli- gations. This lowest common denominator argument isn't worthy of consideration. Then there's the argument that "[p]ro- hibiting all referral fees may risk throwing out good referral systems with the bad." I wasn't aware there were "good" for-profit lawyer referral systems. Apparently, there are lawyers who specialize "in developing referral systems to facilitate access to jus- tice for consumers." Banning referral fees "may make it economically unviable for li- censees to develop expert referral systems designed to assist Ontarians." So, allowing lawyers to charge referral fees is an access to justice issue? It seems we are to accept that potential clients may have difficulty in finding a qualified lawyer unless they pay a referral fee. If so, that speaks to seri- ous issues, and allowing referral fees can hardly address those issues. Doesn't the LSUC operate a lawyer referral service to enable the public to ac- cess competent lawyers in the areas of law they require services? If this referral ser- vice is inadequate and there is a real need for "expert referral systems," shouldn't the LSUC address this? Why should anybody need to utilize a for- profit lawyer referral service to locate a competent lawyer? Why should any lawyer be al- lowed to charge fees merely for referring a client to a compe- tent lawyer? The next argument against a ban is troubling. It seems a ban "may also lead to undis- closed cash referrals or other undisclosed illicit means to circumvent the prohibi- tion." That sets a rather low bar for law- yers, fearing they may resort to kickbacks or illegal payments. The last argument against a ban is more sophisticated. It seems a ban might lead to the consolidation of firms oper- ating as brokerages or lawyers may join partnerships so as to be able to partake in compensation for internal referrals. But, if referral fees are banned, why would bro- kerage firms exist? I have no reply to the partnership referral argument other than to say it is rather speculative. Don't the arguments against a ban ap- ply equally to placing limits on referral fees? If a ban would neither be workable nor effective, why would we think that im- posing limits would be either workable or effective? In other words, what would pre- vent lawyers from resorting to nefarious means to circumvent a cap on referral fees if referral fee limits are imposed? So why bother doing anything? Yet, Convocation voted 35-9 rejecting a ban, instead opting for a referral fee limit. The working group is to come up with rec- ommendations for a limit. Allowing lawyers to charge referral fees with a cap would seem to provide the Law Society's stamp of approval to refer- ral fees and brokerage lawyers. Why then shouldn't every lawyer charge referral fees? There are inevitably negative conse- quences when referral fees are permit- ted. If we assume the lawyer would have charged a fair and reasonable fee in the absence of having to pay a referral fee, there are three likely possibilities that arise with payment of referral fees: The lawyer performing the work may charge a larger fee than would have been charged had no referral fee been imposed, the lawyer may cut corners on the work being performed or the lawyer may suffer economically. The evils of referral fees exist regardless of whether the fees are transparent. Refer- ral fees are unseemly and a kissing cousin to kickbacks. Limiting referral fees and rendering them transparent is akin to the proverbial putting lipstick on a pig. Con- vocation ought to have banned referral fees altogether. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His email address is ashanoff@gmail.com. Criminal law out of step on HIV BY RYAN PECK W hile there remains no cure for HIV, available medications are effective at managing the virus. People living with HIV who have access to sus- tained treatment have more or less the same life expec- tancy as those who are HIV-negative. Knowledge of prevention strategies is also better than ever, and it is much harder to transmit HIV than generally supposed. For example, the risk of transmission is zero if a con- dom is used properly and no breakage occurs, and it's negligible to zero if a person living with HIV is being successfully treated with antiretroviral medications. While this scientific reality must not be ignored, many people, including in Ontario, face significant institutional, social and economic barriers to access- ing health care and life-saving medications. Moreover, social attitudes have not nearly kept pace with science; HIV-related stigma and accompanying discrimination remain entrenched and pervasive. It is shameful that, per a 2012 Canada-wide study prepared for the Public Health Agency of Canada, 15 per cent of Canadians feel afraid of people with HIV, 24 per cent feel uncomfort- able wearing a sweater once worn by a person living with HIV and 22 per cent feel uncomfortable shop- ping at a small neighbourhood grocery store owned by someone living with HIV. Such attitudes inf luence public policy and law, and Canada's unjust criminalization of people living with HIV is one glaring example. The law has become more draconian even as HIV has become more manageable and as transmission risks decrease. In 1998, in its first decision on the subject, the Supreme Court of Canada established that people living with HIV could be found guilty of aggravated assault if they did not disclose their HIV status to a sexual partner prior to sex that posed a so-called "significant risk" of HIV transmission. In 2012, a subsequent SCC ruling established a duty to disclose before sex that poses a "realistic possibility" of HIV transmission. In defining this new standard, the SCC and most other courts, police and Crown prosecutors failed to properly consider current scientific evidence about transmission risks. As a result, people are being con- victed of aggravated sexual assault — one of the most serious offences in Canada's Criminal Code, designed to respond to the most horrific of forced sex acts — in circumstances where (i) sexual behaviour is consensual; (ii) there is negligible to no risk of HIV transmission; (iii) there is no intention to transmit HIV; and (iv) trans- mission does not occur. The current approach to HIV criminalization has a disproportionate impact on women, indigenous people, migrants and African/Caribbean/black communities. For example, there is great concern that women with HIV who are in abusive relationships will face aggra- vated sexual assault charges in situations wherein they cannot safely impose condom use nor disclose their HIV status. The overly broad criminalization of HIV non- disclosure is also dramatic from a public health per- spective. It hinders HIV prevention efforts and ham- pers care, treatment and support for those living with HIV by providing disincentives for HIV testing, and it deters honest and open conversations with health-care providers, including public health authorities, for legiti- mate fear that such conversations will be used in crimi- nal cases. But problems with the current use of the criminal law are starting to be recognized in various quarters. The recently released HIV/AIDS strategy, produced by the Ontario Advisory Committee on HIV/AIDS and supported by the Ontario Ministry of Health and Long- Term Care, recognizes negative impacts of the current use of the criminal law and calls for engagement with community stakeholders and others on reform. The medical community is speaking up. More than 70 leading scientists working in the field of HIV ex- pressed serious concern with the law in their Canadian consensus statement on HIV and its transmission in the context of criminal law. Feminists are speaking up, raising their deep concerns about equating HIV non-disclosure with force and threats that normally define our under- standing of sexual assault and with this stigmatiz- ing misuse of the law that labels people living with HIV, including women, as sex offenders. After many years of silence, the federal government is finally speaking up. In a World AIDS Day 2016 state- ment, federal Minister of Justice Jody Wilson-Ray- bould stated, "[T]he over-criminalization of HIV non- disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better ref lect the current scientific evidence on the re- alities of this disease." And, of course, the HIV community is speaking up. For more than seven years, the Ontario Working Group on Criminal Law and HIV Exposure has attempted to engage in meaningful dialogue with the provincial Ministry of the Attorney General in order to ensure that allegations of HIV non-disclosure are handled by Crown prosecutors in a manner that is consistent with current science, human rights principles and the public health response to HIV. Unfortunately, MAG has failed to engage in a good-faith dialogue and cease its over- zealous approach to criminalizing people with HIV; Ontario remains a world leader in such prosecutions. As a result, CLHE and many others are demand- ing an immediate moratorium on HIV non-disclosure prosecutions, unless there is alleged intentional trans- mission of HIV, while law reform options are explored and sound prosecutorial guidelines developed in mean- ingful consultation with community. Injustice against people living with HIV must end now. LT uRyan Peck is the recipient of the 2016 Legal Aid Ontario Sidney B. Linden Award, executive director of HIV & AIDS Legal Clinic Ontario, co-chairman of the Ontario Working Group on Criminal Law and HIV Exposure and a member of the board of directors of the Canadian HIV/AIDS Legal Network. u SPEAKER'S CORNER COMMENT Social Justice Alan Shanoff

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