Law Times

Law Times • January 8, 2018 Page 7 www.lawtimesnews.com Better call Saul: advertising rules for lawyers BY JEFFREY LEM W ith all of the recent drama at the Law Society of Up- per Canada (now known as the Law Society of Ontario), real estate lawyers might be forgiven for thinking that nothing remotely good for their profession has happened at the law society lately. Nothing could be further from the truth. Sid Troister and Jerry Udell are do- ing yeoman's work co-chairing the Real Estate Issues Group. Furthermore, the law society's Adver- tising and Fee Arrangements Group re- cently introduced comprehensive rules to crack down on aggressive real estate law- yer price advertising. You know the type — large ads with bold numbers announcing low (almost impossibly low) prices for residential real estate deals. The problem, as it turns out, is that these low prices are rarely the final cost, as undisclosed "disbursements" and "ex- tras" quickly add up to make the ultimate price borne by the consumer considerably higher. The practice is hardly limited to real estate lawyers, but the residential real es- tate world is notoriously competitive, and much of that competition is, sadly, price- driven. The law society is intent on levelling the playing field for residential real estate lawyers by placing strict parameters on price advertising for real estate deals. Effective immediately, real estate law- yers who advertise a price (any price) will be deemed to be advertising an "all-in" price, with no ability to subsequently tack on any disbursements or extras, except for a very specific number of enumerated "permitted dis- bursements." Of course, the devil is in the details and, in this case, the details are in that list of permitted disbursements. Lawyers who advertise a price are limited to the fol- lowing seven permitted dis- bursements: 1.) land transfer tax; 2.) government docu- ment registration fees; 3.) fees charged by government; 4.) Teranet fees; 5.) the cost of a condominium status certificate; 6.) payment for letters from creditors' lawyers regarding similar name executions; and 7.) any title insurance pre- mium. Although not listed as a permitted dis- bursement, the rule also deems the adver- tised price to be exclusive of Harmonized Sales Tax, so a lawyer can add any appli- cable HST on top of the advertised price. Furthermore, in the case of a purchase transaction, the advertised price includes the price of one transfer, one mortgage and one discharge of mortgage, so ag- gressive lawyers cannot charge a fixed price for the transfer but then consider the mortgage and discharge of mortgage to be "extras" on top of the fixed price. In the case of a sale, the price includes the price of acting on the discharge of the first mortgage. Although applicable to both commer- cial and residential real estate deals, the rule will, practically speaking, apply only to residential real estate since price adver- tising for commercial real estate is all but non-existent. This rule only applies to "advertis- ing" in the strict sense of the word. Real estate lawyers can still quote, on a case-by-case basis, their own custom re- tainer formulas, which may include more disbursements than can be found on the list of permitted disbursements — so long as they don't ad- vertise a price. Once there is a number beside a dollar sign on a law- yer's advertising, the permit- ted disbursement rules are engaged. So, for instance, many real estate lawyers still use conveyancers and title searchers and charge out hundreds of dol- lars extra for these conveyancers and title searchers, on top of the lawyer's price for the other legal work. That practice is still permitted by the rules, so long as the lawyers who do so do not advertise a price. (That's because once a price is advertised, it is deemed to be "all inclusive" save only and except for the permitted disbursements). In short, it's only the advertising of the price that at- tracts the operation of this rule, and there is obviously no requirement to advertise a price. While these provisions relating to price advertising are new for real estate lawyers, all lawyers (including real estate lawyers) remain governed by the law society's gen- eral advertising rules, and the law society now seems poised to better enforce the general advertising rules. These general advertising rules restrict lawyers from marketing (which is broader than just "advertising") unless those mar- keting activities are: a) demonstrably true, accurate and verifiable; b) neither mis- leading, confusing or deceptive, nor likely to mislead, confuse or deceive; and c) in the best interests of the public and consis- tent with a high standard of professional- ism. The requirement that a lawyer take into account "the best interests of the public" and be "consistent with a high standard of professionalism" is a deliberately broad basket clause. which is typically applied to curb the tasteless lawyer advertising that we often see and associate with legal ad- vertising in the United States (watchers of the U.S. television program Better Call Saul will be familiar with this method, as the show focuses on a criminal lawyer in New Mexico). The sheer breadth of this proscription should be noted by real estate lawyers who even think about pushing the boundaries of tasteful advertising. While the new advertising rules won't stop the race to the bottom price pressures that have plagued the residential real es- tate law market for decades now, they will level the playing field for all practitioners by curbing the practice of bait-and-switch price advertising. With the new rules in place, advertis- ing lawyers will not be permitted to lure in clients with low advertised prices and then increase those prices on closing us- ing disbursements and extras. At least now, the bottom feeders are actually go- ing to have to honour the actual prices that they advertise. LT uJeffrey Lem is the director of titles for the province of Ontario and an elected bencher for the Law Society of Ontario. This article ref lects the personal views of the author alone. Now the work really begins BY REBECCA BROMWICH I n 2017, when the #MeToo movement was named Time Magazine's Person of the Year, the move- ments' creator, Tarana Burke, said, "Now the work really begins." It is a new year. Let's roll up our sleeves and do that work. But, to bring about a more equal world, what work can we in the Canadian legal profession do? The direct work to be done on sexual assault and sexual harassment cases is enormous. The Royal Canadian Mounted Police is process- ing more than 1,100 open claims made by women in relation to workplace sexual assault and sexual ha- rassment. In marked contrast to other violent crimes, which have decreased in number over the past 10 years, Statistics Canada's most recent General Social Survey on Victimization found rates of sexual assault to be at a steady level, and it found also that victims of sexual assault were no more likely to report the offences now than they were a decade ago. Offending rates remain too high, and reporting rates remain too low. Taking action against sexual harassment and sexu- al assault is where we should begin but not where we should stop. Not all of us will be involved directly in those cases. It is far too easy to make the #metoo move- ment about monsters. The high-profile men recently deposed due to sex- ual harassment and assault allegations were enabled in their abuse by their positions of power. People and structures were complicit, many of them women. More complicated than rooting out villains is the knotty work of untangling the gender bias and systemic in- equalities in a society that normalizes and enables them. Social order rests not only on law but also on a cul- tural web of small interactions — we all have some power at our local level to do law differently. It is not only men but also women who need to act. My book about the death of Ashley Smith while she was imprisoned concluded with a challenge that is ever more relevant — to find ways to ensure that contexts where legal processes are carried out are emancipatory spaces for women and girls as world makers. Smith, a 19-year-old, was first incarcerated for throwing apples and stealing a CD. She died in prison after having spent several years in solitary confinement. Smith had accumulated hun- dreds of disciplinary infractions in prison. Her death was found by an inquest jury to be a homicide perpe- trated by the justice and correctional systems. Legal and correctional processes failed her by not making sense of her actions. Unless we open those spaces, there will be no justice. We must talk differently about women and girls. We need to do better to represent women, by confirming they matter as individual people, not just as someone's sister, mother, wife or daughter. We must put forward the complexities of women's characters. It is imperative that we think differently about ethics in representation. Law has cultural power. When we represent people in advocacy, we also create representations, or depic- tions, of persons. These representations take on a cul- tural reality. They can confirm or challenge stereo- types. They create worlds. We can do better to make visible the pain of victims and the failures of our systems to protect them. We must say their names. For example, in discussing the trial of Basil Borutski for his 2015 misogynist murder spree in Wilno, Ont., we should focus much more on the lives that were ended and the failure of our systems to protect An- astasia Kuzyk, Nathalie Warmerdam and Carol Culleton. We should turn our gaze not to the notoriety of the perpetrator but to the courage of the women who died and on fighting for those who are living. When representing or cross-examining a woman, we can consider how her humanity is being depicted in the courtroom. We need to ask ourselves: Is how I am representing or questioning or describing this cli- ent, complainant or opposing party itself a form of vio- lence? The trial in R. v. Barton, 2017 ABCA 216 presents an example of a troubling representation of women in- tersecting with race and gender. Bradley Barton was charged with first-degree mur- der in relation to the death of Cindy Gladue, who was found dead in the bathtub in a hotel room occupied by Barton. She died from blood loss from a perforation of her vaginal wall. The Alberta Court of Appeal overturned Barton's acquittal and ordered a new trial on the basis of errors in the charge to the jury. In addition to the errors in law, the trial has been condemned because of the manner in which Gladue's dismembered body was represented in the court. Her actual vagina was brought in for in- spection. The trial of Barton itself dehumanized Cindy Gladue. Those of us in the Canadian legal profession can make 2018 a year of taking action toward more just and emancipatory lawyering. We are all more powerful than we think. LT uDr. Rebecca Bromwich is an Ontario lawyer and legal academic. She serves as the director of the graduate di- ploma in conf lict resolution program at Carleton Univer- sity in the Department of Law and Legal Studies. u SPEAKER'S CORNER COMMENT The Dirt Je rey W. Lem Je rey W. Lem

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