Law Times

January 29, 2018

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Page 2 January 29, 2018 • Law Times and not initiated by a complaint from the public or a past or cur- rent client," he says. The law society recently ap- proved changes to clamp down on misleading fee advertise- ments in the real estate law area. The changes mean that fees real estate lawyers advertise must now be all-in prices. Real estate lawyers cannot add fur- ther charges for disbursements afterwards, unless those dis- bursements fall under a few spe- cific exceptions. While the al- legations against Rothman con- cern the rules that already exist- ed before the changes, some real estate lawyers say the Rothman matter shows a recent push on behalf of the law society to boost its enforcement in the area. Lawyers say there is no other area of law that is as price and fee competitive as real estate. This means that some practi- tioners set particularly low fees. There are no rules against hav- ing fixed low fees, but problems arise when lawyers charge extras at the conclusion of a transac- tion. This misleads the public, abuses the system and causes an unlevelled playing field, lawyers say. Speaking generally, Eldon Horner, past chairman of the Federation of Ontario Law As- sociations, says the advertising practices of some lawyers are just a symptom of a larger trend that is marginalizing the practice of real estate law into something people view as a commodity. "That brings a risk to both lawyers and the public," he says. The law society alleged in its notice of application that Roth- man's advertising of fees, dis- counts and guarantees were not "reasonably precise" and could mislead, confuse or deceive the public. It was unclear whether dis- bursements and fees were in- cluded in f lat-rate legal fees Rothman advertised, as well as how they applied, the applica- tion said. Rothman, however, says the firm's fees and discounts are clearly posted on the website and that the marketing is in line with that of other real estate lawyers. He says the firm has asked the law society to approve marketing material on numer- ous occasions, but the response has always been that lawyers must self assess. The law society also alleged that from October 2016 until January 2017, Rothman's mar- keting materials advertised a specialization in Ontario real es- tate transactions when he in fact held no such certification from the law society. Rothman says he never held himself out person- ally as a specialist, but that the firm simply noted it specializes in real estate, as 90 per cent of its business is in that area. The law society also alleged that Rothman had commit- ted professional misconduct by using the firm name Real- LLP despite a decision by a committee of benchers upholding a decision by LSO staff denying him cer- tification of authorization from using "Real Estate Professional Corporation." The application also claimed that the firm's name "suggests a directory of real estate lawyers in Canada, as opposed to one specific law firm providing real estate law services." Rothman, who is listed as the managing partner of his firm, says his firm's name com- plies with the rules and that his firm holds a federally registered trademark for the name of the firm, which he says is "singularly unique." He adds that it is unreason- able to argue that the registered trade name is generic or merely descriptive and that the formal registration of the name means his firm is the only one in the country legally permitted to use the name. LT private bar, who argue they can better serve the public through the certificate system. Last year, LAO temporarily scaled back certificates in cases where the accused was not fac- ing jail time after posting a $26-million deficit. At the time, the private bar blamed the deficit on a swelling staff at the organization. LAO officials said the deficit was largely due to an increase in refugee services in recent years. LAO also threatened to sus- pend its refugee services last fall if it did not receive the necessary funding from the federal gov- ernment, which came through in the end. The law society is looking to not only build a stronger re- lationship between it and LAO but also to help improve LAO's relationship with the private bar. Callaghan says that LAO officials have said they believe they have been communicat- ing well, but other stakehold- ers have said communications could improve. He says the law society hopes to provide a neu- tral forum for stakeholders to make sure they feel like they are being heard. As part of the approved rec- ommendations, the law society will also look to convene pub- lic symposia on legal aid issues, encourage the collection of de- mographic data on legal aid and champion the need for "robust legal aid" with the federal and provincial governments. Going forward, the law soci- ety's recommended nominees to the LAO board will include individuals with experience in the legal aid system from the clinic system and the private bar. The law society will also set up a protocol for the individu- als it recommends to the LAO board to ensure communica- tions f low between the two or- ganizations. Sean Rehaag, an associate professor at Osgoode Hall Law School, says the report includes helpful recommendations about improving stakeholder commu- nications and transparency at LAO, but harder questions re- main. "It is nice to see the law soci- ety talking about access to jus- tice for low-income people. At the end of the day, though, the report shies away from impor- tant questions," Rehaag says. Rehaag, who resigned from the LAO board in 2014 because he lost confidence in LAO man- agement, says these questions include why legal profession- als dominate the bodies that govern both LAO and the law society, how the organizations could be structured to be more accountable to clients rather than professionals and why law society fees are structured so that junior lawyers doing work paid through legal aid pay the same fee as senior partners on Bay Street. "While I'm all for improv- ing things at LAO, there's even more work to be done to transform the law society into an organization that fights against the marginalization of low-income people rather than perpetuating that marginaliza- tion," he says. Callaghan says the report, however, is just a beginning. "People have to see the report for what it is. It's not an end. It's a start," he says. "It's to get the law society en- gaged." Callaghan adds that it is also important to remember where the different mandates of the law society and LAO differ. e group did not want to conflate the two, he says. LT Continued from page 1 Regulator to guide discussion Competitive area of law Continued from page 1 NEWS 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM This is more than a phone book. 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