Canadian Lawyer

June 2011

The most widely read magazine for Canadian lawyers

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letters to the editor Send your letters to: gail.cohen@thomsonreuters.com O P I N I O N BY PHILIP SLAYTON LEGAL ETHICS Canada needs a Britain has created an independent office where the public can take complaints about lawyers. It's about time this country takes that function out of the hands of law societies. attempts to complain to the law societ- ies came to nothing. I've received over a thousand such e-mails since Lawyers Gone Bad came out, and two or three messages still arrive each week. For sure, some of the people who contact me are not to be taken seriously, but a lot seem to have substantial and unresolved issues. Sadly, I have to tell them that I can't help, and that I don't know anyone who might offer succour. There's obviously something missing has been incompetent at his expense. Where can he take his complaint? What satisfaction is he likely to get? Bring the problem to us, says the pro- S CL_April_11.indd 18 vincial law society. It's our job to consider complaints and mete out discipline. But the objections to this approach are many. For starters, since when is it a good idea for people to sit in judgment of their own kind? It looks unfair, and that's because it omeone's unhappy with his erstwhile lawyer. Perhaps this person thinks the law- yer's behaviour was uneth- ical, or believes the lawyer is unfair. And, anyway, many observers (I'm one of them) think the history of self-discipline by lawyers in this country is unimpressive, to say the least. Four years ago, I published Lawyers Gone Bad. Much of the book was about lawyers who behaved improperly and what happened, or didn't happen, as a result. From the day the book came out, I have been swamped with e-mails and calls from people who want to tell me unhappy stories about their involvement with the legal profession. Most of my cor- respondents describe how some lawyer mistreated them. Many tell me how their 18 A P R I L 2 0 1 1 w w w . C A N A D I A N Lawye rma g . com 3/21/11 12:33:32 PM in the system. We need an institution, independent of the profession, where you can take a complaint about a lawyer and have it dealt with quickly, without time- wasting and expensive pomp and circum- stance. The Brits have figured this out. In October 2010, the Legal Ombudsman for England and Wales, provided for by the Legal Services Act of 2007, opened its doors. The ombudsman's job is to resolve legal complaints in a fair, independent, and informal way. Says its web site: "If we decide the service you received was unsatisfactory, we can ask the lawyer and the firm to put it right. . . . Once an Ombudsman decision is accepted, we can make sure the lawyer does do what we say is needed." The ombudsman can compel a lawyer to apologize to his client, and can require payment of up to £30,000 (Cdn$47,634) compensation for loss suffered, inconve- nience and distress experienced, or the reasonable cost of putting right an error. If the ombudsman upholds a complaint against a lawyer, that lawyer must pay a fee. A consumer must complain to his lawyer first, before going to the ombuds- man, and the ombudsman, thoughtfully, Ontario's law society already has an ombudsman In his column "Canada needs a legal ombudsman," Canadian Lawyer, April 2011, Philip Slayton selects only those facts that support his point of view. The Law Society of Upper Canada has had an ombudsman since 2005. Anyone who is dissatisfied with the law society's handling of their complaint about a lawyer or a paralegal can turn to the complaints resolution commissioner for an independent review. In addition, the Law Society of England and Wales, that Mr. Slayton is so keen to emulate, was both the advocate and the regulator of the legal profession in those countries — a situation that has never existed in Canada, and which led over the years in the U.K. to a public dissatisfaction with the inability of the law society there to resolve complaints in the public interest. In Canada, the two functions, advocate and regulator, have always been separate. The Canadian Bar Association and its provincial chapters, advocates on behalf of lawyers. Anyone with a complaint comes to one of the provincial or territorial law societies, whose mandate is to regulate in the public interest. In Canada we haven't had the problem whose solution Mr. Slayton wants to impose on us. — MALCOLM HEINS, CEO, Law Society of Upper Canada welcomes letters to the editor but reserves the right to edit for space, taste, and libel considerations. Please include your full contact information. Comments from canadianlawyermag.com CRIME STATS DON'T ADD UP TOP 10 ONTARIO FIRMS REAL TRUTH IN SENTENCING CBA not winning any points I am pretty appalled by the actions of the [Canadian Bar Association]. Not only by the way they appear to be treating their members but also by their disregard for the volunteers who were working on behalf of them all. Shameful!! — online comment from LEAVES A BAD TASTE I am concerned that the incoming president of the CBA would state that the dismissal of the [Canadian Corporate Counsel Association] board was done "in the best interest of the association." Since when does any association simply dismiss the duly elected body with whom they happen to disagree? This approach to governance concerns me deeply. — excerpt of an online comment from LESSONS LEARNED? The quality of CCCA programming over the past 10 years had done nothing but improve. I cannot com- ment on the quality of the program- ming 10 years ago, but recently the substantive and business content was excellent. There were certainly socializing opportunities but they were combined with outstanding educational programming. — online comment from WHAT THE CCCA DID One has to wonder who's driving the bus at the CBA — it looks like they've made a colossal blunder. — online comment from DISAFFECTED I am disappointed by the inaccurate statement of events presented by former CCCA executive members. As a CCCA member I was not advised of the position of the executive of the CCCA nor of their negotiations with the CBA. CCCA is supposed to repre- sent all in-house counsel yet under the previous executive that was not done. As has already been demon- strated by the success of the CCCA's spring conference, I am confident that the new executive of the CCCA will provide services to all in-house May 2011 the image they are projecting to the public. $7.00 CIVIL WAR AT THE CBA-CCCA LEAVES BEHIND QUESTIONS, ANGER, AND EVEN AN OPENING FOR A RIVAL. FIGHTING FOR INDEPENDENCE Cheryl Foy, former CCCA president CL_May_11.indd 1 4/20/11 9:44:01 AM counsel. The substantive programs offered by the CBA are outstanding. It is unfortunate that some members of the former CCCA executive appear to have whitewashed their memories of what occurred. — excerpt of an online comment from LEILA J. GOSSELIN How sad to see bullying used as the method of dispute resolution in this case. While it may have been expedi- ent, those who profess to be the spokespersons for the legal profes- sion would be well advised to rethink — online comment from SAD DAY How extraordinary to see the very organization commissioned to stew- ard and model ethical behaviour for the legal profession shoot itself in the foot — again. Shameful. — online comment from F ANDERSON Part of the problem? Let's see . . . a judge attempts to cir- cumvent the intent of Parliament (an intent that even the judge acknowl- edges is constitutionally valid) and is cheered on by the defence bar because his ruling will give their clients (i.e. criminals) less jail time . . . and yet the bar and bench continue to wonder why the public sees them as part of the problem? — online comment from RICHARD SAGE www.CANADIAN Lawyermag.com JUNE 2011 7 ANTHONY TREMMAGLIA PUBLICATIONS MAIL AGREEMENT # 40766500 l e g a l o m b u d s m a n R ye: 2011 Ma "The r eal truth in sent encin g" C anadian L a wy er R y Ma e: "F 2011 ightin g f or independenc e"

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