Archive for the ‘legal profession’ Category

Written Retainer Agreement Ousts Small Claim Court’s Jurisdiction

December 8, 2014

Image via Brainden.com

If you’re an Ontario litigator and thought suing your client for fees in Small Claims Court based upon a written retainer agreement was an option, then take a read of Justice Nordheimer’s decision in Jane Conte Professional Corporation v. Josephine Smith, 2014 ONSC 6009 (CanLII), (Div.Ct.).

The case dealt with an appeal by the defendant client from the decision of Deputy Judge Prattas, dated April 29, 2014, dismissing her motion to dismiss her former counsel’s action for unpaid accounts.  The plaintiff lawyer commenced an action against the client defendant in the Small Claims Court seeking to recover payment of the sum of $26,051.59 pursuant to a contingency fee agreement relating to a personal injury action.  Nordheimer J. allowed the appeal, set aside the order of the Deputy Judge and dismissed the claim for want of jurisdiction and held, in part:

[16]      It will be seen from these sections that the Legislature has established a process by which the validity and enforceability of written fee agreements between lawyers and clients are to be handled.  There is nothing in any of these sections that gives any authority to the Small Claims Court to consider issues arising under a written fee agreement including a contingency fee agreement.  Indeed, as I have already mentioned, the Small Claims Court is expressly excluded from considering such matters.

[20] In my view, once a lawyer chooses to enter into a written agreement with his or her client “respecting the amount and manner of payment for the whole or a part of any past or future services in respect of business done or to be done by the solicitor” then the lawyer is bound by the procedures set out in ss. 20 to 32 of the Solicitors Act. In particular, if the lawyer wishes to enforce the agreement then he or she must, as set out in s. 23, bring an application for that purpose in the court “in which the business or any part of it was done or a judge thereof, or, if the business was not done in any court, by the Superior Court of Justice”. I repeat that s. 23 expressly excludes the Small Claims Court from this authority.

Nordheimer J. expressly rejected the former lawyer’s argument that the contingency fee agreement was a “hybrid” agreement, ousting it from judicial scrutiny under ss.20-32 of the Solicitors Act, R.S.O. 1990, c. S.15, stating:

[23]      Further, even if the respondent is correct that the Agreement in this case was both a contingency fee agreement and a regular fee agreement, depending on how events unfolded, that result would not take the Agreement outside the application of ss. 20 to 32 including the enforcement procedure set out in s. 23 since those provisions apply to all written fee agreements.

[24]      Consequently, I concluded that the Small Claims Court had no jurisdiction to consider a claim made by a lawyer based on a written fee agreement including a contingency fee agreement.  I would note, in passing, that this conclusion appears to be consistent with the general rule that questions involving the nature, validity or effect of a contingency fee agreement should be resolved by judges:  Cookish v. Paul Lee Associates Professional Corp.,[2013] O.J. No. 1947 (C.A.) at para. 39.

This decision may come as a big surprise to most who sue their clients for unpaid legal accounts in Small Claims Court.

It is puzzling that the Small Claims Court retains jurisdiction in actions between a lawyer and client for unpaid accounts where there is no written retainer agreement, but loses jurisdiction where there is a written retainer agreement. Of course, all contingency fee agreements must be in writing pursuant s. 28.1(4) of the Solicitors Act.

Incidentally, the Court of Appeal for Ontario previously held that where a written retainer agreement includes an  arbitration clause for fee disputes, it is enforceable, as long as the arbitrator applies the protections under the Solicitors Act: : see, Jean Estate v. Wires Jolley LLP, 2009 ONCA 339 (CanLII) (Ont. C.A.).

Don’t Judge A Book By Its Cover: Professional Misconduct Edition

January 7, 2014

Over at The Canadian Privacy Law Blog, David T. S. Fraser writes a damning post of prosecutorial misconduct in the wake of the scathing decision of Justice Mosley of the Federal Court in IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF].

See also, Fraser’s earlier post: Canadian Privacy Law Blog: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says).

Fraser’s posts mince no word and I commend them both,  but here is the key point:

Courts are generally hesitant to go so far as to say that an affiant or a legal advisor lied to the court. That the Court did so in this case highlights how significant and egregious it was. This sort of conduct brings the administration of justice into disrepute and casts a pall over every warrant ever issued by the Court.

The decision names five Department of Justice lawyers who made “appearances” at the hearing of this matter but does not specify on whose specific advice CSIS was acting.

The warrant system only works if CSIS and their lawyers are truthful to the Court. This duty of candour is greatly elevated when they are the only ones appearing before the Court, as there is nothing adversarial to ensure that the truth comes out.

This cannot go unnoticed. This is not a “no harm, no foul” situation. The Government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct. Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country’s top lawyer and prosecutor. Anything less would be sweeping this under the rug. [emphasis added]

It’s Fraser’s choice not to name and shame the five Department of Justice lawyers who, acting for CSIS, committed professional misconduct, or as Justice Mosley’s put it:

“…The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court’s issuance of a warrant.

[118] This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the 30-08 warrants. [emphasis added by Fraser]

Given that the decision is public record, I have no qualms in identifying the lawyers who in Fraser’s own words “[t]he Court specifically found that agents of the Canadian Security Intelligence Service — on the advice of and with the concurrence of their Department of Justice lawyers — misled the Federal Court of Canada in order to obtain a warrant or warrants under the CSIS Act.”

….

APPEARANCES:

Mr. Robert Frater

Ms. Isabelle Chartier

Mr. Jacques-Michel Cyr

Mr. Rémi Chapadeau

William F. Pentney

I have not heard of any of the lawyers, except Mr. Robert Frater, who some may know as the author of the leading text entitled “Prosecutorial Misconduct” (Canada Law Book, 2009) [ORDER IT HERE!]

Frater’s Canada Law Book author bio reads:

Robert J. Frater, B.A., LL.B., is Senior General Counsel with the Federal Department of Justice in Ottawa. He is currently a member of the Ontario bar, and has, in the past, been members of both the Northwest Territories and Nunavut bars. Mr. Frater has appeared before the Supreme Court of Canada and other appellate courts on numerous occasions, and has been counsel on many significant cases raising prosecutorial misconduct issues, such as R. v. Regan and Krieger v. The Law Society of Alberta. He has written and lectured on a wide variety of criminal law topics, and was for many years the chief writer/editor of the federal Crown’s policy manual, the Federal Prosecution Deskbook, which has been described as “one of the best sources of ethical guidance [for prosecutors.]”. He is the author of Prosecutorial Misconduct and co-author of Drug Offences in Canada, Third Edition (Canada Law Book). [emphasis added]

Oh, and this gem from the Federal Prosecution Deskbook, Chap. 9:

9.3.1 The duty to ensure that the responsibilities of the office of the Attorney General are carried out with integrity and dignity

Counsel can fulfil this duty:

  • by complying with applicable rules of ethics established by their bar association;
  • by exercising careful judgment in presenting the case for the Crown, deciding what witnesses to call, and what evidence to tender;
  • by acting with moderation, fairness, and impartiality;
  • by not discriminating on any basis prohibited by s. 15 of the Charter;
  • by adequately preparing for each case;
  • by not becoming simply an extension of a client department or investigative agency;Footnote24 and
  • by conducting plea and sentence negotiations in a manner consistent with the policy set out in this deskbook.Footnote25

9.3.2 The duty to preserve judicial independence

Counsel can fulfil this duty:

  • by not discussing matters relating to a case with the presiding judge without the participation of defence counsel;
  • by not dealing with matters in chambers that should properly be dealt with in open court;
  • by avoiding personal or private discussions with a judge in chambers while presenting a case before that judge; and
  • by refraining from appearing before a judge on a contentious matter when a personal friendship exists between Crown counsel and the judge.

9.3.3 The duty to be fair and to appear to be fair

Counsel can fulfil this duty:

  • by making disclosure in accordance with the policy set out in this manual;Footnote26

  • by bringing all relevant cases and authorities known to counsel to the attention of the court, even if they may be contrary to the Crown’s position;

  • by not expressing personal opinions on the evidence, including the credibility of witnesses, in court or in public;

  • by being conscious of the factors that can lead to wrongful convictions, such as false confessions and mistaken eyewitness identification;

  • by zealously guarding against the possibility of being afflicted by “tunnel visionFootnote27, through close identification with the investigative agency and/or victim, or through pressure by the media and/or special interest groups;

  • by remaining open to alternative theories put forward by the defence;

  • by not expressing personal opinions on the guilt or innocence of the accused in court or in public;

  • by asking relevant and proper questions during the examination of a witness and by not asking questions designed solely to embarrass, insult, abuse, belittle, or demean the witness. Cross examination can be skilful and probing, yet still show respect for the witness;

  • by respecting the court, defence counsel, the accused, and the proceedings while vigorously asserting the Crown’s position; and

  • by never permitting personal interests or partisan political considerations to interfere with the proper exercise of prosecutorial discretion.

Awkward.

FURTHER UPDATED: Where In the World is Javad Heydary?

November 28, 2013

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Via the Toronto Star, the news dropped like a bombshell and rocked the Toronto legal community:

A Toronto lawyer who launched a high-profile lawsuit on behalf of investors in the Trump International Hotel & Tower has left the country in the wake of allegations that “well in excess” of $3 million in trust funds is missing.

Litigator Javad Heydary, 49, was last heard from Nov. 15 when he told colleagues he had to return to his native Iran to tend to a sick relative.

The Law Society of Upper Canada alleges in a court filing this week that Heydary is being investigated for “misappropriation, mishandling trust funds, and failing to comply with a court order.”

In the face of the recent resignation of a number of well-respected lawyers from some half dozen boutique firms that Heydary ran in the heart of the financial district, the Law Society has taken over as trustee of the businesses.

My colleague, Selwyn  Pieters, was  among the first to pick up the story on The Twitter:

Javad Heydary

The timing of Heydary’s disappearance is in stark contrast to a recent Law Times story touting Heydary’s visionary, ground-breaking alternative law firm model:

Javad Heydary has a theory: the future of law belongs to large international and small boutique firms. So when he sought to expand his law firm a couple of years ago, he decided he didn’t want to go with something between those two extremes.

That’s when he came up with a model called “affiliated boutique firms.” Today, the Heydary law firms, besides Heydary Hamilton Professional Corp., include intellectual property practitioners at Heydary Hayes Professional Corp., family lawyers at Heydary Green Professional Corp., a litigation practice at Heydary Elliott Professional Corp., and real estate lawyers at Heydary Samuel Professional Corp.

Each firm is legally a separate entity as a professional corporation. Heydary is a shareholder in each of them. To his knowledge, no one else in the legal industry is using this business formula.

“The future of law, in my humble opinion, will be those large international law firms and boutique firms,” says Heydary. “I don’t see a future for smaller full-service firms. The market is shrinking. There’s too much competition.”

Erm, the future of law has not only left the building, he has left the country. (more…)

Yaniv Roznai, “Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution”

August 14, 2013

Yaniv Roznai (Ph.D. Candidate, London School of Economics – Law Department) has posted “Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution”, Southern California Interdisciplinary Law Journal, Vol. 22, No. 2, 2013. Here’s the abstract:

Do lawyers have any social responsibilities during a revolution? If so, what are they? Does the lawyer hold any special roles in revolutionary times? This article discusses these questions, which raise thorny theoretical and practical dilemmas. According to the article, revolutions in the Western world and the legal profession are linked. Therefore, the article describes the historical role lawyers have played in the great revolutions which have created stable liberal traditions based on the idea of “rights”: The Glorious English Revolution of 1688-1689 and the American and French Revolutions of the end of the 18th century. Moreover, the article deliberates on the characteristics of lawyers which support conservatism and oppose revolutions and vice versa. It then presents the conflicting duties which are imposed upon lawyers during revolutions. On the one hand, the lawyer has an obligation to preserve the legal order and the rule of law. This obligation may entail a duty to act in a counter-revolutionary manner. On the other hand, the lawyer has obligations to improve the legal system and to promote the rule of law. These may entail actions which support the revolutionary values or goals, especially in a democratic revolution. Lastly, the article considers the practical role of lawyers during a revolution, inter alia, in public speaking and assisting in drafting the basic documents of the new legal order. Even in times of revolutions that seek to collapse the existing legal order, the legal milieu is of great importance. The revolutionary lawyer plays a significant role in preserving and creating the temporary, transitional and new legal orders. According to the article, the participation of lawyers in a revolution strongly influences the legitimacy of the existing legal order and necessarily the legitimacy of the revolution itself.

A copy of the paper is available for download via SSRN here.

CONTENT! CONTENT! CONTENT!

April 8, 2013

Content-is-King.jpg

CONTENT!

Here are some random tweets from the Law Marketing Association 2013 conference using the #LMA13 hashtag:

@SatikZekian: Use relevant keywords in image filenames, separated by dashes not underscores.

@BradNeese: Put together a content editorial calendar.

@Heather_Morse: Search Yahoo Answers for content ideas. Cross check Google to see if anyone is blogging on that.

@BradNeese: Search results: Blue link is title tag; Meta description is description in link.

All thought-leading ideas to optimize your SEO social media law marketing strategy and an effective way to monetize your brand in order to generate leads, drive traffic and improve your Google ranking for your website or blog.

Oh, did I forget to mention CONTENT!?!

CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT. CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT CONTENT 

Any questions? Are you content or malcontent with the contents?

Not to worry, new clients should be calling you on your iPhone to retain you in 3-2-1….


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