Archive for the ‘Rules of Professional Conduct’ Category

UPDATED: Put Me In Coach, I’m Ready to Play (Lawyer)

December 16, 2013

Did I make the team?

Over at Slaw.ca, Professor Julie MacFarlane proposes a solution to the vexing problem of “self-represented litigants (SRL’s”) in a post entitled: “Lawyers Coaching SRLs in “Self-Advocacy”? Why This Paradoxical Proposition Deserves Your Serious Consideration“.  Essentially, Professor MacFarlane, drawing upon her recent 2011-12 study and responses to the National Self-Represented Litigants Project , proposes a “Lawyer-Coach” model to stem the rising tide of “self-advocacy” within the Canadian legal system. MacFarlane writes,

How SRLs want help

SRLs want help – that is loud and clear. On-line resources get them part of the way – sometimes. But they want face-to-face help too.

Almost all of them say that they want lawyers. But they cannot afford to use a lawyer for every step of their case.

They want help to be effective self-advocates.

Crazy – or Adapting to Reality?

OK, so there is something paradoxical about lawyers assisting people to do the work that they would ordinarily charge them to do for them. The irony is that the profession now needs to consider this possibility in order to retain public legitimacy, as well as to enable the justice system to be more functional (more of this below).

Some lawyers will take the view that encouraging individuals to self-advocate is irresponsible and that our energy should be directed at bringing these SRLs “back into the fold” of full-on legal representation. While this sentiment may be coming from a good place, here is the reality – unless those same lawyers are willing to cut the cost of their services at least in half, or support a tax system that hugely expands legal aid, that it not going to happen.

And even then – if we can imagine either eventuality – there will be an appetite for saving costs. Whether this is self-advocacy, outsourcing, or access to para-legals, it’s all going in the same direction. The age of passive deference to professional advice is over. And a lawyer-coach model opens up the possibility of a lawyer/client partnership of the sort that so many personal and commercial clients now expect.

I am not entirely clear on what the “age of passive deference to professional advice” means. If I retain an accountant to give me professional tax advice, I do not offer up my opinions on how best to avoid or, heaven forfend, evade paying my taxes. The same holds true if I consult with my doctor about performing surgery under general anesthetic. It’s a given that I will defer to the person with the medical degrees hanging on their office wall. (more…)

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…)

The Do’s and Don’ts of Examination for Discovery: Refusals Edition

November 12, 2013

[5] Plaintiff’s counsel is not a litigation lawyer. She was retained by the plaintiffs “as a favour” because they all speak Serbian. This was plaintiff’s counsel’s first examination for discovery of her career. It is her evidence that she was not obstructionist. In her view, she was simply attempting to protect Tondera, whose deceased grandfather was found, based on documents notarized by the defendant Dorothy Fox (“Fox”), to have died intestate. The grandfather had held property in Montenegro which, according to the plaintiff, was allegedly transferred based on fraudulent documents.

[6] Her further evidence is that because Tondera kept saying “I guess” or “I don’t remember” counsel was following up her client’s evidence by asking “Do you know?, to ensure that the transcript would be clear. Counsel also objected to the repetitive nature of defence counsel’s questions. Plaintiffs’ counsel asserts that the examination for discovery was improperly terminated. It is her submission that the examination should have continued and thereafter the defendants could have moved on the refusals, if they chose to do so.

[8] Rule 34.14(1) states that an examination may be adjourned when there are improper interruptions, when the examination is being conducted in bad faith, when the party being questioned is unresponsive or when there are improper refusals to produce documents. Master Dash in Madonis v Dezotti 2010 ONSC 2180 (CanLII), 2010 ONSC 2180 details a set of principles for proper conduct at an examination. They may be summarized as follows:

(a) An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions.

(b) The lawyer for a party being examined may interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party, either to not answer or, to answer under objection.

(c) The lawyer for the party being examined may interrupt the examiner if necessary to ensure that the witness and counsel understand the question.

(d) It is the party who is being examined and not his other lawyer.

(e) There is often a spirit of co-operation at an examination for discovery where counsel allow some latitude and permit the lawyer for the witness to offer assistance.

(f) It is the duty of the party and not the lawyer to correct an answer given even if the answer given by the party is wrong.

(g) Counsel must not communicate with his or her client during the examination except on the record and even then, only sparingly so as not to interfere with the flow of the examination.

[9] As Case Management Master, I have had some history with this action. In my view, much of the difficulty thus far in this action stems from plaintiff’s counsel’s lack of familiarity with the litigation process. As opposed to finding her behavior obstructionist, I find it obtuse, but with good intention – that being to protect her client. Plaintiff’s counsel has, throughout the proceedings, been not only critical, but also suspicious of defence counsel. Defence counsel, in response, has taken a particularly hard line.

[10] Plaintiff’s counsel clearly failed to accept the relevance of the questions asked to the claim and/or to the defence. She should have simply refused to answer the questions. If she was of the view that there was duplication, or multiple confusing questions which I believe there were, she should have simply stated on the record that the question has already been asked and answered, leaving it to a Master on a motion to determine whether the questions are proper. An experienced litigation lawyer would have done so.

[11] There is a clear distinction to be drawn between questions refused on an examination and improper conduct. Although plaintiff’s counsel’s interruptions were annoying, I find them to be based on lack of experience and her feeling of necessity to be overly protective. She was instructing her client to answer questions truthfully based on her recollection. Perhaps her demeanour was somewhat aggressive rather than particularly civil. The Principles of Civility provide lawyers with some guidance in litigation where it is stated that “counsel, during examinations for discovery, should at all times conduct themselves as if a Judge were present”. I do not find based on the principles outlined above, that there has been improper conduct on the part of plaintiff’s counsel.

[12] As Tondera’s examination is incomplete, it is ordered that Tondera shall re-attend for her examination. In an effort to assist the parties to keep this action moving forward, I will make myself available by telephone at the re-attendance of Tondera’s examination for discovery and at the examination of Maryon Tondera, to make rulings on questions in ‘real time’. All counsel are urged to operate with a spirit of co-operation! This action is crying out for resolution so the sooner the parties can get through the discovery process to reach a mediation or pre-trial, the better all parties will be served.

[13] With respect to costs, each party shall bear their own expense for costs thrown away and for costs for re-attendance and for costs of this motion. None of the parties’ hands are completely clean. [emphasis added]

Twitter’s No Place For A Lawyer With An “Aggressive and Zealous Attitude”

April 23, 2013

Image via returntomanhood.org

Via the Toronto Star:

A Toronto criminal lawyer’s Twitter account has sparked outrage online after several offensive tweets were posted in the wake of the Boston bombing.

The tweets were sent last week from Twitter account @Dasilvalaw, which has since been deleted, though several retweets can still be found online.

“I pray for the suspects. May they slay the police army of satan. Death to all police!” reads one posting sent from @Dasilvalaw. Other tweets from that account contained vitriolic responses to offended Twitter users, including “am praying that u get violently raped. May cancer be upon u.!!!”

The lawyer, David Da Silva, 34, said in an emailed response sent Monday to the Star that he is “not the author of any such tweets.”

Asked in a follow-up email if his account had been hacked, the defence lawyer said he is “having this matter investigated at this time.”

Lawyer Nadia Liva, who sent an email to the Star saying she is acting as his counsel, said he is “very concerned” and “we are currently investigating the tweets, which were not authored by Mr. Da Silva.”

I don’t know Da Silva, either personally or professionally, but his website bio is generic: (more…)

When A Former Client Attacks You Online

March 6, 2013

Image via http://www.loveisanorientation.com

I recently came across an ABA Litigation News article by Renee Choy Ohlendorf entitled “Ethical Limits on Rebutting Client’s Disparaging Internet Comments”.

The article discusses Formal Opinion No. 525 by the Los Angeles County Bar Association’s (LACBA) Professional Responsibility and Ethics Committee, which purports to define a lawyer’s professional and ethical duties in responding to a disgruntled former client’s “disparaging public comments” made online, after the lawyer’s representation ended: (more…)


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