Commentary

Monday, 06 February 2012 08:00

A turning point

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A few years ago, one of the biggest issues law firms were dealing with was associate retention. Well, you won’t hear anyone talking about that anymore. Now, the topic on everyone’s lips is articling. There have been rumblings about it for years; in 2008 the Law Society of Upper Canada looked at the future of articling, reports were written, nothing much happened. The status quo continues to this day. However, in December the LSUC put out a 134-page consultation report again looking at the future of articling.
It offers up five ways to deal with the current crisis: maintaining the status quo; the status quo with quality assurance improvements; the replacement of a pre-licensing transition requirement with a post-licensing transition requirement; a choice of either articling or a practical legal training course; or only a practical legal training course.
The law society is in the midst of consultations with the profession on which option is the best to move forward (you have until March 15 to submit your thoughts to the LSUC or attend one of the consultation meetings). From attending a recent consultation, one would get the impression the society already has made up its mind on what’s best: the combo of articling and a practical legal training course. While on first glance that may seem like a good idea, I think in the long run, it probably won’t be.
Firstly, it will mean that in terms of bureaucracy, the LSUC will have to run two systems to monitor both streams. I think we can all agree that is not what the LSUC needs. Secondly, how will there be equality between a training course and articling? And even if that gets worked out, will a young lawyer who has taken the course instead of articling be treated the same by prospective employers? Will there be inherent biases creating roadblocks to success for lawyers who take the course? All I can foresee is problems and inequity in that approach. It apparently works in parts of Australia, but I say choose one or the other.
The reality is that there are articling position shortages, not just in Ontario but in other provinces as well. Although from what I hear, Saskatchewan firms are thriving and looking for articling students. It would seem that the option of maintaining articles as they are or with some extra checks and balances wouldn’t work. The idea of a course, likely costing prospective lawyers more money on top of their law school and other student loan debt, may work. But what you don’t see is the U.S.-style option of letting students write bar exams and then go out into the world as licensed lawyers to either find employment or start their own firms.
Personally, I think there is great value in articling but the system is broken. We’ll see in a few months, how the LSUC thinks it’s going to fix it. This is undoubtedly a turning point in the future of the profession.
A few years ago, one of the biggest issues law firms were dealing with was associate retention. Well, you won’t hear anyone talking about that anymore. Now, the topic on everyone’s lips is articling. There have been rumblings about it for years; in 2008 the Law Society of Upper Canada looked at the future of articling, reports were written, nothing much happened. The status quo continues to this day. However, in December the LSUC put out a 134-page consultation report again looking at the future of articling.
Tuesday, 03 January 2012 09:22

Conflict case a circus

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It took the U.S. legal system 15 weeks to convict Conrad Black of fraud charges, the majority of which were overturned by the U.S. Supreme Court. It will take the Law Society of Upper Canada almost two years to decide whether or not Black’s lawyers, Beth DeMerchant and Darren Sukonick of Torys LLP, were in a conflict of interest when they advised him and his companies on the non-compete agreements at the centre of his criminal charges.
It’s a sign of stunning ineptitude that the LSUC can’t prosecute lawyers in a timely fashion. It informed them in January 2006 that they were under investigation for actions dating back to 2000. A discipline hearing, which started as an important test of the law society’s conflict rules, has become a prosecutorial folly.
What many thought should have been a slam-dunk for outside prosecutor Paul Stern has turned into a shambles, which should leave benchers shaking their heads and asking hard questions.
Even Black in his book, A Matter of Principle, questions the law society. In a fascinating, inside look at the U.S. justice system through the eyes of an accused, he writes of the now-retired DeMerchant, a former Torys partner, and Sukonick, who was an associate at the time: “I was never overly impressed with their imagination, and some of their advice was incorrect, but I don’t think they were unethical or negligent. The singling out of them, as well as the Law Society’s rather banal allegations, seems to me to be shabby and tokenistic placation of opinion by the Toronto legal establishment, at the expense of two relatively defenceless scapegoats.” (Black’s book provides a candid opinion of lawyers and personalities he dealt with in his career and legal tribulations.)
The Torys lawyers are charged with six counts of failing to adequately disclose their conflicts of interest and obtain consent of their clients in breach of Rule 2.04 of the Rules of Professional Conduct. The discipline hearings started badly for the LSUC in 2009; 168 boxes of materials were unearthed that hadn’t been disclosed by Torys, prompting an adjournment.
It has been downhill since. A major law society witness about conflicts — lawyer Gar Emerson — was kicked off the case because of a conflict. Another witness withdrew after it was determined he was not qualified to provide expert testimony on the matters in question.
There was also an earlier attempt by LSUC counsel to take the hearing in camera, much to the chagrin of the discipline panel and defence lawyers Phil Campbell and Ian Smith. That turned into a needless sideshow over public access to the hearings and if companies involved had waived their privilege, even though much of the material had been publicly disclosed in court documents.
The panel sat for one day in 2009, 31 days in 2010, and 35 days in 2011 (at press time). Despite that, and 16 days of DeMerchant cross-examination, they are only through a couple of the charges. Another seven days of hearings were expected in 2011 and 24 days are set for 2012.
Compounding matters, one of the panelists hearing the complaint, Paul Henderson, was appointed to the bench.
LSUC spokeswoman Susan Tonkin says, “a number of factors can affect the length of a hearing, including the complexity of the proceeding, volume of materials, number of witnesses, number of motions, and, occasionally, unforeseen events.” Law society officials wouldn’t disclose the cost of the prosecution. A six-year case wouldn’t come cheap and if the LSUC loses, the fees will easily reach millions of dollars when defence costs are added in. Then there are the likely appeals.
Yet, if convicted, it’s unlikely the lawyers would be disbarred. They’re not accused of misappropriating funds. Rather, a suspension would likely be in order. Any victory at this stage would be Pyrrhic at best.
Sadly, Sukonick will almost spend more time fighting these charges than he has practising law and his career has been, if not destroyed, then certainly waylaid.
There’s a strong feeling on the street that DeMerchant, who earned as much as $900,000 annually, should have fallen on her sword and saved her junior by pleading guilty, taking her lumps, and moving on. The handling of this case, combined with the persecution of Joe Groia for his comments towards the prosecutor in the Bre-X/Felderhof case, has shaken the confidence of many lawyers when it comes to the law society’s judgment involving prosecutorial decisions affecting members.
The profession desperately needs guidance when it comes to matters of conflict of interest and commercial deals. The LSUC should draft new rules; there’s a good chance they would pass before this prosecution ends. This test case had the potential to clear the air. But it has become a circus — much like the Groia affair.
Jim Middlemiss is an Ontario lawyer and co-owner of WebNews Management Corp. You can reach him by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it.
It took the U.S. legal system 15 weeks to convict Conrad Black of fraud charges, the majority of which were overturned by the U.S. Supreme Court. It will take the Law Society of Upper Canada almost two years to decide whether or not Black’s lawyers, Beth DeMerchant and Darren Sukonick of Torys LLP, were in a conflict of interest when they advised him and his companies on the non-compete agreements at the centre of his criminal charges.
Tuesday, 03 January 2012 09:18

Good things ahead for 2012

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With this January 2012 issue of Canadian Lawyer, we kick off our 36th year of covering the issues and trends that matter to the legal profession in Canada. And we have seen a lot of changes, particularly in the last few years. One of the biggest shifts has been the arrival of global law practices on our shores. This month, Macleod Dixon LLP will be folded into the Norton Rose Group, which rocked the Canadian legal establishment last year when it merged with Ogilvy Renault LLP. The face of law practice is changing here and so this year, we have launched a new series on canadianlawyermag.com called the Managing Partner Forum, in which law firm leaders from across the country and all types of firms will discuss the hurdles, successes, and other travails of making it work in today’s market. We launch the series this month with a column from John Coleman, who helmed Ogilvy Renault through its initial merger as well as the marriage with Macleod Dixon to form the new Norton Rose Canada. I look forward to the columns creating some interesting discussions in the profession.
As well, we’ve got a host of new online columnists coming on board for 2012 at canadianlawyermag.com. We welcome Kirk Baert, who will be penning a monthly missive on the state of class action litigation — and not wanting to have it too plaintiff-side heavy, he will be bringing on some guest columnists from the defence side. And one of the things I’ve heard most in my travels is that newly minted lawyers feel a lot less sure of themselves and their futures than they once did and there’s not a lot of information out there to help them along in their careers. So we are launching two new online columns specifically aimed at young lawyers. One is The Accidental Mentor, in which Ontario Bar Association past president Lee Akazaki does his best Dear Abby impression and answers queries of all types from junior associates looking for some guidance. And from the trenches, we have first-year associate Lindsay Scott, who will be sharing the hard lessons she’s learned on the job.
I am also happy to be starting 2012 with our latest Top 10 lists of legal boutiques. Labour and employment and intellectual property boutiques are some of the most prominent in the legal field and it’s always a good competition. Check out this year’s list starting on page 33. As always, I look forward to hearing reader feedback on anything we are doing and anything you think we should be doing. Have a great year.
With this January 2012 issue of Canadian Lawyer, we kick off our 36th year of covering the issues and trends that matter to the legal profession in Canada. And we have seen a lot of changes, particularly in the last few years. One of the biggest shifts has been the arrival of global law practices on our shores. This month, Macleod Dixon LLP will be folded into the Norton Rose Group, which rocked the Canadian legal establishment last year when it merged with Ogilvy Renault LLP. The face of law practice is changing here and so this year, we have launched a new series on canadianlawyermag.com called the Managing Partner Forum, in which law firm leaders from across the country and all types of firms will discuss the hurdles, successes, and other travails of making it work in today’s market. We launch the series this month with a column from John Coleman, who helmed Ogilvy Renault through its initial merger as well as the marriage with Macleod Dixon to form the new Norton Rose Canada. I look forward to the columns creating some interesting discussions in the profession.
Monday, 14 November 2011 08:00

Expect a strong and growing law-and-order bias

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Illustration: Matt Daley
Illustration: Matt Daley
Michael Moldaver and Andromache Karakatsanis are our new Supreme Court judges. They replace justices Ian Binnie and Louise Charron, who in May both announced their resignation. (It sure takes a long time to fill a Supreme Court vacancy.) Will this change in the court’s composition have much effect on criminal law?
Monday, 14 November 2011 08:00

More work for in-house departments

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Once again in this issue, we share the results of the annual Canadian Lawyer corporate counsel survey, which gauges the relationship between in-house counsel and their outside legal service providers. It’s not surprising that one of our main findings is that the economy, and its current state of instability, is having an effect on corporate law departments.
Monday, 03 October 2011 09:00

My election wish list

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2011_October_jim_middlemiss2011.jpgWith five provinces scheduled to go to the polls in 2011 and three more expected to go next year, it’s a good time for the legal community to be advancing its election wish list.
Sunday, 02 October 2011 08:45

Don't get left behind

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In September, the Competition Bureau released a post-study assessment to its 2007 report that looked at restrictions impeding competition in five professions, including the law. The profession had been on tenterhooks as to what the assessment would say and how it would affect the regulation, in particular, of the profession across the country.
Monday, 05 September 2011 09:00

Reflections on a changed world

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This month’s cover story, “A decade on,” examines the state of anti-terrorism laws in Canada over the decade since the Sept. 11, 2001 attacks in the United States. These efforts have two difficult issues to surmount, and they are the same ones faced by many countries, including the U.S.: how to heighten security while balancing individual rights and freedoms, and how to fight a “war” on terror that’s often beyond national borders and doesn’t involve a state player. Not an easy task for any government.
Monday, 05 September 2011 09:00

Too much secrecy

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Illustration: Scott Page
Illustration: Scott Page
My mother used to chastise me as a teenager when I got cocky, warning me never to get too big for my britches. Basically, it was an ego check. She was reminding me not to be conceited and show an exaggerated sense of my own importance.
Illustration: Todd Julie
Illustration: Todd Julie
Starting a legal career is daunting, whether you begin as a big-firm associate, member of a small partnership, solo practitioner, government lawyer, or in-house counsel; whether you start out on Bay Street, in the burbs, or on a country road.
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