Legal Feeds Blog
The Ontario Divisional Court has refused to allow the appeal of a disbarred Toronto lawyer who was found to have “churned” a family law file.
Lawyer Roderick Byrnes, who had previous professional misconduct convictions, should have warned his client about the “mounting costs” he was incurring while pursuing matters like divvying up household chattels and his preference to not have his spouse smoke in front of their children, Justice Janet Wilson ruled for the Divisional Court panel.
Byrnes received virtually all of his client’s share of proceeds from the sale of a matrimonial home to pay his account. Later, an assessment officer put the value of Byrnes’ work at zero and ordered him to return the funds to his client in addition to the cost of the assessment proceedings. With costs against him set at $48,586, Byrnes owed a total of $77,400 to his client. But the lawyer soon claimed bankruptcy and the client received nothing.
“The core criticism of Mr. Byrnes’ conduct is spending excessive amounts of time on matters that the client had no ability to pay for without adequate advice, information and direction from Mr. Byrnes,” Wilson wrote.
Even if his client wanted him to keep working on issues like the separation of household items — an issue that took 30 hours of work — Byrnes ought to have warned him about taking this “unwise course,” the court said.
There is no evidence that there were any discussions warning the client as to the mounting costs and that, notwithstanding the client’s desire to pursue the issue of division of chattels and the question of smoking in front of the children, that he risked losing his sole asset if he chose to pursue this unwise course.”
The term “churning,” — to deliberately charge fees that are not justified — is also used in the context of stockbrokers who trade clients’ shares not for sound investment reasons but solely to generate commission, explains Gavin MacKenzie, a lawyer at DLA Piper LLP.
The court’s references to the lawyer’s failure to warn his client are related to the finding of churning, says MacKenzie.
“A lawyer can’t charge a client of modest means large fees for spending time on issues such as these without warning the client how much it costs to do so, especially where, as here, the result is that the client’s share of the proceeds of sale of the matrimonial home, on which he is depending, are consumed by legal fees,” he adds.
Byrnes was ordered to pay $7,500 in costs for the appeal. His lawyer George Florea did not immediately respond to a request for comments.
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Lu Chan Khuong, the suspended bâtonnière at the Barreau du Quebec, has come out swinging against new reports over the weekend relating to an incident last year in which she is alleged to have shoplifted two pairs of high-priced jeans.
|Suspended Quebec bâtonnière Lu Chan Khuong has come out swinging against new reports over an alleged shoplifting incident.|
The incident occurred on April 17, 2014, in a Simons clothing outlet in a Laval, Que., shopping mall. As Khuong left the store, security guards confronted her and asked her to step into their office. Khuong was found with two pairs of jeans worth approximately $455.
In the leaked declaration, which was published by La Presse, Khuong explains that she had been distracted by a phone call that occurred while she was cashing out. Moreover, Khuong argues she personally knows the owner of the retailer, Peter Simons, and would never have shoplifted from one of his outlets.
[Translated:] “If I had intended to steal something,” she writes, “I wouldn’t have robbed the business of one of my friends. This is all a result of a momentary distraction. I know Peter Simons. . . . I have dinner with him and he has dinner with us.”
Nearly a year after the incident, and soon after Khuong’s election on May 22 as bâtonnière, media reports began to surface about the incident. Khuong attempted to explain her decision to accept a non-judicial outcome in an interview with La Presse in which she is quoted as saying that she didn’t want to attract media attention or “waste time in the courts.”
The growing scandal, followed by Khuong’s off-the-cuff remarks, led the Barreau’s board of directors, in early July, to call a special meeting in which Khuong was suspended from her position.
Some observers have cited political motivations for the decision, given statements Khuong has made about wasteful spending at the Barreau. Khuong’s lawyer issued a formal notice immediately after the decision, demanding it be rescinded. The board has defended its position, arguing the position of bâtonnière must be beyond reproach.
Responding to the most recent spate of reports, Khuong has demanded Quebec Justice Minister Stéphanie Vallée call a public inquiry to investigate the leak of confidential documents from her office. On Sunday, she also threatened legal action against La Presse, accusing it of violating her privacy and defaming her.
Khuong’s lawyer, Jean-François Bertrand, issued a public letter to the newspaper on Sunday demanding it issue a retraction and apologize for reports that, he says, are based on illegally obtained information and suggest criminal intent for what Khuong insists was an accident.
[Translated:] “This ‘authenticated statement’ — obtained and disseminated illegally — establishes without a doubt that the incident was a simple mistake and that there was never any intention to commit a theft. . . . There is no way that any serious and well-intentioned journalist could fail to see this.”
Neither Khuong nor her lawyer could be reached by Legal Feeds for comment.
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CALGARY — Mentoring is among the priorities as Ridout & Maybee LLP partner Janet Fuhrer takes over the presidency of the Canadian Bar Association.
|Janet Fuhrer took the chain of office yesterday from outgoing Canadian Bar Association president Michele Hollins. (Photo: Glenn Kauth)|
Besides emphasizing the CBA’s role in creating mentoring opportunities, Fuhrer also noted she’d be focusing on the advancement and retention of women in the legal profession and bolstering lawyers’ relationships with clients. Her priorities, she said, include practice fulfillment, competence, and livelihood as lawyers face what she called a “sea change” in the practice of law.
“Change can be very good but it can also be disruptive,” she said, suggesting she wants the CBA to play a key role in helping lawyers meet the challenges through the association’s Legal Futures, Equal Justice, and Rethink efforts.
Ottawa-based Fuhrer took over the presidency at the end of a CBA conference in Calgary that focused on innovation and how lawyers could meet the challenges putting pressure on existing business models.
Other leadership changes taking effect this week include the passing of the presidency of the Canadian Corporate Counsel Association to Frédéric Pérodeau of Montreal. Pérodeau, senior director of investigation at a Quebec financial markets regulator, the Autorité de marchés financiers, takes over the role from Heather Innes. His priorities include inclusivity and cohesion within the in-house counsel community.
At the Ontario Bar Association, the new president is Brampton, Ont., lawyer Edwin Upenieks. A certified specialist in civil litigation, he practises at Lawrence Lawrence Stevenson LLP, where his areas of practice include corporate and commercial litigation, real estate matters, expropriations, and partnership and shareholder disputes. He takes over the OBA role from Orlando Da Silva, a lawyer who made his mark over the last year with his focus on mental health in the legal profession.
The Supreme Court of Canada has announced the appointment of a new executive legal officer. Joining the court for a new two-year term is Gib van Ert, a Vancouver lawyer at Hunter Litigation Chambers.
|Gib van Ert of Vancouver will serve as the SCC's executive legal officer for two years.|
Van Ert clerked for the Supreme Court in 2003, under former justices Charles Gonthier and Morris Fish, before being called to the bar in 2004. He is a civil litigator at Hunter Litigation and well-known for his writing on international and constitutional law. (He’s also written a well-received personal memoir on his boyhood fascination with Star Wars.)
“It is an honour to have been appointed and I look forward to starting work,” van Ert told Legal Feeds in a short message.
In a written statement [http://scc-csc.lexum.com/scc-csc/news/en/item/4969/index.do], Chief Justice Beverley McLachlin thanked Rees for his public service.
“Mr. Rees has provided invaluable assistance and advice during his tenure at the Court, for which I am very grateful,” McLachlin said.
McLachlin also welcomed the new ELO, who will travel to Ottawa for meetings this month before formally beginning his term at the end of September.
“Mr. van Ert brings to the position a broad range of experience and talents as legal counsel and as a distinguished scholar, which will serve the court well in the coming years.”
The ELO position is a mainly administrative but pivotal position. It involves assisting the chief justice with the day-to-day management of the court, handling interactions with the Canadian Judicial Council and National Judicial Institute, as well as briefing the media on the court’s judgments.
Candidates, typically mid-career lawyers drawn from private practice or academia, are offered the rare chance to spend a couple of years interacting with the top legal minds in the country. Former ELOs who’ve risen to prominence include McGill Law dean Daniel Jutras, justices Robert Sharpe and James McPherson at the Ontario Court of Appeal, as well as current SCC Justice Thomas Cromwell.
On the phone with Legal Feeds, Rees declined to comment on his term as ELO or the new appointment, noting that “the ELO is there to serve the court, and not to publicize himself or promote himself.”
That being said, Rees did express gratitude for the opportunity: “It’s been a tremendous honour and privilege serving the Chief and the court, and I’ve enjoyed every minute of it. The three years have been endlessly interesting and challenging and enjoyable. That’s really all I can say.”
Rees, who will be returning to his civil litigation practice at Stockwoods in Toronto, had worked for the Supreme Court previously. Following his call to the bar in 2003, he clerked for former justice Louis LeBel.
He followed that up by co-founding and, until 2011, serving as executive director of the Supreme Court Advocacy Institute, which provides advice to lawyers scheduled to appear before the SCC.
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CALGARY — As the Canadian Bar Association conference got underway this morning, Chief Justice Beverley McLachlin opened with a keynote speech emphasizing the need to balance the pressing need to change the delivery of legal services with lawyers’ professional obligations.
|‘If we are unable to revise ourselves, then we risk irrelevance,’ said incoming CBA president Janet Fuhrer.|
While McLachlin emphasized the need to protect core values, she made clear that resisting change isn’t an option.
“We’re part of it, and there’s no escape,” she said, referring to the technological changes making legal information available in other ways and players such as LegalZoom that are growing rapidly.
In her speech, McLachlin focused on the major challenges facing the legal profession while outlining what she sees as new opportunities that provide some optimism for different ways of doing business, particularly for “nimble, tech-savvy lawyers.”
“Legal systems everywhere are experience an access-to-justice crisis and are responding in different ways,” she said, suggesting Canada has done a good job of trying to address the issues by looking for ways to make legal services more accessible.
Efficiency and affordability, she added, will be key.
“The time-honoured legal phrase ‘with due deliberation’ has no place in the new world in which we live and practise,” she said.
She went on to suggest lawyers will also have to consider a loosening of their dominance over the delivery of legal services to make room for other, cheaper offerings.
“In the age of the Internet, people are questioning why they, the consumers of legal product, should be forced to go to expensive lawyers working in expensive office buildings located in expensive urban centres. Why, they ask, should a client retain lawyers, when integrated professional firms can deliver accounting, financial and legal advice?” she said.
“The old assumptions are being questioned,” she added, noting the question isn’t whether there will be liberalization but how it will happen.
“We must not close our mind to the changes that are being increasingly forced on us.”
McLachlin spoke in Calgary as the CBA conference got underway with a significant focus on how lawyers with a focus on innovation and “building a better lawyer.” Sessions at the conference will cover topics such as innovation and the future of law firms as well as the role of things like bitcoin, Google Glass, and three-dimensional printing in the practice of law.
In her speech this morning, outgoing CBA president Michele Hollins touted the CBA’s role in helping lawyers adapt to the changes.
“It’s a great time to be talking about innovation in the legal profession but it’s an even better time to be leading that conversation,” she said.
The comments come as the CBA itself faces significant change as it considers its Rethink process aimed at reinvigorating the organization to make it more relevant to lawyers. It was a theme incoming president Janet Fuhrer emphasized in her remarks to the CBA council yesterday.
“Every aspect of what we do is on the table and under the microscope,” said Fuhrer, who called on lawyers to embrace the CBA’s Legal Futures, Equal Justice, and Rethink efforts underway. “If we are unable to revise ourselves, then we risk irrelevance.”
Despite those challenges, Hollins noted the CBA has continued to play a significant role.
“We have tackled issues in every corner of the law,” she said, citing the association’s significant submissions on Bill C-51. And with a federal election underway, she said, it would be playing a role in trying to raise the access-to-justice issues it has been focusing on during the campaign.
To that end, she announced a new Twitter hashtag, #whataboutalex, aimed at discussing Canadians’ experiences in the justice system and the challenges they face.
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