The debate on finding the ideal balance between zealous advocacy and maintaining civility in the courtroom continued this week at the Law Society of Upper Canada discipline hearing for Toronto securities lawyer Joe Groia.

Joe Groia

“A person who is in the position of the accused may be friendless,”  said University of Calgary law professor Alice Woolley at the hearing. “Their lawyer is the only person who will stand by them when nobody else will.”

Woolley, who has published on the issue of civility — including a paper entitled “Does Civility Matter,” — was called by Groia’s counsel to testify on his behalf. Groia’s conduct in his defence of former Bre-X vice-chairman John Felderhof is currently under review.

Woolley told the three-member LSUC panel the different interests she believes the defence and prosecution represent at trial. “The defence acts for the accused, who has a personal amount at stake,” she said. “The prosecutor acts for no particular interest other than a result that is procedurally fair — there are more cards stacked in their deck than the defence.”

While she believes lawyers must be bound by some standards of legality, Woolley said an accused requires a zealous advocate to ensure the prosecution abides by their responsibilities.

“There have been a number of historical cases where those Crown duties have not been fulfilled and there has not been a miscarriage of justice,” Woolley said.

After a six-day break in proceedings, Groia’s counsel had criminal defence lawyer Brian Greenspan testify on his behalf this morning. Greenspan, a partner with Greenspan Humphrey Lavine, was called by Groia to assist in the Felderhof case when the Ontario Securities Commission made an application to remove Ontario Superior Court Justice Peter Hryn from the trial. “The OSC made an application for the loss of jurisdiction of Justice Hryn to continue with the trial based on various failures to rule on motions and control the proceedings before him,” he said.

According to Greenspan, while Groia’s conduct during the trial was highlighted in the OSC’s 643-page factum, his focus was to ensure the Felderhof trial resumed in front of Hryn as expediently as possible. “Although we were somewhat responsive to the [allegations of misconduct], we didn’t view it as being a trial of that issue or want to make allegations of inappropriate conduct against the OSC,” Greenspan said. “Mr. Felderhof’s view and position was . . . to keep this trial going to its conclusion,” he added.

Greenspan said ultimately the approach he and Groia took was vindicated, as justice Archie Campbell dismissed the OSC’s allegations, allowing Hryn to continue presiding over the trial.

Regarding Campbell’s comments on Groia’s behaviour — which included that he engaged in “guerilla theatre” — Greenspan said they must be taken in context. “With respect to justice Campbell . . . these comments fit in with an entire section, which noted that it had been a ‘difficult and hard fought trial’,’” Greenspan said.

Update: While cross examining Greenspan, Tom Curry, a partner with Lenczner Slaght LLP, went through in detail the statements Court of Appeal Justice Marc Rosenberg made regarding Groia’s conduct during the trial.

For example, he noted Rosenberg’s statement that, “Mr. Groia’s obligation to advance his client’s case did not give him the right to continue to make claims of professional misconduct and abuse of process that had no substance and before he was prepared to fully argue the issues.”

In response to these statements, Greenspan said he believes they were made in the context of how Rosenberg would have wanted the trial to be heard, adding that defence counsel will often take their lead from the trial judge.

“The way I perceive this, Mr. Groia was make repeated accusations, and they were to some extent finding a receptive judge who was increasingly of the view that the Crown were misconducting,” he said.

“If a judge is letting me do something … and I think I have a receptive judge to the argument, it’s pretty hard to put the brakes on and say ‘I’m not going to pursue that argument because some people may see it as unseemly.’”

Greenspan was also adamant that despite the lengthy process of the trial and critique of Groia’s conduct during its first 70 days, he was vindicated by the result.

“The first 70 days as I see it were part of what led to Mr. Felderhof’s acquittal . . . that’s the ultimate vindication of those days.”

The hearing continues Friday with testimony from Stanley Fisher, counsel at Heenan Blaikie LLP.

For more on the Groia case, read these articles: OSC sought conviction at all costs: Groia; Groia defends 'forceful advocacy’; Hearing will send a chill: Groia

Toronto area law firm Heydary Hamilton PC has reached the end of the line in its squabble with former clients and their new law firm after being dropped despite an existing retainer agreement.

In 2010, Heydary Hamilton Professional Corp. v. Hanuka, went to the Ontario Court of Appeal, which ruled in favour of the clients. The Supreme Court of Canada today announced that it would not hear a further appeal of the case.

According to the appeal court judgment, Heydary Hamilton was retained on a contingency fee basis to act for Thakar Baweja, Rajiv Baweja, and 6369162 Canada Inc. for representation in a dispute between the former clients and their franchisor. In October 2007, the firm issued a statement of claim on behalf of the former clients against the franchisor, and continued to work on the file for about two years.

In September 2009, the Bawejas told the law firm to renegotiate their sublease. The firm responded by indicating that this work was beyond the scope of the existing retainer, and offered to enter a further retainer to complete the work.

The following month, the firm began settlement negotiations with lawyers for the former clients’ franchisor. On Nov. 6, 2009, the firm received a copy of a letter written by lawyers from Davis Moldaver LLP to the franchisor’s lawyers regarding the sublease. Two days later, the former clients e-mailed Heydary Hamilton for information on the fees and disbursements incurred and a copy of its dockets. The Baweja’s failed to respond to Heydary Hamilton’s inquiries regarding their intentions.

Heydary Hamilton went on to sue the Bawejas over an unpaid bill of more than $60,000. Davis Moldaver and lawyer Ben Hanuka were also named as defendants. Heydary Hamilton sought damages for conspiracy, inducing breach of contract and unlawful interference with economic interests, and unjust enrichment.

Superior Court Justice James Spence quickly struck the claim, saying it couldn’t succeed due to clear case law backing the right of a client to release a lawyer. Court of Appeal justices Janet Simmons, Eleanore Cronk, and Jean MacFarland agreed. “Although it may be generally desirable that successor law firms co-operate in protecting a predecessor law firm’s account, to hold that a successor law firm’s failure to make arrangements to do so, standing alone, could found a cause of action would trench on a client’s unfettered right to change counsel,” they wrote.

Hanuka told Law Times in January that he was surprised when he was named in the statement of claim from Heydary Hamilton. “It struck me as bizarre, because we simply got a client who was not happy,” he said. “The allegations in the claim were extreme.”

Douglas Elliott, a partner at Roy Elliott O’Connor LLP who represented Heydary Hamilton on the appeal, told the newspaper the court could have used the case to set clear guidelines for firms that poach clients on contingency fee retainers. He suggested that Ontario’s law relating to contingency fees is outdated. “It’s true clients have a right to choose their lawyer, but at a certain point, the court is going to have to step in and offer some protection to the economic interests of law firms who take on these contingency fee arrangements or it’ll be the Wild West out there,” said Elliott.

Canada

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Just one day after federal Justice Minister Rob Nicholson said filling vacancies at the Supreme Court of Canada is the government’s top priority, the Federal Court’s chief justice announced he will step down on Sept. 30.

However, he’s not leaving the court entirely. He will stay on as a supernumerary judge.

Chief Justice Allan Lutfy is one of a number of senior judges who have recently announced their departure. SCC justices Ian Binnie, 72, and Louise Charron, 60, retire from the top court at the end of this month, as does Quebec Court of Appeal Chief Justice J.J. Michel Robert.

The 67-year-old Lutfy has sat on the Federal Court’s bench since 1996. He served as the court’s associate chief justice for three years and was appointed its chief on July 2, 2003. He has presided over high-profile cases including the deportations of alleged Nazi war criminal Serge Kisluk and terrorism suspect Mohamed Harkat.

He received his law degree from McGill University in 1967. Before his appointment to the bench, he worked in civil litigation and administrative law in Quebec and Ontario. He also acted as counsel for several commissions of inquiry into national security, the state of competition in the petroleum industry, and drug use in sports. He was counsel to the Security Intelligence Review Committee and the Canadian Parliamentary Press Gallery.

Lutfy has also worked as a political adviser, serving as an aide to prime minister Pierre Trudeau and assisting incoming prime minister Jean Chrétien with analyzing potential cabinet ministers.

This latest move will give Stephen Harper’s government even more influence over Canada’s judiciary as it prepares to find replacements for these vacancies.

Hundreds of lawyers, judges, and others with a great interest in the legal profession attended the annual legal conference in Halifax from Aug. 14 to 16 that included the annual meetings of the Candian Bar Association and Canadian Corporate Counsel Association's annual meetings as well the judge's day conference. During the day attendees participated in a host of meetings, professional development sessions, a bearpit session with Justice Minister Rob Nicholson and speeches from the likes of Arianna Huffington and Dragon's Den judge Arlene Dickinson.

But where Halifax really shone was after the official business of the day was done. Legal Feeds attended receptions hosted by law firms Wickwire Holm, Burchells LLP, Blois Nickerson & Bryson LLP, Cox & Palmer, McInnes Cooper, Stewart McKelvey, and Boyne Clarke LLP. All had great seafood impressing party goers with barbecued lobster, sauteed shrimp, filet of beef, fish and chips right from the truck, pan-fried scallops and more. Not to be outdone by the law firms, the chief justices and judges of Nova Scotia also hosted a bash serving up some fine lobster stew. It's safe to say, a good time was had by all.

All photos by Gail J. Cohen.

Canada

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United States

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International

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Elisabeth Preston, CLO of Allen Vanguard Corp., says more CLOs are being paid on par with CFOs. Photo: Jennifer Brown

When it comes to compensation for chief legal counsel, some, such as Elisabeth Preston, CLO of Allen Vanguard Corp., suggested there is a growing trend of CLOs being paid on par with the chief financial officer.

“Part of the whole plan of being seen to be an equal around the executive table has a lot to do with pay and how you’re respected,” said Preston during a panel at the Canadian Corporate Counsel Association meeting, held in conjunction with the Canadian Bar Association annual meeting in Halifax this week.

“I have found in different companies and in talking to friends in similar positions that we all care about being paid the same as the CFO. The CFO in a public company is ‘the man’ and paid well. I think the chief legal officers really care about being seen as the other right-hand man to the CEO, which is the CFO. I think legal used to report to the CFO but I don’t think that happens as much anymore.”

However, Robert Hanf, CLO with Halifax-based energy company Emera Ltd., pointed out there are compliance responsibilities they must answer to such as Sarbanes Oxley that come with being CFO and CEO that do not apply to chief legal counsel.

“I would have a different view on worrying about whether you’re paid as much as the CFO or CEO. If you want to be paid as much as them then become a CFO or CEO,” said Hanf who has held the role of CEO in the past and has both given legal advice and received it.

“I can tell you it’s quite different. I think it’s fantastic if you can serve in a non-legal role for a period of time. It will change the quality of the service you deliver,” he said. “We talk about understanding the business, well, you will understand it if you are in it.”

If they want to expand their sphere of influence, make themselves more valuable, and make more money, in-house counsel need to approach their work more like business people and a little less like lawyers.

The panelists also discussed the ways they have become business partners and influencers in their organizations.

Hanf said there are 19 lawyers in the various Emera companies around the world and most of the lawyers are “embedded” in each of the business units. There is not a central legal services function.

“I’m not saying there is an optimum structure for success but not knowing what your structure should be would lead to failure,” said Hanf. “Focus on the strategy of the business as opposed to just delivering legal services.”

The president of each Emera business unit determines the goals for the in-house counsel in conjunction with Hanf. The employee has a balanced scorecard used to measure their success and development. Hanf and the president of the unit determine the goals for that person for the year. Their compensation is tied to those goals.

“I determine 50 per cent of whatever that person’s bonus is and the business unit leader determines the other half,” says Hanf. “People tend to pay attention to the process.”

There is also a “performance map” created for each lawyer that evaluates a number of factors including how they focus on the customer, how they work as a team player, achieve results, build relationships internally and externally, and what their commitment is to the success of the company.

“It may seem odd, but it’s tremendously important for alignment of the person’s goals and the company’s goals,” he said.

Canada

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United States

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International

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Changing demographics, increasingly vocal retirees, and the prospect of more companies finding themselves in trouble have all combined to create more interest than ever in pension law, a leading practitioner said this morning. “I have often marvelled myself at the interest in pension law,” Andrew Hatnay of Toronto’s Koskie Minsky LLP said at the Canadian Bar Association conference in Halifax.

It’s no surprise, then, that there’s been so much discussion around the Ontario Court of Appeal’s decision in Re: Indalex Ltd., a case Hatnay was involved in and spoke about during a session on disputes over underfunded pension plans. “It’s a great decision,” said Hatnay, who represented employees in a matter that resulted in the company, Indalex Ltd., having to set aside $3.2 million for members of the executive pension plan during Companies’ Creditors Arrangement Act proceedings. “Of course, I’m biased,” he added.

Hatnay noted in Indalex, the appeal court considered the questions of whether the company had breached its fiduciary duty and whether there was a deemed trust in a situation where it had essentially abandoned its pension plan. The issue has been a murky area of law, he said, given that while the Ontario Pension Benefits Act applies a deemed trust to pension plans, the provision has been given ineffective treatment over the years. At the same time, the Supreme Court of Canada has said that provincial deemed trusts don’t apply in a bankruptcy. But in Indalex, the employees argued they do stand during CCAA proceedings.

As Hatnay pointed out, however, there are outstanding leave applications to the SCC related to Indalex. He said he expects a decision on leave issue this fall.

Natalie Bussière of Blake Cassels & Graydon LLP said during the session there needs to be an acknowledgment that there will be benefit cuts when companies go bankrupt. “In order to have pension plans, you need to have employers,” she said, expressing concerns that decisions like Indalex create added risk for employers when dealing with pension plans.

“Where do we strike that balance? Of course, the courts will answer that.”

Canada

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United States

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International

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