Monthly Archives: October 2012

Articling Debate and the Future of the Legal Profession: Watch and Participate Live on October 25, 2012, at 9:30 pm

Posted in: "All, In the News, Lawyer Talk by Pei Wang | No Comments Wednesday, October 24, 2012

Currently, anyone who wishes to become a lawyer in Ontario must both pass the bar exam and complete a 10-month articling program.

Alas, as the economy has been in the gutters for the past decade, positions for articling students have become scarce. Many law school graduates have been forced to give up their dreams of becoming lawyers simply because they could not find articling positions.

In 2011 the Law Society of Upper Canada recognized the difficulties that students face in securing articling positions and established the Articling Task Force. The final report by the Task Force has now been released and will be debated at Convocation tomorrow, October 25, 2012, at 9:30.

In the interests of the legal profession, as well as the general public, the Convocation on October 25, 2012, will be broadcast live. The debate will be hosted at  http://live.lawsocietygazette.ca/. You can comment directly on that page. (To comment on others’ comments, you’ll have to sign in with a social media account.)

In addition to the comments on the web page, several lawyers and legal commentators will be monitoring the debate and tweeting live comments under the hashtag of #articling. Please feel free to join the panelists and contribute to the debate.

Collaborative Family Law Series: The Team Approach

Posted in: "All, Collaborative Practice, Family Law, Lawyer Talk by Pei Wang | No Comments Wednesday, October 24, 2012

The team approach helps you stay focused on the big picture. (Photo courtesy of SXC; all rights reserved.)

Collaborative family law is an alternative means of settling legal disputes between spouses. In the collaborative approach, the two spouses agree not to take their case to court. Instead they commit to settling their differences with the help of a team of professionals. Collaborative family law can work with just the two lawyers, each representing their own client, or it can involve a broader team approach. As I have now had a few successful cases using collaborative teams, today I’d like to share with readers what the team approach is all about.

The collaborative team usually consists of the two lawyers plus one neutral financial professional and one communication professional. Depending on the circumstances, an early childhood development professional may also be engaged to assist the parents in addressing the child’s needs, both present and future.

Rather than exchanging demands through the lawyers, the team approach focuses on the spouses’ interests. During the process, the financial professional can work with the individuals to draw up a financial summary for discussion.

At the same time, choosing collaborative family law doesn’t guarantee smooth sailing. Tempers may still flare, and spouses at times may escalate their differences.

The involvement of a professional trained in facilitating communications, typically a social worker or a mediator, is generally very productive. For example, if one of the spouses is particularly aggressive towards the other, the communication professional/facilitator can maintain a level playing field at the meetings and move the discussion along. Further, if the spouses and their lawyers get stuck on dollars and cents, the facilitator can reset the focus of the process to problem solving and exploring options to accommodate both spouses’ interests.

Often, clients considering the collaborative team approach are reluctant to engage with a team, citing cost concerns. In my experience, having a financial professional and a facilitator on hand actually saves money. Rather than having the lawyers compiling the financial statement or listening to the clients venting about the other spouse, a team of trained professionals will be able to deliver the required services more efficiently.

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

U.S. Court of Appeals Ruled Against Defense of Marriage Act under Heightened Scrutiny

Posted in: "All, Case Digest/Comments, In the News, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Tuesday, October 23, 2012

On October 18, 2012, the Court of Appeals for the Second Circuit in New York struck down the U.S. federal Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.*+ The panel parted ways with the prior courts by elevating the standard of review to what’s known as “heightened scrutiny.”

In U.S. constitutional jurisprudence, there are three levels of scrutiny applicable to any particular matter under the U.S. Constitution’s equal protection clause:

(1) “Rational basis” is the lowest level. All laws challenged under the equal protection clause must meet this level of review. Under this test, the law will be upheld if it’s rationally related to a legitimate purpose.

(2) “Heightened Scrutiny” is the middle tier of review. It’s also known as “intermediate scrutiny.” At this level, the law must be substantially linked to its legislative goal.

(3) “Strict Scrutiny” is the highest level of review. A law will be upheld if there is a compelling government interest narrowly tailored to the legislative goal, and the method is the least restrictive one available.

By choosing to apply the heightened scrutiny level to the case, the Court of Appeal recognized that homosexuals have suffered a history of discrimination. Thus, this class of minority is entitled to a higher level of scrutiny. Because the Defense of Marriage Act could not pass the test, ruled the court, it’s unconstitutional under the equal protection clause.

Many legal commentators suspect that the decision made by the Court of Appeal will make it more likely that the Supreme Court will take up the case.

In other words, the fight isn’t over yet. March on, counsels.

*John Schwartz, “U.S. Marriage Is Unfair to Gays, Court Panel Says,” The New York Times, (18 October 2012) online: nytimes.com <http://www.nytimes.com/2012/10/19/us/appeals-court-rules-against-defense-of-marriage-act.html?_r=0>

+Citation currently unavailable

This blog is provided for educational purposes and for your reference. I am not a licensed lawyer in the United States. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.


Current Topics in Ethics and Professionalism: Civility

Posted in: "All, Administrative Law, Case Digest/Comments, In the News, Lawyer Talk by Pei Wang | No Comments Thursday, October 18, 2012

From right to left: Gillian Stacey, Jordan Furlong, Phil Brown, and moderator Noel Semple

Yesterday I had the pleasure of attending a lively conference on ethics and professionalism in the legal profession. The event was organized jointly by the Toronto Lawyers Association and the Centre for the Legal Profession at the University of Toronto’s Faculty of Law. The program was excellent, with all panelists making valuable contributions to the profession. I would like to make a special shout-out to Phil Brown and Jordan Furlong for their insights.

What is civility? In the legal profession, it’s a duty to act honourably, fairly, courteously, and in good faith toward other lawyers and the administration of justice. This duty also includes avoiding disparaging personal remarks or uninformed criticisms of other lawyers, judges or jurors.+

The duty for lawyers to act with civility and courtesy, in accord with the long-standing legal tradition, was recently affirmed by the unanimous Supreme Court of Canada decision in Dore v. Barreau du Quebec.* In the case, the judge made insulting personal attacks against a lawyer’s competence in open court, while the lawyer returned the favour through a private letter that eventually came to light. Both of them got into trouble with their respective regulating bodies for their ill-considered remarks.

The Supreme Court recognized a lawyer’s right to criticize a judge. But at the same time, it noted, the right to express discordant remarks against the judiciary (and other members of the legal profession) is not unlimited. It’s subject to the requirement of reasonableness and, more importantly, a lawyer’s duty to act with civility.

+See, e.g., Code of Professional Conduct of the Law Society of Upper Canada and Principles of Civility for Advocates by the Advocates’ Society in Ontario

*2012 S.C.C. 12

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

B.C. Court of Appeal Launches E-Filing

Posted in: "All, In the News, Lawyer Talk by Pei Wang | No Comments Tuesday, October 16, 2012

British Columbia’s Court of Appeal formally launched electronic filing (e-filing) yesterday. According to the news release, e-filing is now available 24/7 through Court Services Online. Examples of items that may be filed electronically include notice of appeal, leave to appeal, appearance, notice of motion and affidavit, among others.

E-filing has been a pilot project in B.C.’s lower courts since 2007. With the Court of Appeal coming online, all levels of court now participate in the e-filing system.

In contrast to B.C.’s embrace of e-filing, the Ontario civil justice system has been reluctant to go online. I recall that for a brief period litigants were allowed to serve court documents via email (though filing still required personal attendance). However, service by email was scrapped shortly afterward because of security concerns.

In Ontario, to this date, even service by fax in civil and family law matters is restricted regarding length of transmission and time of day, while all filings require personal attendance either by the litigants or their process servers, adding to the cost of litigation.

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.


Unequal Division of Assets in Family Law in Ontario

Posted in: "All, Case Digest/Comments, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Thursday, October 4, 2012

The test for unequal division of assets in family law in Ontario is exceptionally high. (Photo courtesy of stock.xchng. All rights reserved.)

Toronto Family Lawyer Pei-Shing B. Wang:

In Ontario, the division of property when the marriage breaks down is called equalization. Equalization is a process where each of the spouses calculates his/her net family property following a set of rules under the Family Law Act.* At the end of the process, the spouse with less net family property is entitled to receive half the difference from the other spouse.

On rare occasions, when the court is of the opinion that equalizing the family property would be unconscionable for some reason, the court may award a spouse an amount that is larger or smaller than the equalization payment. The factors that the court must take into account are these:

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the fact that part of a spouse’s net family property consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2), or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property

The courts have consistently held that the threshold for an unequal division of assets is exceptionally high. This is because the underlying policy of the Family Law Act encourages finality, predictability, and certainty. The exercise of judicial discretion should be minimized as much as possible. To cross the threshold, according to the Court of Appeal in Serra v. Serra, an equal division of net family properties in the circumstances must “shock the conscience of the court.”+

In the recent case of Ward v. Ward, the Ontario Court of Appeal clarified its decision in Serra, supra, holding that the exercise of discretion is not to alleviate every situation that may be viewed as in some way unfair or inequitable. To do so, the court explained, would defeat the underlying policy of discouraging litigation.

*R.S.O. 1990, c. F.3, as am. s.5

+ 2009 ONCA 105

^ 2012 ONCA 462

& see e.g. Boisvert v. Boisvert, [2007] O.J. No. 2555, 40 R.F.L. (6th) 158 (S.C.J.)

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.


Fraud Alert! Recently Confirmed Cases

Posted in: "All, Business Development, In the News, Lawyer Talk by Pei Wang | No Comments Monday, October 1, 2012

Our insurance company, Lawyers’ Professional Indemnity Corporation (generally referred to as “LawPro”), regularly publishes information on confirmed frauds and scams against lawyers on their “avoid a claim” blog. Today I’d like to share with you a few of the recently confirmed frauds that target lawyers.

Too good to be true? It probably is. (Photo courtesy of stock.xchng, all rights reserved)

Type: Separation Agreement Scam

Synopsis: Purported client living in South Korea wishing to collect $515,500.00 from her ex-husband, who resides in the targeted lawyer’s jurisdiction. Fake divorce decree and separation agreement signed by the parties were produced.

Details of initial contact:

Kathrine Chung
Address: 928-12 Daechi 3-dong, Gangnam-gu, Seoul 135-502, South Korea

Type: Commercial Debt Recovery

Synopsis: Purported client wishes to engage legal services for recovery of debts totalling $1,150,000. Fake documents, including invoices, were produced by the alleged debtor.

Details of initial contact:

Iwashima Lui
Accounting Officer II,
Iwashima Electronics Co.,Ltd.
2-39, Chihara-cho, Nakamura-ku, Nagoya, Aichi
ZIP 453-0011 EMAIL: iwashimalui@ymail.com

Synopsis: On behalf of his corporation, purported client contacted lawyers for commercial litigation in their jurisdiction. Amount of money allegedly in dispute was not provided.

Details of initial contact:

Peng Chen, Chief Accountant
Wuhan Iron & Steel (Group) Corporation.
Qingshan District of Wuhan,
China.
Email: wuhangroup50@hotmail.co.uk
Website: www.wisco.com.cn/wisco_ en

Email originated from Verne C. Bechill [mailto:bchill@alma.edu]

Synopsis: Purported client contacts lawyers for alleged business loan dispute. The amount allegedly in dispute is $850,000.

Details of initial contact:

From: Ken Moore
To: lawyer email
Date: 09/20/2012 10:08 PM
Subject: Assistance required

Dear Counsel,
My company is currently looking for a Law Firm that can assist us with the issue of an overdue loan of ($850,000.00 ) that I had provided to a former business partner of mine Benjamine Ford. If you or your firm can handle this matter, get back to me at your earliest convenience so that I can provide detailed information and related documents on this issue.
Sincerely
Ken Moore

Synopsis: Purported client wishes to retain lawyer for the collection of a business loan in the amount of $350,000.

Details of initial contact:

From: ABRAHAM J. YUZUKI [mailto:abraham_j_yuzuki@yahoo.com]
Sent: Wednesday, September 05, 2012 9:18 AM
Subject: Legal Service Needed!

I need your legal assistance. I provided a friend of mine Mr Brian Caldwell a business loan in the amount of $350,000. He needed this loan to complete an ongoing project he was handling in 2009. Mr Brian is well based in your city and the loan was for 24 months and interest rate of 7.85%. The capital and interest were supposed to be paid on April 15th, 2011 but Mr Brian has only paid $50,000.

Please let me know if this falls within the scope of your practice so that I can provide you with the loan documents and any further information you need to know. My email is: abrahamjyuzuki1@hotmail.com

Thanks,

Abraham J .Yuzuki

The above are only a few of the recently verified cases. This blog is posted for your information and does not constitute legal advice. Please verify the accuracy of the information posted above with LawPro before you rely on it. Contact details of LawPro are as follows:

Lawyers’ Professional Indemnity Company
250 Yonge Street, Suite 3101
P.O. Box 3
Toronto, ON
M5B 2L7
Phone: 416-598-5800 or 1-800-410-1013
Fax: 416-599-8341 or 1-800-286-7639


Sneak Preview: New Card!

Posted in: "All, Business Development, Site Updates by Pei Wang | No Comments Monday, October 1, 2012

My business card has been revamped. Now it has my picture on it! Here’s a sneak preview: