Lawyer Talk

Book Review: Lawyers Gone Bad

Posted in: "All, Book Review by Admin | No Comments Sunday, September 14, 2008

Lawyers Gone Bad

By Philip Slayton

2007, Penguin Group (Canada)

294 pages; $36.00 hardcover, $13.50 mass market paperback

Welcome to the book review section of my blog! As reading is my favourite past-time, I’d like to share some thoughts with you about the books I’ve just read.

When Philip Slayton’s book Lawyers Gone Bad first came out in 2007, Maclean’s magazine ran an article commenting on how lawyers are bad people (I’m paraphrasing); the article triggered an uproar within the legal community. The Canadian Bar Association went so far as to issue a press release condemning the article.

After reading the book, I think the uproar was an overrated reaction. True, Slayton’s book described and discussed a dozen dishonest lawyers who got disbarred; however, nowhere in the book does the authoer imply that all or most lawyers are bad people. In fact, the author states that most lawyers are honest hardworking people, and the dishonest ones are the exception rather than the rule.

Individuals featured in this book vary from dishonest lawyers who mishandled clients’ funds (Chapter 2 on Donaldson and Chapter 3 on Cooper), to lawyers who helped clients commit fraud (Chapter 11 on Shead and Chapter 12 on Wirick), to lawyers who abused their positions to gain sexual favours (Chapter  8 on Johnston and Chapter 9 on Bomek).

The book is well-researched. The author diligently gathered information from court records, newspaper clippings, and sometimes interviews with the featured individuals. The cases are described in detail, often with footnotes. While some readers may find the notes informative, I found them distracting.

I also believe that Slayton’s narrative approach leaves some room for improvement. The author too often quotes directly from court files and newspapers, and the result is an inconsistent tone. At times the flow of the stories is interrupted by minor details that are not central to the case.

While I won’t comment on the individual cases discussed in the book, it is fair to summarize the lawyers profiled as individuals who made poor decisions in their careers.

Suffice it to say that these are sorrowful stories that could easily have happened to rogue members of any other profession – doctors, nurses, teachers, accountants. I don’t think the book paints lawyers in a bad light; rather it serves as a reminder to the public, as well as the legal profession, that every action has its consequences.

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Notary Public – What Is It?

Posted in: "All, Administrative Law, Legalese Dictionary by Admin | No Comments Monday, September 8, 2008

Most people have heard of notaries public, but few know what they do. I’d like to talk about what notaries public do and also how to become one.

Notary public is one of the oldest professions in existence, dating back to Roman times.

In modern times, the power of notaries public varies from jurisdiction to jurisdiction.

Broadly speaking, Notaries public are essentially state-appointed officers who are entitled to administer oaths and attest to the authenticity of documents. In certain civil law jurisdictions, notaries public are entitled to practise law. However, this is not the case in most common-law jurisdictions, such as Ontario, UK, or the US.

In Ontario, notaries public are appointed under the Notaries Act. All lawyers in Ontario are entitled to apply for an appointment (with a small filing fee); non-lawyers who are Canadian citizens can become notaries public subject to examination by a judge or a public servant, although their notarial power may be limited in territory or in function, or both.

In plain language, the notary public provides the following services (please refer to the Notaries Act for the exact wording):

  • drafting, passing, and keeping all deeds, contracts and other commercial agreements,
  • confirming the execution and authenticity of all commercial instruments
  • administrating oaths and statutory declarations in Ontario

Most clients think notarization makes a document more important or more acceptable in law; this is a myth. Over the years of my law practice, I’ve had clients ask me to notarize various documents. However, legally speaking, most of the documents have not required notarization, and notarizing them would have meant absolutely nothing in law. Thus, at times I find myself feeling conflicted while dissuading clients from obtaining my notarial services.

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Lowering the Bar… LOWER!

Posted in: "All, Just for Laughs by Admin | No Comments Friday, August 8, 2008

Today I stumbled upon this legal humor site “Lowering the Bar” (http://www.loweringthebar.net)

This site is written by a lawyer in San Francisco, Kevin Underhill. It is full bits of off-beat stories of the law, the legal profession, then some really interesting, witty stuff.

On the site, I came across this actual order of the Circuit Court of the Greene County, 4th Division, Missouri, that the author managed to find which I must now share with you:

[Note: the following material is being shared under the terms of license by Creative Commons 3.0 - United States. Click here to view the licensing policy]

WHEREAS, on the dates set out below, in the presence of Judge Thomas Mountjoy of the Court of Greene County, Missouri, attorney Carlos Dupree Romious, aka D. Carlos Romious, did do the following stupid things, among others:

On June 16, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely assert that the court proceeding was a “joke” and a “travesty” . . . [and] did loudly and rudely accuse the Court of “corrupting and stinking up the case” . . . .

On June 17, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely accuse the Court of “being anything other than impartial, justiciable [sic] and anything but competent” . . . [and took] a copy of a pleading served upon him in open court . . . , wadded it up and threw it on the floor some distance from counsel table and thereafter walked to it and used his shoe to grind it into the floor . . . [and] did indicate to Court his refusal to appear in court [when ordered, saying] “don’t hold your breath” . . . .

On June 18, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely ask the Court, “are you a pedophile?”

All of which said behavior was willfully and intentionally committed, contemptuous, insolent and directly tended to interrupt the proceedings of the Court and the respect due to its authority . . . Carlos Dupree Romious, aka D. Carlos Romious, is guilty beyond a reasonable doubt of direct criminal contempt.

View the Actual Order HERE


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Humour Me

Posted in: "All, Just for Laughs by Admin | No Comments Friday, August 1, 2008

Today is the Friday of the August long weekend. I hope everyone is having some time off before the snowstorm hits in a couple of weeks.
Today I stumbled upon the site Legalhumor.com. It has some pretty interesting stuff, humourous but never tacky. Best of all: no lawyer jokes! I would like to share a few quotes that actually came from the bench.

(Please note that copyright of the contents belong to their respective owners. The contents displayed below are for news summary and criticism purposes only.)

Case #1: Montgomery v. Canada West Insurance Co. [1996] A.J. No. 820

Master Funduk of Alberta:
“In his first affidavit the Plaintiff exhibits a 10 page list of chattels he says were destroyed. The list ranges from ‘pencils, cancelled cheques, bank statements’, one bar of soap, one tooth brush, one tube of tooth paste, one hair brush, after shave lotion, cologne, deodorant and up, including 80-100 Playboy magazines. The Plaintiff says that the lost chattels consisted of half a lifetime of gathering from garage sales, sports stores, auction sales and an inheritance from his father.
“It must have been a very large trailer.”

Case# 2 Alberta Treasury Branch v. Powell, 31 March 1998

Master Fuduk of Alberta:
“If Mr. Powell was to himself remove his inflamed appendix he can do so but he will botch the job.
“If he wants to drill and fill his aching tooth he can do so but he will botch the job.
“If he wants to act for himself in this lawsuit he can do so but he will botch the job. He has.”

For more witty qoutes from the bench, please visit legalhumor.com, or click here.

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Criminal Offences Under the Copyright Act

Posted in: "All, Copyright and Trademarks, Legalese Dictionary by Admin | No Comments Tuesday, July 22, 2008

In yesterday’s blog, I mentioned that the Copyright Act is, “for the most part,” a statute providing civil remedies for copyright holders. Today I want to talk about criminal offences under the Copyright Act.

It is an offence for anyone to…

  • sell or rent out an infringing copy,
  • import for sale or rental an infringing copy,
  • distribute widely or by way of trade infringing copies (e.g., through music sharing and downloading),
  • exhibit in public an infringing copy,
  • knowingly possess or adapt any plate for the purpose of making infringing copies,
  • knowingly, for private profit, cause copyright-protected work to be performed in public without the consent of the copyright holder.

The punishment for the above-mentioned offences depends on whether the Crown elects to proceed summarily or by way of indictment. The liabilities range from up to six months of imprisonment to up to 5 years, and from up to $25,000 dollars to up to $1 million.

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Costs

Posted in: "All, Legalese Dictionary by Admin | No Comments Thursday, July 17, 2008

When I was still a student, I once heard a lawyer say this about costs in the Superior Court: “To bring a motion is like buying a car: it may be a junk car or a nice car, but you are buying a car. To do a trial is like buying a house: it may be a small house or a big house, but you are buying a house.”

Now that I am in private practice, I can’t agree with the saying more. A typical (opposed) motion in the Superior Court typically costs between $10,000 to $30,000; a full-blown trial may cost a few hundred thousand dollars or even millions.

However, you can’t exclusively blame the lawyers for their high rates. In Ontario, unlike the U.S., we have what is called a “cost-shifting system,” meaning that the losing parties, besides footing their own bill, must pay the costs of the winning parties.

There are two types of “costs” that are payable by the losing parties. The usual one is called “partial indemnity,” or “party-to-party cost,” meaning the amount payable to the winning party is about 2/3 of the actual legal bill. Partial indemnity are frequently granted when  no other consideration, such as improper conduct, is involved.

The second, rarer, type of costs payable is called “substantial indemnity,” or “solicitor-client cost,” where the amount payable is close to the actual amount that has been charged to the winning party. This type of costs is generally granted when there are evidence of improper conducts by the losing party.

Besides the two types of costs mentioned above, the judge may also fix the amount of the costs payable. When doing so, the judge generally considers the complexity of the proceeding, the behaviour of the parties, and whether the bills submitted are of reasonable amounts. Occasionally, the judge may order that there are no costs payable if the circumstances warrant.

The fairness of our cost-shifting system is debatable. On the one hand, cost-shifting serves as a deterrent against frivolous claims, since the losing parties are penalized by having to bear the costs of the winning parties. On the other hand, cost-shifting becomes an obstacle for individuals with modest means who wish to bring their claims forward because they fear the possible cost consequences. Which argument should prevail? Your answer, of course, may depend on whether you are the winning or the losing party.

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What Is Moral Right?

Posted in: "All, Copyright and Trademarks, Legalese Dictionary by Admin | No Comments Wednesday, July 9, 2008

Moral right is the author’s personal right relating to the protected work, independent from the copyright, regardless of any assignment of copyright.

Think of moral right as a parallel right to the copyright, because both moral right and copyright arise out of the authorship of protected works.

Moral right cannot be assigned, but can be waived.

In summary, moral right encompasses the following rights:

(1) Paternity Right: The author has the right to be associated with the work. The author has the right to be named, be named under a pseudonym, or remain anonymous.

For instance, for works done during employment, the employer would be the first owner of the copyright, but the author employee would nonetheless be entitled to be properly credited as the author.

(2) Integrity Right: The author has the right to the work’s integrity.

For instance, a sculptor has the right to restrain the exhibitor from mutilating the work.

(3) Association Right: The author has the right to restrict association of the work with something else.

For instance, a painter may restrain the owner of the painting from associating the painting with businesses that may harm the painter’s reputation.

Under the much-blogged Bill C-61, the Parliament is considering granting moral rights to performers, which are essentially the same as an author’s moral rights.

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