Cost Award from Blogging: Blake v Blake

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If you or your firm blogs about a court decision, then the court will infer that you knew about the case.

In Blake v. Blake, 2019 ONSC 4062, Justice Daley wrote about the consequences of blogging about a case but failing to bring that case to the court’s attention.  Counsel for the respondent blogged about a leading case, but did not tell the court about it. Instead, through research of his own, Justice Daley found the leading case and then found the firm blog post on it. As a result, Justice Daley awarded substantial indemnity costs against the respondents.

At paragraph 13, Justice Daley writes that “The conduct of counsel for the respondents gives rise to some very serious concerns regarding counsel’s understanding and recognition of his duty as an officer of the court and his duty of candor with counsel opposite.”

[22]      In the course of considering the law in this area, while my decision was under reserve, an estates litigation blog commentary dated November 16, 2018, also came to my attention entitled “Is a Notice of Objection to Accounts Subject to a Limitation Period?”

[23]      It is most noteworthy that this blog was written by solicitor Charles Wagner on behalf of his law firm Wagner Sidlofsky. This is the one and the same law firm that the respondents’ counsel practices with. This is a small specialized firm practicing in the area of estate litigation.

Justice Daley concluded that counsel for the respondent knew about the case and failed to bring it to his attention. By failing to bring the decision to the attention of the court, Justice Daley held that counsel misled the court.

At paragraphs 31-32, Justice Daley writes: “… while a lawyer does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court.” Counsel are also not permitted to be ignorant of the law. “Thus, while this may not amount to a deliberate misrepresentation, counsel nevertheless may be found to be in breach of their duty to the court for failing to have conducted reasonable research as to relevant authorities.”

The moral of the story is that counsel has a duty to bring to the court’s attention leading, relevant cases, even if it is contrary to their position.

(Views are my own and do not reflect the views of any organization.)

 

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Civility in the Classroom

Last week I had the honour of guest lecturing at the University of Ottawa law school as the inaugural Cavanagh Williams LLP Practitioner in Residence. The topic was “Ethics in Advocacy”. It was an honour to be a part of the course “Professional Responsibility”.

The lecture began with an introduction of the topic by Professor Adam Dodek. Subsequently, I led a discussion of the principles of professional conduct. The discussion dealt with a variety of scenarios encountered in legal practice. There was a lively debate about how lawyers should handle swearing affidavits, disclosing relevant documents, and preparing witnesses for court (among other things). All scenarios were based on true stories that included ethical dilemmas.

The lecture ended with a group presentation on the meaning of civility and the principles of professional conduct. Of interest was a debate about the case Laarakker2011 LSBC 29. In that case, the lawyer Mr. Laarakker was disciplined by the Law Society of British Columbia for making discourteous remarks online and directly to an Ontario lawyer. Mr. Laarakker was warning the public about a scam. Questionable demand letters were being sent to unsophisticated individuals. Below are the discourteous remarks:

[12] After consulting with the client, the Respondent sent a one page fax letter to the Ontario Lawyer. The Respondent’s letter read:

I have been approached by [the client] with respect to your letter of October 30, 2009. Suffice it to say that I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to the only use for which it might be suitable, however uncomfortably.

It is disappointing when members of our profession lend themselves to this kind of thing. You must know that you are on the thinnest of legal grounds and would be highly unlikely to get a civil judgment against my client. That is aside from the logistics in bringing this matter to court in BC. I am also well aware that by preying on people’s embarrassment and naiveté you will unfortunately be able to pry some money out of the pockets of some of the humiliated parents.

The Law Society of British Columbia fined Mr. Laarakker for his remarks. The Law Society concluded:

[45] As noted above, the Respondent takes the position that he was allowed, perhaps even compelled, to do what he did in the face of a “rogue lawyer”. Even if the Ontario Lawyer can be considered to be a “rogue”, it is not the Respondent’s place to pursue some form of vigilante justice against that lawyer by posting intemperate personal remarks or by writing letters that do not promote any possibility of resolution of the client’s legal dispute.

 

[46] Clearly, the appropriate avenue for the Respondent to take would have been to file a complaint either with the Law Society of Upper Canada or the Law Society of British Columbia. Obviously, the Respondent did not take those steps. Thus, by taking actions that he felt were protecting the integrity of the profession, he was achieving the opposite result.

I really enjoyed the class’s discussion on this case. It was interesting to hear the perspectives of students, especially considering that most of them are of the Facebook, Instagram, Snapchat generation.

The day ended with a small lunch with a few students. I had a wonderful experience, and I hope that the students enjoyed it too!

 

 

Wiki Law: Friend or Foe

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Many law firms have banks of precedents to refer to for research, memos, pleadings and so on. So far there has not been any substantive effort to consolidate the work online, like on Wikipedia. Such an effort would devastate the traditional legal publishing community but would be a valuable resource to lawyers and laypeople alike.

At the moment, there is not a strong incentive to share legal precedents between firms and make it publicly available, even though we would all benefit from doing so.

However, the trend is moving towards a consolidated bank of precedents. More and more lawyers and law firms are blogging about current legal issues and cases.

Part of the reason for this development is the change in the underlying information substructure. As Richard Susskind remarks, we are moving from a print-based society to an internet-based society. And since law is an information based profession, a change in the way information is disseminated alters the profession as a whole.

The legal community should look towards other industries that are information based for examples on how best to respond. For example, the New York Times released a fantastic report on how they plan to innovate in an internet-based society.

http://visualdays.no/files/2014/05/224608514-The-Full-New-York-Times-Innovation-Report.pdf