Professional-Responsibility - David Scrimshaw on Diigo

15 Dec 09

1013952 Ontario Inc. (Silverado Restaurant and Nightclub) v. Sakinofsky, 2009 CanLII 60783 (ON S.C.)

a lawyer is liable for the negligent acts of his or her employees, including junior lawyers. The failure of a principal to supervise the work of a junior lawyer is grounds for professional negligence. See: McKay v. Cowan, 1989 CanLII 2808 (BC S.C.), 1989 CanLII 2808 (BC S.C.). The obligation to supervise does not flow upward from the junior to the senior. Rosso’s argument to the contrary flies in the face of the common law. It also ignores the way in which work is assigned and supervised in law offices. It would be a surprising result if the most junior, least knowledgeable and least experienced employee was liable in law for a senior lawyer’s errors or omissions on a file

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Law Professional-Responsibility supervisor

12 Nov 09

Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, 2009 CanLII 62055 (ON S.C.D.C.)

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Law Professional-Responsibility Investigation

courts have concluded that a regulatory body has implied authority to conduct an
informal investigation in circumstances where it is not necessary to resort to
the powers accorded to an individual who is conducting a formal investigation

10 Nov 09

Miksche Estate v. Miksche, 2009 CanLII 60409 (ON S.C.)

A general retainer to act as counsel in litigation does not vest in the lawyer unfettered authority to “resolve matters” on terms he considers fit,

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Law settlement Professional-Responsibility

Under a retainer to act in litigation a lawyer must obtain the consent of his
client before taking a material step in the litigation which would result in the
incurrence of significant costs by the client or before compromising the
client’s rights in the litigation, unless the retainer agreement contains clear,
express language reposing discretion in the lawyer to act as he sees fit in
specified circumstances.
The requirement of full disclosure is not met where a lawyer acts to compromise
the client’s rights, for the financial benefit of the lawyer alone, without
first obtaining the client’s informed consent
2 more annotations...
- while an attorney acting under a continuing power of attorney is
  always a fiduciary, the scope of the attorney's fiduciary duties depends on
  whether the donor of the power is incapable at the time of the transaction. If
  the donor is mentally incapable, the attorney's position approaches that of a
  trustee. If not, the relationship between donor and attorney is similar to one
  of agency
- [67] Even on Mr. Polten’s own theory
  of the events, he knew that Ms. Lill was an elderly lady, in her eighties, and
  she was competent. Before committing her to a legal strategy that would
  generate over a million dollars in billings, he was under a professional
  obligation to ensure that Ms. Lill clearly understood the financial risks of
  such a strategy and that she had provided informed, unambiguous, express
  instructions to proceed on that course on her behalf. No evidence of such
  instructions was placed before me. Further, he was under a professional
  obligation to ensure that Ms. Lill understood the risk of an appeal and had
  provided express instructions to proceed; no such evidence was placed before
  me. Finally, he was under a professional obligation to ensure that Ms.
  Lill understood all implications of the offer to settle and had provided express
  instructions to make the Offer on her behalf; no such evidence was placed before
  me.

23 Oct 09

R. v. Bevan, 2009 ONCJ 487 (CanLII)

[17] Prudent and experienced counsel will not, however, engage in interviews with an opposing witness and in particular a complainant, without having a third party witness present

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Law witness Professional-Responsibility

03 Oct 08

Carleton v. Beaverton, 2008 CanLII 48808 (ON S.C.)

d. No counsel shall bill their clients for any of their time for those matters.
e. Each counsel shall send a copy of this endorsement to their respective clients within 7 days and file an affidavit with the court file verifying that they have done so.

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Law Professional-Responsibility Lawyers-screwing-up

[40] As I informed counsel I shall
be making a complaint to the Law Society of Upper Canada concerning Mr.
Neinstein’s conduct. The fact that a month after he had made many
allegations of unprofessional conduct, including deliberate deception, against
Mr. Forget which were either not proven or groundless he would write a letter
saying, “In view of the obvious bias of the Whitby courts, the only solution for
a fair hearing is to move this action to Toronto” warrants further consideration
in light of Rule 4 of the Rules of Professional Conduct.
- The Law Society is already quite familiar with Mr. Neinstein: http://www.canlii.org/en/on/onscdc/doc/2008/2008canlii48142/2008canlii48142.html - on 2008-10-03
Add Sticky Note

01 Oct 08

R. v. Terrigno, 2008 ABPC 240 (CanLII)

Mr. Terrigno gave his evidence-in-chief in a rehearsed manner. It was apparent that he was basing his self-serving testimony on what he believed he would have done and not what he actually recalled doing. For example, when asked if he got in front of Sergeant Brar, Mr. Terrigno stated “there is just no way I did that. I am smart enough not to do that.” Observing the way he said that gave the distinct impression that he was not actually recalling the event but rather was basing his answer on how he would have acted with sober aforethought

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Law Criminal lawyer Professional-Responsibility

It was apparent that he was basing his self-serving testimony on what he
believed he would have done and not what he actually recalled doing. For
example, when asked if he got in front of Sergeant Brar, Mr. Terrigno stated
“there is just no way I did that. I am smart enough not to do that.”
Observing the way he said that gave the distinct impression that he was not
actually recalling the event but rather was basing his answer on how he would
have acted with sober aforethought
His characterization of his words as “inappropriate” at trial, much minimizes
their actual atrociousness.
2 more annotations...
- He stated that his admonition to Ms. Riopel was to “calm down”, to “relax”,
  “not be emotional”, to “cooperate”, and “not to get excited”. Yet, this
  was most certainly not his demeanor. To the contrary, he was loudly
  yelling with obnoxious, incendiary and extremely abusive language. He was
  deliberately confrontational. I find as a fact that he purposely misled
  his status to the police officers, stating he was a lawyer as opposed to a law
  student, in an attempt to give himself greater credibility and influence with
  the police. I find as a fact that he never stated that he was a law
  student as he maintained at trial; that he must have forgotten saying this due
  to his inebriated state, or that he was lying at trial
- I find as a fact
  that both of their testimonies were contrived.

26 Sep 08

Phinny v. Macaulay, 2008 CanLII 47015 (ON S.C.)

An excellent overview of Registry Act title requirements, requisitions, easements, abandonment, duty Lawyers owe clients, and mitigation.

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Law property Easement abandon title Professional-Responsibility lawyer standard-of-care

Mr. Provenzano was negligent and in breach of his contract to Mr. Phinny in
keeping relevant information from his client, preventing his client to assess
his obligations under the Agreement given the change in circumstances,
preventing his client from instructing him, preventing Mr. Phinny from
evaluating his risk in not closing, failing to advise the client as to the new
information obtained and alternative court remedies as to the then issues
between the parties and loosing an opportunity to purchase the property.
Accordingly, Mr. Provenzano is
responsible in law for any liability determined owing to the plaintiffs by Mr.
Phinny’s failure to close and to repay his client his deposit with interest in
such event

15 Jul 08

v\Law Society of Upper Canada v. Evans, 2008 CanLII 34276 (ON S.C.D.C.)

Sex harasser judge gets readmitted to the bar with conditions.

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Law Discipline Professional-Responsibility Judge

In this case, the Hearing Panel held that the applicant had “the burden to
present clear and convincing proof based on cogent evidence that the application
should be granted.” (Hearing Panel Reasons, para 8)
The test to be met for restoration ensures that persons guilty of past
misconduct are not restored without due regard to the protection of the
public. However, there is no precedent for imposing on top of that
difficult test the additional burden of meeting the test based on the enhanced
“Bernstein standard”.
5 more annotations...
- The burden should be on the applicant to prove restoration is appropriate.
- Unless required by the context of the legislative scheme, as a general
  proposition, he who seeks a privilege bears the onus of proving it should be
  granted
- [50] There can be situations in
  which a finding of credibility made in one court proceeding can be relevant to
  character in a completely separate proceeding. However, those situations
  are rare and typically arise only where there has been a clear finding of
  fabricated evidence or perjured testimony in a prior hearing
- a better formulation of the question, clarifying who bears the burden, would be,
  “Should the applicant be entitled to resume his or her legal career,
  notwithstanding the conduct that led to the termination of the official
  position, when considered in all the relevant circumstances?”
- in considering restoration under s. 31(3) it is reasonable to apply a test that
  is similar to the test for readmission of a disbarred lawyer, with appropriate
  adjustments

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