Column

Self-Represented Parties and Sharp Practice by Counsel – Should We Be Thinking Differently?

War is the means by which nation states have sometimes resolved their differences. Litigation is the means by which people in our society sometimes resolve their differences. In both cases, there is value in prescribing the rules of engagement.

As wars between sovereign states have become less common and wars between sovereign states and insurgencies have become more the norm, the traditional rules of war seem to have become less relevant. This is presumably because rules that work to govern combat between traditional armies don’t effectively address asymmetric disputes where conventional militaries face off against “guerrillas”, “terrorists” or “freedom fighters” (the language depending on perspective and context).

Of course litigation is not and should not be conducted like a war.

My point is that necessary rules of engagement can be based on principles that no longer apply in some circumstances. Our professional conduct rules may face a similar challenge as the rules of war as the conduct rules appear to be premised on the assumption that all parties are represented by counsel and are comparably resourced.

Perhaps more importantly, life is not mostly about rules. Social norms are often more important than rules both between nations and within societies. We know from recent events that destabilizing important social norms is corrosive and threatening. But the reverse is also true. Making clear what is fair and acceptable is valuable. If we are going to deal properly with access to justice and SRLs, we need to be clear that treating people properly and not taking advantage of their vulnerability matters.

The 2nd National-Self Represented Litigants Project Dialogue

I recently attended the 2nd National-Self Represented Litigants Project Dialogue (the “Dialogue”) at the University of Windsor. In attendance were self-represented litigants, lawyers, judges and academics. This conference was held five years after the first SRL Dialogue which addressed the research undertaken by Professor Julie Macfarlane about self-represented litigants (SRLs).

One of the topics raised by SRLs at the Dialogue was sharp practice by counsel. These SRLs made clear that they consider that they were commonly being dealt with unfairly by opposing counsel. One lawyer at the Dialogue suggested that this was because the conduct rules were written by lawyers for lawyers.

I disagreed saying that it seemed to me that our approach to legal ethics was premised on the assumption that all participants in the adversarial process are represented by professional advocates – and that our approach can be problematic where that assumption does not apply.

Legal ethics in the adversarial system where parties are not evenly matched

In litigation

Essential to Canadian legal ethics is that advocates will resolutely advance their client’s interests subject to ethical obligations intended to ensure that the administration of justice works properly. For example, ethical rules require that counsel not “deliberately refrain from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party” and not “make suggestions to a witness recklessly or knowing them to be false”[1].

Adversarial systems, by their nature, work best where the protagonists are similarly resourced. An independent adjudicator is best able to reach a fair decision where competition between adversaries ensures that all relevant evidence and arguments are tested. Where parties are very differently resourced, the adversarial process works less well. This is the stuff of movies where a human David takes on a corporate Goliath in court. Davids win in movies but not so much in real life.

The David and Goliath problem can exist where David is represented by counsel. Even having experienced counsel does not necessarily overcome having insufficient resources to conduct investigations, retain experts and prepare for trial. The unfortunate reality is that some Goliaths conduct strategic wars of attrition. Even where that does not occur, being out-gunned is problematic in an adversarial system.

A David and Goliath problem can arise where a represented party engages with another party who can’t afford counsel. This appears to be most common in family law proceedings. While it is of course commonly the case that neither party is represented, it is common for one family law litigant be represented while their opposing party is not. This also occurs in other civil litigation between individuals and in civil litigation between individuals and business.

It was striking to hear from SRLs attending the Dialogue of their perception was that they commonly experience sharp practice in dealing with the advocates on the other side. Of course, this is anecdotal information. It may be that SRLs who experience sharp practice are more motivated to become engaged and to report their experiences. It may be that there is another side to the story. It may be that SRLs may consider some conduct to be sharp practice which actually is not. But it makes sense to think that SRLs are more vulnerable to sharp practice and the stories told seemed to me to reflect real problems.

If we accept that SRLs are more vulnerable to sharp practice and that some advocates seek to advance their clients’ interests by taking unfair advantage of their greater expertise and client resources, the question arises whether ethical rules premised on representation adequately protect the administration of justice where the adverse party is self-represented.

Probably more importantly, if the administration of justice is going to work properly where SRLs are involved, it is important that counsel take care to act properly.

Demand Letters

A similar issue arises where lawyers make demands for payment for relatively small amounts on behalf of well-resourced clients against parties who are unlikely to seek representation. Amy Salyzyn wrote about this several years ago in her column Bully Lawyers & Shoplifting Civil Recovery Letters: Who’s Going to Stop Them? and in her journal article Zealous Advocacy or Exploitative Shakedown?: The Ethics of Shoplifting Civil Recovery Letters. The Toronto Star has recently addressed this issue in an article which quotes Alice Woolley saying that “There’s an exploitation of power here”.

A problem arises where the amount in issue, say a few hundred dollars, is not enough to merit the cost and trouble of seeking legal advice and the demand for payment is either without legal merit or of dubious merit. The problem is compounded where there is no real prospect that the claimant will commence proceedings and have the merits of the claim fairly adjudicated. While many recipients of such demands will ignore them, some will pay on demand out of fear or ignorance.

Where the recipient of a dubious demand letter seeks legal counsel, the recipient can elect to pay or not pay on an informed basis. Where a demand is adjudicated, a dubious demand can be dealt with on the merits and, where appropriate, costs can be awarded against the claimant.

But where large numbers of dubious or improper demands are sent where legal representation is unlikely, there is a problem where payments are made out of ignorance or fear. It is not a sufficient answer to say that the courts will adjudicate such demands where proceedings will not be brought and adjudication will not occur. Economics underlie the problem. There is an incentive for a claimant to send a volume of demands if the cost of each demand is low and some demands are satisfied. There is little if any incentive for a claimant to actually commence litigation against any one potential defendant. It makes little practical sense for any recipient to engage legal counsel for a few hundred dollars to decide whether or not to pay a claim for a few hundred dollars.

Our adversarial system and our approach to legal ethics operate effectively where parties are represented by counsel and have reasonably comparable resources. But for Davids facing Goliaths, whether in litigation or before litigation, there can be problems.

The Conduct Rules and self-represented parties

Rule 5.1 of the Model Code (The Lawyer as Advocate) does not address dealing with represented and self-represented adverse parties any differently[2]. The requirements of Rules 5.1-1 and 5.1-2 simply do not address acting against self-represented parties[3].

Under Rule 7.2 (Responsibility to Lawyers and Others), Rule 7.2-9 provides that:

When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must:

(a) urge the unrepresented person to obtain independent legal representation;

(b) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and

(c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.

Rule 7.2-9(a) is of little value in addressing imbalance where a person is self-represented because the person cannot afford representation or because the cost of representation is disproportionate to the matters in issue. Where a person can’t afford representation, it is of no value to urge them to obtain representation. Beyond this, the rule simply ensures that SRL understand the role of opposing counsel.

That said, it is not entirely obvious how the conduct rules ought to be modified where one party is represented by counsel and the other is not. It is difficult to conceive of conduct rules that provide for constrained representation in an adversarial process when our entire ethical approach is premised on undivided loyalty.

What to do?

At a deeper level, the problem is less the conduct rules that the advocate must follow and more the use of the adversarial system to resolve disputes where some of the adversaries do not have sufficient resources for the adversarial system to work properly. And particularly in the family law context, it is seems more than odd to think that an adversarial approach is constructive where relationships must continue through custody and support and where emotion rather than reason is so often in play. It is the very adversarial system, rather than the conduct required of counsel therein, that appears to be the problem.

But assuming the adversarial system, we should question whether reform is appropriate to address the fact that the adversarial system and the conduct rules are built on the assumption that all parties are represented by counsel.

As to modified conduct rules, I’m not aware of any proposals that could effectively make the administration of justice work more effectively in this context[4]. I doubt that it would be useful to vaguely require counsel not to take “unfair advantage” if that means doing something other than acting in accordance with the existing rules. And if the existing rules should be modified in context, advocates should be told what that the modifications really mean[5].

Perhaps the answer is not so much the conduct rules themselves but rather their application. Where both parties are represented by counsel, the advocate knows that breach of the conduct rules may well be identified by opposing counsel. There is greater disincentive to breach. And some breaches will be less likely to have an adverse effect on the administration of justice where there is effective adversarial competition.

If this is so then three points seem to me to emerge. The first is that there could be value in commentary in the conduct rules to the effect that a lawyer or paralegal is required to take special care to fully comply with the conduct rules where the adverse party is an SRL[6].

This might help set stronger social norms which could be valuable.

The second and third relate to the concurrent jurisdiction of the courts and the law societies in addressing the conduct of advocates[7]. As Chief Justice McLachlin said for the Court in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 at paras. 13 and 15:

… The courts’ purpose in exercising their supervisory powers over lawyers has traditionally been to protect clients from prejudice and to preserve the repute of the administration of justice, not to discipline or punish lawyers.

… The purpose of law society regulation is to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules — in short, the good governance of the profession.

Notably, not all sharp practice in litigation will engage the jurisdiction of the court over proper administration of justice. For example, where litigation does not follow a dubious demand letter, the court will have no jurisdiction. Even if improper conduct does engage the jurisdiction of the court, a judge may conclude that it is better not to “to criticize or complain about an advocate’s uncivil conduct in court” given “the simple reality that refraining from such action in a given case may permit the proceeding to advance more efficiently”[8].

Similarly, the law societies do not necessarily investigate and prosecute all professional misconduct. Give the volume of conduct investigated, relatively few conduct proceedings are commenced. Law societies are understandably reticent to adjudicate the propriety of legal claims. Law societies tend to defer investigation and prosecution of alleged misconduct in a proceeding until after the proceeding is completed to better ensure that complaints are not used as tactical weapons in proceedings and to avoid interfering with the administration of justice.

For an SRL who is uncertain about the process and see themselves as outsiders, this may contribute to a greater lack of confidence about the process itself. It may seem like protection of the advocate by the system. This may also result in fewer disincentives against improper practice. Those who are prepared to operate close to, or over, the line may be more prepared do so.

Assuming the adversarial system, the question is whether courts and law societies should be more willing to address alleged sharp practice where the opposing party is an SRL. There seem to be credible reasons to think so. There may be procedural mechanisms, just as an ombudsperson in the courts, who could assist. The risk on the other hand is that complaints could compromise the litigation process, whether intentionally or because the SRL is not well positioned to assess impropriety, thereby making an already inefficient and expensive process more so.

As is so often the case, the ultimate answer requires thoughtful balancing. But it does appear that the current balance may not best ensure the proper administration of justice[9].

_______________________

[1] Rule 5.1-2 of the Model Code of Professional Conduct

[2] The Commentary addresses dealing with unrepresented complainants in criminal and quasi-criminal proceedings which is a different matter

[3] Commentary 6 to Rule 5.1-1 contains an interesting but enigmatic reference to situations where the adversarial system does not operate effectively: “When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.” (Emphasis added)

[4] But I haven’t gone looking either.

[5] Alice Woolley has argued in Slaw that asking a prosecutor to “do justice” doesn’t really provide genuine guidance to a prosecutor who is to act as a strong advocate within the adversarial process.

[6] That said, I wonder if the implication of such guidance might be that full compliance with the conduct rules is not otherwise required.

[7] Groia v. Law Society of Upper Canada, 2018 SCC 27 at para. 55

[8] Groia v. The Law Society of Upper Canada, 2016 ONCA 471 at para. 108

[9] As always, this column reflects my personal views. It is written to raise rather than resolve the issues discussed.

Comments

  1. Mr. Mercer,

    I’ve just found this column and before even reading it properly I feel inclined to offer you something.

    My views on the legal system are fairly well known. Anyone who isn’t familiar with them can start by searching the record here on slaw.

    Some time ago I attended what was billed as an “Irish Wake” for a former lawyer. It was attended by a good many SRL’s, some of whom I’d encountered before. Someone I did not recognize approached me and asked if we could subsequently get together. He was evidently another SRL. It took some time, but we recently sat down together and I learned a little about his legal issue. In the course of the conversation he used this term “sharp practice”. I was somewhat bemused to hear an SRL use a term I consider to be a euphemism.

    He also mentioned that he attended the NSRLP’s 2nd Dialogue, so now I know where he picked up the term.

  2. Hello Malcolm,

    One of my fondest memories of the 2nd NSRLP Dialogue, is the precious hour you and I bantered about access to justice while waiting for our flight back to Toronto.

    While I was not at that session on ethics and sharp practices, it was on display tonight.

    Majority of Amici Curiae battered clients are women. But not always.

    A paralegal team listened to a male SRL recount how his wife used lawyers to pummel him into submission just so he could see his daughter.

    My heart sank as he recounted the how the lawyers hurled one tactic after another as the paralegals drafted his affidavit.

    It struck me that SRLs have conditioned themselves to bullied by lawyers as the price of self-representation.

    Sharp practices have no place in ethical dispute resolution.

  3. Mr. Budgell:

    The phrase “sharp practice” has been around for a long time and is not, to my ears, a euphemism. My take is that it was a serious slur “back in the day” when the profession was smaller and mostly governed by social norms. I dont much use the phrase and dont recall who lead its use at the Dialogue. But it is useful in the discussion because it seems to include some conduct that is professional misconduct and some that isnt but is close. I wanted to explore both in my column and so the phrase was useful.

  4. While the term “sharp practice” has been around forever, there is no common definition of what it means. In some jurisdictions, lawyers tend to use “sharp practice” as an umbrella term that includes both (i) incivility/bullying and (ii) aggressive procedural tactics, such as taking advantage of minor mistakes by opponents. In Canada, the meaning of “sharp practice” tends to be restricted to the latter. The Law Society of Ontario’s Rule 7.2-2 makes implicit use of an even more narrow understanding of the term, which stops short of including tactics going to the merits or involving the sacrifice of a client’s rights.

    Perhaps I read your article too quickly, but it’s not clear to me what definition the SRLs attending the Dialogue were using. I’d suggest using the term “incivility” in tandem with “sharp practice” if that’s what was discussed.

  5. Thank you for writing this Malcolm and beginning this important discussion.

    At NSRLP as you know, we hear frequent comments by SRLs that they see opposing counsel taking advantage of them.

    We do not investigate or adjudicate these complaints of course but we hear them often enough – and with my own ear to the water cooler banter among lawyers – to know that many have merit.

    On a purely procedural level, the use of tactics to “roll” an SRL are clear in the massive increase in summary judgment applications by represented parties against unrepresented parties and the 98% success rate (see https://representingyourselfcanada.com/nsrlps-summary-judgment-research-report/ and see also our new reports from the SRL Case Law Database https://representingyourselfcanada.com/case-law-database/)

    However I think that the real point here is less “what is sharp practice?” – which as lawyers we can get ourselves endlessly tangled up in endlessly without any real change – and more the cultural norms that Malcolm alludes to.

    SRLs are not “the same”as lawyers – they are not trained to practise “war” and they are emotionally invested in their own case (naturally). The vast majority of them (confirmed now by at least six studies) are in court alone because they cannot afford lawyers. They see behaviour by counsel (or judges) that demeans, patronizes and excludes them as yet another way in which they are treated unfairly. Not really hard to understand.

    If our goal here is to address this growing undermining of the reputation of the legal system and public confidence in the integrity of the profession, we need to think about the problem differently.

    Not “does that behaviour fall within a definition of sharp practice?” (as an SRL would point out, a lawyer-made term)

    But “can the profession make it clear to the public that it takes very seriously discourteous behaviour by lawyers and ways in which they exploit the ignorance and vulnerability of SRLs?”

    For this reason, while I think that this column is an important milestone I would propose we talk more about (and Malcolm knows I think this!):

    1. How the LSO could make a public statement – even if it is “vague”in legal terms – that clearly calls out lawyers taking advantage of and being this discourteous towards SRLs
    2. Consider commencing serious investigation at some level BEFORE the end of an action because these issues often cannot wait for SRLs. The % that are “tactical weapons” will be heavily outweighed by the genuine and legitimate complaints being made by SRLs
    3. Consider appointing an SRL Ombuds

    There is a lot more to learn here and I propose that we think about this issue from the perspective of those who are most negatively affected ie SRLs.

  6. Excellent ideas from Dr. Julie MacFarlane who has extensively studied the SRL phenomenon.

    Please see my comment to Mr.Mercer’s article on the NSRLP Facebook page. I placed a formal complaint with the LSO about sharp practice. I wasn’t looking for any compensation or appeal, just an apology. None given.

    I think an SRL ombudsman would be a good idea. You can’t understand this problem til you’ve walked a mile in our shoes.

  7. The reference to the term Sharp Practice was raised at our break-out session at the NSRLP Dialogue Event held at the University of Windsor this fall, 2018. I am one of several SRLs who raised this issue at that discussion.

    Albeit, I am disappointed by the tone of the article and implied acceptance that Sharp-Practice is simply part of the litigation game, I am grateful that Malcolm has bravely stepped forward to open the door of discussion among the legal community.

    Whether the legal community likes it or not SRLs are here to stay. We simply cannot keep dolling out thousands to hundreds of thousands of dollars and be expected to remortgage our homes, cash in our RRSPs, spend more than our yearly income, or deplete our life savings, if any, to pay for services that many of us have not received – from our perspective – as value added for dollars paid.

    The absolute inefficiency of service and legal abuse many have experienced is very real, “allegedly”.

    So here we are, home-schooling ourselves on law – if we are lucky enough to even find the information which has been conveniently shrouded in code and buried in a locked treasure box, 6 feet under an isolated tropical island occupied by venomous snakes, that is not even identified on the world map.

    In our quest for information and self-advocacy, many of us liken our experience to being held at pistol point, blindfolded, bound and then beaten with our hands tied behind our backs, then told we must walk the legal plank because we “chose to self-represent” so, tough luck and watch out for the sharks below.

    I have just gotten off the phone after a lengthy discussion with another SRL from OUR community. She made a perfect analogy of Sharp Practice being likened to an NHL hockey game where players, as part of the game, physically pummel their opponents, often causing serious injury.

    As an example, my fellow SRL referenced Sidney Crosby, who suffered a serious concussion as “part of the game” and who, immediately upon his return to the ice after recovering, was tactically targeted by the opposing team and deliberately body slammed back into the boards, resulting in yet another brain injury and ultimately removing him from the game.

    This is how we build healthy communities? By playing a dirty game? Then the “system” expects the “public” to have faith and trust in the very system and industry that has abused them? Because “that’s how the game is played”? A game of “war”?

    My SRL friend went on to say that the World Cup Hockey teams are not permitted to play the same aggressive game as their NHL super heroes do. Yet, World Cup Hockey is highly competitive and draws international attention and respect for the same game but played on merit and skill rather than dirty tricks.

    The SRL community and legal consumers across Canada want the legal profession to “clean up your game”. If you (lawyers) have a solid case (and even if you don’t) there is no need to beat the financial, psychological and physical crap out of your opponent, particularly a vulnerable SRL.

    You are making us sick. Literally.

    I quote from the Legislative Assembly of Ontario’s website referencing Bill 14, Anti-Bullying Act, 2012, designed as a result from the realization of the damage that school yard bullies cause. I have taken liberty to slightly change the wording, as follows:

    “Bullying, particularly in [law], has become an increasing problem in Canada.
    Victims of bullying have suffered mental anguish, bodily injury and even death at the hands of their tormentors.

    Bullying can leave a harmful and long-lasting mark on its victims. It can leave [Canadian citizens] with painful emotional and mental scarring and a lifelong struggle with self-esteem [as well as lifelong consequences resulting from financial abuse such as asset stripping].

    Bullying can therefore impair the ability of a victim to contribute meaningfully to society and to function normally in the victim’s family environment [and community].

    Bullies suffer as well, since bullying may be indicative of deeper psychological and emotional problems” [Emphasis Added].

    Myself and others within the Self-represented Litigant community couldn’t agree more.

    Allegedly.

  8. As a simple person I ask myself what would have most helped me had the system been inclined to do so. I have read many times that the point of litigation is to tell our stories to a neutral arbitrator, who weights the facts and renders a fair and reasonable decision to make injured parties whole again, not better and most certainly, not worse.

    The proper use of a publicly funded court system for it’s citizens who cannot afford much needed counsel, should dispense with the ceremony and meet people face to face at a common table, ready to hear the facts in a manner that allows civilized people to resolve their grievances in a timely manner so we can all move on with our short and precious lives.

    In lieu of outsmarting people and dismissing them on procedure, the tool most suited for doing so is mandatory upfront JDR where both sides can tell a Judge what happened in there own words. Points of contention would need to be proven in subsequent meetings with each side putting their best evidence forward. If discussions came to an impasse, they could be dealt with in a trial. This isn’t rocket science of course; its basically rule 1.2(1).

    If the goal of the court is to help solve human problems, nothing about how we are currently addressing that public need, will ever get us there. We can’t begin the process of hearing people in a hostile, adversarial environment, where people treat each other like enemies. No good can come of such a system and typically, no good ever does.

  9. Hello Malcolm

    You state that it is essential to Canadian legal ethics for advocates to resolutely advance their client’s interests SUBJECT TO ETHICAL OBLIGATIONS INTENDED TO ENSURE THAT THE ADMINISTRATION OF JUSTICE WORKS PROPERLY.

    That is a very important qualifier, but how does it play out in an adversarial system where one side has significantly more resources than the other? How can you tell if a lawyer is breaching their ethical obligations when you can’t get access to documents because they tie you up in procedural details? or try to ‘outspend you to victory’? Joe and Jane Average can’t afford legal representation. Period. They are certainly not going to have the resources to sue a LAWYER over unethical behaviour- so there is no check there. They can turn to the LSO Complaints system but, for a complaint system to be effective, we need to have a common understanding of what constitutes ethical behaviour…..Well, let me tell you a story about that.

    In February 2015, I complained to the LSO that :-
    (i) the lawyer for my elderly relatives had written Wills and Powers of Attorney which had severely disadvantaged the surviving spouse and the lawyer had subsequently acted against the spouse’s interest in favour of the Estate Trustees.
    (ii) following the death of surviving spouse, the lawyer had misappropriated $60,000+ from her trust account for the estate where the Trustees had a 1/3 share to pay the expenses of the estate where the Trustees received a 1/2 share. This significantly enriched the Trustees and was done despite my specific objection.

    My complaint had substantial supporting documentation, including copies of the lawyer’s own trust statements showing the improper withdrawals. I also waited to submit the complaint until after we had signed Minutes of Settlement so no legal action was pending. The review process should have been straightforward.

    I thought these were black and white ethics violations but the Investigations section cogitated on it for almost 3 YEARS.

    In the intervening time, there were more problems, so in April 2017 I went back to court to get the Minutes of Settlement enforced. (I advised the LSO of this.)

    The documents which I received as a result of this action showed that the litigation lawyers who negotiated the settlement had accepted $25,000 in misappropriated funds for their fees! They had also withheld information that a further $30,000 in misallocated/overlooked funds had been identified (all of the errors had favoured the Trustees) and that there were $25,000 in unpaid taxes. During the negotiations I had queried these matters and the litigators had advised- stridently -that the Trustees had acted appropriately in these and all other matters.

    In May 2017 I put another complaint went into the system. This time about the litigators.

    The estates were only $200,000 each, so all of this legal action was chewing through the inheritance. The Trustees were covered for their expenses since the Wills had typical boiler plate indemnifying them for everything but fraud but I was paying directly- (in fact the new litigation attorney for this action made a particular point that it was the Testator’s intention to absolve the Trustees of liability-)….so the ‘outspend to victory’ tactic was very much in play.

    In November 2017, the first complaint went to a Regulatory Meeting. The Meeting found that the lawyer had not acted appropriately in drafting the Wills, had not adequately checked for capacity and had acted improperly in the use of her trust funds opening herself and her law firm to legal action. (!!!) So,….the LSO waited until after my follow-up legal action before making public a finding which could have called into question the Testator’s intention to absolve the Trustees of liability. (In their zeal to ensure the LSO didn’t put a thumb on the scale on my side of the dispute, they put both feet on the scale for the lawyer’s side.) The misappropriation of funds which allowed the ‘outspend to victory’ tactic to succeed got a Tsk Tsk and a warning not to let it happen again since this misuse might give me grounds to sue the lawyer and her firm….(Yeah. right. Reality check anyone?)

    The complaint about the litigators was closed this month with no action taken. It seems that litigators have no care and less responsibility- Rules 7.1-3 and Rule 3.2-7 don’t apply. It doesn’t matter that they knowingly accepted misappropriated funds because they weren’t in charge of the administration. And for reasons unexplained it is also all right withhold information in settlement negotiations….

    So I haven’t had positive experiences with the Complaints system. In my opinion, if this is the acceptable standard of conduct, any tweaking of Rule 5.1 in the model code is just putting lipstick on a pig.

  10. Just to clarify one point in my previous post:

    I had legal representation so I was able to dodge the procedural bullets which are used so effectively on SRLs. The point of my post is that procedural sharp practice is just one layer of the problem. If you overcome the procedural issues, there are more behaviours which I consider sharp practice but which the LSO Complaints system- and the lawyers involved- regard as ethical practice. We have completely different understandings of what the cultural norms which Malcolm refers to are- and that is something which needs to be discussed. So, while I don’t agree with your assessment of the problem Malcolm, thank you for being willing to open this discussion to the general community.

  11. Hello Malcolm,

    Thank you for your post, and providing this opportunity for dialog on “sharp-practice”.

    I wasn’t at the SRL conference, perhaps because my matter is currently awaiting leave to appeal at the Supreme Court of Canada.

    I first heard the term “sharp-practice” used recently and confess, I thought it included things like making false affirmations and fraudulent misrepresentations to the court, both of which happened multiple times, in my case.

    In my case, it was far more than just the lawyers, it was whole system! Sometimes, they wouldn’t even stamp my material when I filed it in person!!

    I went on the court record about some of my challenges.

    Are those sharp-practices, by courthouse staff, when they misfile your stuff, or file it without mentioning all the errors, while they spend hours at the counter, helping the lawyers?

    That was before the Ontario Court of Appeal, where the Registrar instructed me to amend and put my motion created to be heard by the panel, for hearing by a single Justice. The motion was then set it down for direction.

    The direction – you should have put that motion in front of the panel, costs in the cause of the appeal.

    Is that a sharp-practice?

    There are several things that crossed the line in my case, in my submission of course, but this one was the meanest since it sought to take advantage of the court. One of the lawyers mislead the court, ask the court to take judicial notice that I was not using a case correctly, that “Westerhof” didn’t stand for what I claimed it did.

    Is that sort of thing considered a “sharp practice”?

    There are very real people being harmed by our judicial systems, TODAY!

    Hopefully dialog, will lead to ACTION, and RESULTS!

    Respectfully,

    Barb Kueber, SRL.

  12. if the lawyer I was opposing had not used sharp practices,, I might not have been summary judgemented out. I handed out notices for all parties to attend the discovery, I booked and paid for the room. everyone was given exactly 2 weeks notice, on the very day of the discovery,, I found out that the file had been transferred out to another district for a motion to dismiss. on the very same day as the discovery was set for, I was not informed. naturally, as I was not there, he won the case, and had it dismissed with costs. no discovery ever occurred. when I refiled, and provided proof of this to the court,, the judge completely disregarded my documents. that is when I was summary judgemented out and declared vexatious. That is how my case was lost. criminally in my opinion. And with no examination of the expert evidence the court was relying on. no one seems interested in how illegal this seems to be. No one even commented on how unethical it was,

  13. An Example:
    1. Lawyer Rule 2 request “By Hand” to Superior Court Justice to dismiss a Small Claims Court Claim
    2. SRL fearing Complex Costly higher court files Discontinuance.
    3. Superior Court Justice Endorsement “May bring Motion To reinstate – context frivolous & vex”
    4. SRL fears motion in Superior Court files new claim with added claim for Rule 2 request
    5. Lawyer send SCC Deputy Judge Rule 2 request.
    – Lawyer mentions Notice of Discontinuance, does not mention endorsement
    – lawyer says Rule 2 request “By Hand” to Superior Court Justice was a “mistake”
    QUESTION
    Based on the clear breach of Rules of Superior Court and the Small Claims – what “sharp practices” are involved in this case?
    Thank you for any thoughts….

Leave a Reply

(Your email address will not be published or distributed)