Malcolm Mercer, LSO Treasurer
This week’s conversation is with Malcolm Mercer, the Treasurer of the Ontario Law Society and the elected leader of the legal profession in the province. Julie draws Malcolm out on critical issues for the self-represented including: how should lawyers treat and work collaboratively with SRLs? Can there really be a level playing field where one side has expert assistance and the other does not? How does the duty to zealously represent a client work where the other side does not understand the law? Does the Professional Code of Conduct apply to lawyers’ relationships with the public, as well as other lawyers? What about an SRL Ombuds? And what about that much-maligned public awareness campaign, “Our Society is Your Society”?
Related:
NSRLP’s 2015 Summary Judgement Research Report
NSRLP’s Preliminary Case Law Database Report – See page 7-10 for a discussion of “vexatiousness”
Malcolm Mercer’s columns for Slaw
In Other News:
The 2019 Rule of Law Index, released in February, provides a comprehensive look at the state of the rule of law in 126 countries around the world – overall, more countries declined in their scores than increased; last Thursday the Ontario government announced that Legal Aid Ontario will have its budget cut by $133 million, about 30% of the entire funding provided to LAO; and finally, an update about past podcast guest Prof. Benny Tai, who last week, along with other pro-democracy activists, was found guilty of public nuisance as a result of their protests in 2014 where they called on China to have free elections in Hong Kong –sentencing has been scheduled for April 24th, and Professor Tai could be held in prison for up to 7 years.
World Justice Project’s Rule of Law Index (Slaw)
Legal Aid Ontario funding cut by 30% (CBC)
Benny Tai on the podcast last year
Jumping Off the Ivory Tower is produced and hosted by Julie Macfarlane and Dayna Cornwall; production and editing by Brauntë Petric; Other News produced and hosted by Ali Tejani; promotion by Moya McAlister and Ali Tejani.
Maybe you should start with the question as to how any lawyer can be kept accountable when the Law Society owns and controls LawPro that defends unethical and negligent lawyers. Any thinking person can see that (a) the Law Society will never fairly adjudicate any complaint of its members and thus we have wholesale and runaway fraud, negligence, collusion and corruption, and (b) the Law Society will rarely find against a lawyer, else their subsidiary corporation LawPro ends up paying out.
The ‘system’ is rotten to the core…lets get rid of it and install common law courts with judges elected by the People who have to live with their decisions. Lets stop trying to make a silk purse out of a sow’s ear.
You mentioned that there has been a 500% increase in motions for summary judgement brought by lawyers opposing SRLs, and further, that these lawyers are winning 95% of the time, in some or most cases leaving bewildered SRLs wondering what happened as their cases are thrown out of court.
Your statement: “I mean, those figures are concerning, aren’t they?”, seems to indicate that you believe a lot of these losing SRLs should have had more of an opportunity to put their whole case before the judge, or worse, that you believe that a lot of these SRLs should have gone on to win their cases.
One question that comes to mind is what percentage of cases brought by SRLs over the same time period in the same jurisdiction(s) did not experience a motion for summary judgement brought by the represented side?
You really seemed convinced that there’s something wrong here. I tend to believe you.
However, I would have appreciated an example or two. Does the opposing lawyer mumble something in Latin to a judge who, seeing the SRL doesn’t have a clue, takes this opportunity to end this SRLs time in that court?
A clear example of something you see as wrong that illustrates an increasing trend you see that will in the end put the justice system into even more disrepute than it already is, put to Malcolm Mercer, would have required him to say a bit more I think….
I recently learned that in Ontario that a summary judgment motion can be introduced by a defendant in Small Claims Court which could nip an SRL’s case in the bud.
Also, there are lawyers who reasoned that the numbers of SRLs could be decreased if the rate per hour is lowered to an affordable level, but they didn’t say specifically what that rate was for middle class Canadians who aren’t eligible for Legal Aid (Legal Aid will not take on a civil case even if you are financially destitute). Suppose the rate was lowered to $150/hour, law firms will then hand the case over to a junior associate who bills the client for twice the hours a partner at $400/hour would have billed. The final legal cost wouldn’t have been lowered.