This blog is the second in a series in which lawyers (and other justice professionals) ask self-represented litigants a question which SRLs try to answer – and vice versa. See the first exchange here.
Randi Druzin is a journalist, author, former SRL, and current member of the Access Revolution Blog Steering Committee. Rob Harvie is a family lawyer in Alberta, and a former Chair of the Alberta Law Society Access to Justice Committee. He is currently the Chair of the NSRLP Advisory Board.
In this blog, Randi asks the question and Rob answers it.
Randi:
Here is my question Rob.
Many SRLs have encountered dirty lawyers. I know of a trial lawyer who submitted a false confirmation form to the court and later told an SRL that an interlocutory motion had been cancelled when, in fact, it had not. The court was made aware of both these instances but did nothing. Based on their experiences, many SRLs will tell you that the Law Society also fails to take lawyers to task for unprofessional conduct. Why does the legal community tolerate reprehensible behaviour by lawyers? I ask because, in my opinion, SRLs cannot have access to justice as long as they are victimized by unscrupulous lawyers.
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Rob:
Thanks for your question Randi.
Your complaint would likely be met by many lawyers who would respond:
Many lawyers have encountered dirty SRLs. For example, I know of an SRL who threatened to kill me to try and force me to drop my representation of a client responding to years and years of physical and emotional abuse. The police were made aware of this threat which was verified by a Court clerk, however, they did nothing. Based upon many lawyers’ experiences, they will tell you than there are too few controls on reprehensible SRL conduct. Why does the NSRLP tolerate reprehensible behavior by SRLs? I ask because, in my opinion, SRLs cannot have access to justice as long as they are victimized by other SRLs who waste court and represented client resources with improper and vexatious conduct.
This comment is slightly facetious – but illustrates, in a very real way, the disconnect between lawyers and SRLs and the public generally. In my experience, the vast majority of lawyers are dedicated and ethical professionals who do their best in a difficult job to represent their clients to the best of their ability, and to respond to opposing parties as well with respect and proper ethics. However, a minority of lawyers rightfully gain attention when they step outside the bounds of proper conduct – and in the process, do great damage to the reputation of our profession by perpetuating the stereotype of the “sharp and unethical lawyer”.
In exactly the same way, I would suggest, the vast majority of SRLs are reasonable people trying to find their way in very difficult circumstances to resolve their legal issues. However, the few who engage in questionable conduct create an impression that leads to the unfortunate stereotype of the “crazy SRL”.
Regarding the profession “policing its own”, as a Bencher in Alberta I have sat on disciplinary hearings. I have disbarred lawyers for offensive conduct. In Alberta, and to my understanding in all other jurisdictions, disciplinary hearings are overseen by lawyer and lay (public) members of hearing panels. I have found in most cases that lawyers are more critical and harsher in their treatment of lawyers engaging in misconduct than lay members of those hearings. So, I find it difficult to fully accept the “fox guarding the henhouse” criticism – that lawyers are protecting their own. Obviously there are always exceptions. Law Society hearing panel members, like judges, are human and they make mistakes. And those mistakes become amplified in the public sphere when they do occur, and again, this minority perpetuates a broader stereotype of lawyers protecting their own.
Lawyers work under a lot of stress and they work with people who are also under extreme stress. When they are faced with SRLs who engage in vexatious and offensive conduct, they often adopt biases and stereotypes – and these make them less likely to be objective in how they assess complaints from SRLs. Keeping in mind that judges are all former lawyers, it is my experience that judges harbor those same stereotypes as well about SRLs.
The good news, however, is that the efforts of the NSRLP and the gradual increase in other SRL resources have made growing numbers of SRLs more effective and less emotionally charged in asserting their interests in court and in dealing with lawyers on the other side. This serves, over time, to diminish the prevalence of conduct that would reinforce negative stereotypes of SRLs. At the same time more lawyers, like myself, share their views that we should treat SRLs with respect and civility, which serves to create a more effective working relationship between lawyers and SRLs – and, again, serves to diminish negative stereotypes lawyers and SRLs have about each other.
Is this a perfect answer? No. Does misconduct go unchecked on occasion by regulators or judges? Almost certainly. However, my sense is that through the efforts of organizations like the NSRLP, a better working relationship can be established between lawyers and the public who are using the legal system, to their mutual benefit.
These are just a few thoughts in response to your question Randi – keeping in mind, I could likely write a book on the delicate dynamic between lawyers and those who are not lawyers (including their own clients) in the justice system.
I think there will be many who respond here. My case might be one of those outliers you refer to but I think not. In all my encounters with lawyers, from age 16 to 60, I have met one ethical and fair lawyer out of 7. That is not including the number of lawyers who have turned me away because there is no chance I could win. My most recent sharp lawyering experience is with worksafebc and WCAT here in B.C. After I laboured over my amended pleading and included medical evidence asking for accommodation, they both refused my documentation and denied it was even filed, despite the front page court registry stamp and notarized ion by the court. This tactic was designed to stop me in my tracks.now what do I do? And these are two lawyers who lead their departments. When I wrote a comprehensive complaint about another lawyer clearly in conflict to the Law Society, my complaint was dismissed. They felt the entire process was enough to remind that lawyer that he failed to adequately inform me that I had no chance of winning. As though my complaint was simply sour grapes, when it was not. So he keeps on sharp lawyering. I am so disappointed that I am not seen as a human being first. Instead I am a liability to his client and he will use any tactics possible to shut me down. And believe me, it doesn’t take much for him to win. Lorelei Rogers, severely and permanently disabled SRL
From my 12 years experience as an SRL fighting the so called “justice” system and complaining numerous times to The Law Society, I can say that unless a lawyer is caught with his pants down having sex with his client in his office; stole from a client’s trust account; publicly defamed a lawyer/judge; ignoring a request from The Law Society; ignoring an opposition lawyer; lying about a motion hearing date being postponed, etc., The Law Society will most likely dismiss a complaint against that lawyer especially if he is high profile, a Law Society bencher, a member of a large law firm. The small sardine lawyer (in real estate, divorces) will be disciplined/sanctioned as a sacrificial lamb, i.e. the cost of doing business to show the gullible public that lawyers do get slapped on the wrist at times.
Caveat emptor to all would be plaintiffs out there contemplating hiring a lawyer or as an STL wanting to sue your former lawyer for legal negligence especially if the amount is $200,000 and above. Your former lawyer’s professional liability insurer (The Law Society) will vigorously fight you tooth and nail no matter how long (decades) it will take and will spare no expense hiring a local bigwig lawyer to fight your claim. They are aided by motion, trial and appeal judges, who all dislike their annual insurance premiums being increased should you win not to mention the national embarrassment (via press media, local gossip and Internet) of an SRL beating them.
Like prominent SRL Donald Best said “sometimes, it is best to drop the matter ratter than to sue as an SRL”.
Yes, I concur about high profile, award winning, article writing (how to legally subvert the law for your client), lawyers getting away with it. That is my unfortunate experience. And I went to their standards to make sure what I was complaining about was truly that serious. My time is important too and I do not use it to be a “malicious busy body”.
Dear Rob,
We need action! I was hopeful you could and would advise Randi and many of us how to address counsels or parties who lie and mislead the court. Do you offer to LEAD major changes to the Family Law process and procedures, e.g. to move away from the “he said/she said”? Know anyone who is leading required changes NOW?!! How is it that spousal abuse in the court process is not addressed after separation?
Sadly, just more of what we/I already know and experience both with and without full/record legal representation 8+ years and counting.
Please tell us how/when to bring criminal charges against OP and/or OC for perjury and continuing to “mislead” the court. Criminal court? Can a family case be moved to Criminal Court?
Are we wasting our time here on NSRLP and in Family Court? Our taxes pay for the court staff, judges, etc. Perhaps only legal firms, organizations and lawyers should pay. And insurance for claims against lawyers…does the public have access to a similar plan?
You and any and all are welcome to my second Trial. I expect more perjury, fraudulent conveyance in FSs, misleading the court etc. Hope to at least provide evidence and real experience for students and junior lawyers.
I expect no justice…only “just is” in Family Court…again.
p.s. My work has included major process changes and international anti-money-laundering, anti-fraud, etc., none of which seems to matter in Family Court.
The system is rigged, corrupt and ruthless. Everyone knows it. As for the rule of law….the rules are for those who rule.
My direct experience has taught me that some lawyers know independent legal advise is required for their elderly clients, will operate in conflict of interest, will refuse to safeguard the interests of the exploited senior, will refuse to assist as a friend of the court or to initiate mediation even when it is called for in the senior’s power of attorney. Some lawyers use standard forms with no accountability clauses so the power of attorney has unbridled powers. Some lawyers will not provide copies of the power of attorney papers to all the individuals named in the power of attorney or personal directive(medical) Other lawyers further exploit the vulnerable individuals who advocate for elderly victims by: delaying, overcharging and using a stunning array of tactics which includes: bait and switch, the “no show” in court, the $800 phone call, sending out a retainer letter with the word “MAY” or “PROBABLY” to alter the initial retainer a week before court appearance, padding the billable hours with secretarial duties, stringing emails to pad the bill, withholding critical information from their clients and the court, overestimating trial days, refusing to acknowledge or consider mediation, not answering correspondence in a timely manner, presenting offers of settlements with verbal threats. Often, the cherished family member has died brokenhearted. Inside it is a parade of rushed capacity assessments, and nursing home staff: their doctor, social workers, sparse rotating and largely unaccountable care staff, invisible nursing home directors, board of directors and company lawyers, those not in the bed who control the system. Be prepared for long waits for court action, guardianship applications, chamber dates all to maximize the billable hour. Systemic elder abuse.
I also have a tale of lawyers enabling elder abuse. And yes, it is systemic- banks, hospitals, the CCAC, lawyers and the LSO all actively look the other way claiming ‘privacy’, ‘privilege’ or giving the ultimate brush-off of ‘take it to court’. There is as big a problem with the issues that self-regulating agencies WON’T look at as there is with their handling of the complaints which are adjudicated.
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In my case the LSO (after conjugating for 3 years) found that my elderly uncle’s lawyer had not taken proper steps to ascertain his capacity before writing sweeping powers of attorney and had acted where she had a conflict of interest, (see 23.11.2017 Regulatory meeting).
However, the LSO completely ignored what I considered the far more serious complaint -that 9 months after writing this PoA, the lawyer intervened with the CCAC on behalf of the new PoAs to have HER CLIENT expedited into the first available nursing home. She didn’t even contact him to ascertain his wishes. (He had Alzheimers but was otherwise fit and healthy and was expressing a wish to remain at home.) My sister and I used our own money to keep him in his home. The PoAs used HIS money to pay HIS lawyer to help put him into care AND to litigate these matters.
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The CIBC was no better. 6 months prior to signing the lawyer’s PoA, my uncle had added another of these relatives to a bank power of attorney. He signed the form in the wrong place, couldn’t print his own name and someone else filled in the bank account details. According to the lawyer for the CIBC, this is acceptable practice.
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And to cap it off, several of the lawyers who were involved in this imbroglio give LSO approved training courses on recognising elder abuse.
we may not be able to sue judges, but we sure as hell can sue their employers, unless we do something about this,, we will get more crime from them, I had the opposition lawyer transfer the file out to another district, to be heard on the exact day i had booked the courtroom for examination of evidence, I was NOT NOTIFIED OF THE FILE TRANSFER, the proof of this,, i provided the court a copy of my paid for room booking, The judge did nothing,, said nothing,, ignored it completely, Then,, because my case had already been ruled on and dismissed with costs, i wasn’t there, i was waiting for them to arrive for examination of evidence, I WAS DECLARED VEXATIOUS, thrown out of court and told not to come back, This is criminal, This is not the administration of justice, It is a crime, When if not now,, do we take action on behalf of all self representeds to stop this charade,
I’ve had a few lawyers over the years and 2 out of 5 were excellent, the others were inept and took my money, I had to fire them. Family lawyers seem to be bottom of the barrel. If a family is bad, what is the client going to do, sue them? If a lawyer is terrible in the business world, the business people and corporations will not use them, no repeat business or referrals. I was remarried few years ago and my new wife’s lawyer created documents that were unenforceable in court! Then she had the nerve to charge fees again. I can find people at Starbucks who can create unenforceable documents. My first family lawyer lasted 2 weeks and I fired him for poor quality of service. Anyway not bashing lawyers, but seems family lawyers can work through one client at a time and do a terrible job and keep practicing leaving a trail of poorly represented, broke moms and dads. If they are reported, most times associations are there to protect their members, not the public and so it goes.
i should also remind Rob, while all lawyers and judges have taken some sort of oath to uphold the law, Their impression of the self represented as “crazy” is irrelevant, You have sworn to uphold the law,, so uphold it, We,, the self represented,, have taken no oath toward you,, lawyers and judges, We are simply trying to, in the best way we know,, put our cases forward, If you have a problem with that, it is NOT an excuse to disregard our rights and permit attacks on our rights by dirty lawyers and judges,
Bad behaviour is not conducted without cause nor reason. Mental health issues, invisible disabilities, motive, or both may be driving factors. SRLs, lawyers and judges are not immune to such human characteristics.
* Gaslighting.
* Being told “the Rules” or “law” will be applied when there is no Rule or Law supporting the conduct or position.
* Strategically delayed disclosure or serving and filing of documents.
* Court files “placed in [offsite] storage will take two days to order up….” thus party unable to review file expeditiously.
* SRL barred from attending lawyer office to serve docs personally, “due to [SRL’s] conduct”. When asked to be specific, lawyer remains silent.
* Countless letters, Law Society Complaints and Court Proceedings in order to eventually receive ‘some’ Solicitor Trust Account documents.
* Lawyer claims to have acted for a SRL despite SRL being clear they were acting as a SRL. No signed retainer agreement produced. Thorough review of file indicates no retainer engaged.
* Law clerk swears affidavit instead of party to proceeding – thus no “cross-examination on affidavit” of the opposing party.
* Opposing counsel requests adjournment but does not file the adjournment with court.
* Non-verbal communication from the Bench is not captured by court transcripts or recordings unless party describes it into record. Not all proceedings are recorded.
Such alleged “bad behaviour” requires sophisticated training and legal know-how. Few SRLs have the skills or know-how to realize sharp-practice might be happening, let-alone apply it themselves.
Above are thoughts, alleged, and not to be deemed as legal advice.
reply to anonymous above: “Law clerk swears affidavit instead of party to proceeding – thus no “cross-examination on affidavit” of the opposing party.”
This is certainly a common practice for getting uncontested facts into the record. However, this is inappropriate other matters especially where the information on knowledge and belief in the affidavit comes second hand from the party/witness involved in disputing contentious “facts”.
Randi’s question is a good one. Thank you both.
What the SRL sees as unfair may seem perfectly ok and legal to a lawyer or judge. If lawyers are working for large corporations and know they can win by using questionable tactics, why not? A win is a win, and they get paid for winning, not losing. To pit a large legal team against a self-represented litigant should never be happening in a courtroom, in my opinion. Its not a level playing field.
My own experience as an SRL, and many court sessions I’ve watched with SRLs (in Ontario) over the years has brought me to this conclusion. If SRL’s are up against top lawyers forget it.
No matter how well-prepared they are, SRLs don’t have cross-examination skills, or skills in searching, interpreting, or applying case law; they are not familiar with procedural tricks of the experts. They often take weeks off work to appear in court. Lengthy delays are inevitable, giving top lawyers another tactical advantage.
Often what we as SRLs think is unfair behaviour by lawyers or judges, is just fair game to them. To me, the fact that a lawyer changed his witness list at the last minute, engaged in mocking and badgering cross-examination, excluded my husband from assisting me with with cross-ex, refused to honour a summons because the wrong form was used, seems not professional or fair when dealing with SRLs. Nor is delivering 500 pages of case law to an SRL the weekend before the trial.
After an official complaint at the Law Society, I was told lawyers are allowed to do this.
We come to court to solve problems, not make more of them, and create financial hardship for ourselves. We need alternate forms of fair and balanced dispute resolution, with representation for both sides.
The terms “level playing field” and “equality of arms” have often been used to describe the promise of the courtroom. Mr. Harvie suggests that it’s fair to consider self-represented litigants and professional counsel as combatants who are supposed to meet, but sometimes fail to meet, the same standards – because they are equally armed and the combat takes place on a level playing field.
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I’ve done a lot of what I’ll call background reading over the years. One book in which I had highlighted a lot of text surfaced again. In the Public Interest – https://www.irwinlaw.com/titles/public-interest – was published in 2009. If the NSRLP doesn’t have a copy I recommend getting one.
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The overview there starts with an interesting statement: “The public has a right to be able to obtain legal assistance from someone who is independent of the state and the citizenry . . . . “.
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In fact that isn’t true. There is no such right. Irrespective of how much money you might have, if you approached every lawyer in Canada and found none that would assist you, there is no recourse. No one, no agency to turn to.
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One of the terms I highlighted in the book is “cab rank rule”. I suspect that many Canadian lawyers are unfamiliar with the term. It has some currency I understand in the U.K. and Australia. It means that a barrister (in Canada all lawyers are both barrister and solicitor) cannot arbitrarily decline to serve a prospective customer. Whether that principle is applied in practice in the U.K. or Australia I don’t know. It certainly isn’t in Canada.
since we are all aware that these unscrupleous lawyers are there, and operating,, and then some become judges, and are the same, Why is the justice system dead to the idea of stopping this disentegration of the law,
PERJURY has gone, because PERJURY is condoned, unexamined, ignored and has been normalized by THE BENCH.