RSS FeedAccess to Legal Services: Lessons from the Medical Profession (Part 2 of 3)
This is Part 2 of a three-part series on the topic of access to legal services. In Part 1, I argued that the traditional approach to ensuring access to legal services (that is, increasing the number of lawyers doing legal aid or pro bono work) is inadequate on its own. The reason for this is that there is a fundamental mismatch between the number of practising lawyers and the demand for legal services in Canada. Moreover, it is unlikely that increasing capacity in law schools will be sufficient to meet the shortfall. For these reasons, governments and lawyers need to pursue alternative strategies to ensuring access to legal services.
In today’s instalment, I want to turn my attention to the history of health professionals (particularly the emergence of professional nursing). As I will argue, the health services sector has long faced similar challenges to the legal community in terms of balancing the need to increase the availability of service without compromising quality of service. However, unlike the legal profession, the health sector has embraced a realistic and flexible strategy that has served it well for more than 100 years. The premise of this strategy is to reject the proposition that doctors are the exclusive providers of health services; instead, the health sector embraces a myriad of other health professionals including nurses, pharmacists, physiotherapists, and others. As I will argue, this provides an excellent template for legal services, particularly insofar as it provides for a robust model of oversight, accountability, and quality control.
The legal and medical professions have always faced similar challenges: both are self-regulating professions characterized by specialized knowledge and skill in their respective fields and also by a responsibility to the community that overrides personal interest. In the name of maintaining high standards of service and professionalism, both lawyers and doctors have found the need to be restrictive in terms of which people are admitted into the profession. In order to become a lawyer or doctor, not only must a person follow a rigorous course of academic study, but also demonstrate practical skill, moral goodness, and respect for the profession itself.
Yet despite these similarities, the medical and legal professions have diverged significantly on the point of being exclusive service providers. Lawyers have been extremely hostile toward any attempt by outsiders to provide any kind of legal service or advice, resulting in a professional monopoly. In contrast, doctors have learnt to embrace a health services sector occupied by a diverse group of different health professionals. This raises two questions that I would like to explore. First, what caused the divergence between the professions on the issue of exclusivity? Second, which model has been more successful in terms of balancing concerns of access to service with concerns of quality of service?
I believe that the answer as to why the divergence occurred comes down to two major factors. First, health services are more “natural” in the sense that even non-professionals perform health services from time to time. Second, the great wars of the early 20th century created an incentive for the state to promote an expansion in the capacity of health services.
Human being have, in one sense or another, always performed health services. Even among non-human animals, there is considerable evidence for members of a species caring for one another and tending to each other’s wounds. This fact, combined with long-held assumptions about gender essentialism, meant that even during the rise of professionalized medicine, there were always people (especially women) performing services similar to those of doctors, whether for payment or in the home. By contrast legal services derive from social constructions such as the state, the rule of law, and a system of courts to enforce legal rules. These social constructions do not exist in nature; for that reason it continues to be uncommon for non-lawyers to look after each other’s legal affairs in the same way that we look after each other’s health and well-being.
The turning point in terms of the professionalization of non-physician health providers came in the early 20th century, particularly during World Wars I and II. Because of technological advancements, these wars were unlike any other in earlier human history in the sense that combat was more frequent and prolonged. In earlier wars, there were often significant gaps in time between battles as armies moved very slowly from place to place. As a result, soldiers with relatively minor injuries had more time to heal naturally between battles. In the early 20th century, gaps between active conflict were shorter and the battles themselves often lasted longer, meaning that soldiers with relatively minor injuries had less time to heal before being pressed back into active combat.
As a result of these factors, the states engaged in warfare suddenly had an interest in increasing their capacity to deliver medical services in conflict zones. Strategically, the side that stood the best chance of winning was often the side that was best able to patch up its wounded soldiers quickly and send them back into the field. One way to accomplish this would be to increase the number of doctors serving on the front lines in conflict zones. Unfortunately, such efforts met with two roadblocks. First, there was an extremely limited number of qualified physicians and it would be impossible to train more in a timely manner. Second, it would be difficult to persuade physicians making a comfortable living at home to serve in danger zones at a lower rate of pay (the conscription option carried significant political consequences and would be considered as a last resort only).
The solution to the shortage of doctors on the front lines was to turn to women. Women were ideal candidates to perform front-line medical services for two reasons. First, social realities and assumptions about gender essentialism meant that women were considered “naturals” at caring for others including the young, the elderly, the sick, and the wounded. As such, it was believed that it would be relatively easy to train women to treat minor injuries. Second, women had very limited work opportunities in that era, meaning that they could be paid extremely low wages compared to doctors.
When the wars ended and the men returned home, many of the women who had broken into the workplace during the war remained. Despite sexism and attempts to force them back into the home, the economic reality was that women’s lower wages gave them a competitive advantage in the market. It is no coincidence, then, that the early 20th century saw more and more women entering health services, primarily as nurses, but also increasingly as doctors. Unable to prevent women’s entry into the market, the best the medical establishment could do was to regulate nursing by creating formal qualifications, clear limits on a nurse’s job responsibilities, and standards for quality and competence. Some key dates in this period of professionalization include:
- 1901, when New Zealand became the first nation to regulate nursing nationally;
- 1908, when the United States Navy Nurse Corps is established;
- 1916, when the Royal College of Nursing was established in the United Kingdom; and,
- 1919, when the United Kingdom passed the Nursing Act, which provided for registration of nurses.
Over time, the gendered hierarchy of the medical profession began to break down, as more and more women became physicians and more and more men became nurses. While there is still a significant gender disparity in both professions, the gaps continue to narrow year over year.
The two factors that I have identified in the evolution of nursing have been missing from the history of the legal profession. First, it is uncommon for non-lawyers to contemplate providing legal services in the home; for this reason, we are more likely to think that the rigorous academic studies undertaken by law students provide the only sound basis for providing legal services. Second, there has never been a war in which the outcome depended in any significant way on the number of legal service providers on the front lines. Thus, if the legal profession is to follow the example of medicine, the lawyers themselves will have to reject their roles as exclusive service providers.
The next issue that merits attention is whether the fragmentation within the health services sector has, on balance, been more successful than the monopoly in the legal profession at balancing access to service with quality of service. I argue that it has, which is not particularly surprising given the crisis facing the legal community in terms of access to service.
The fragmentation of the health service has been so successful in industrial societies that it has increased both in scope and in scale at an extraordinary rate. As of 2008, there were 16,126 active practising nurses in Manitoba compared to just 2,272 licensed physicians. These health professionals are complemented in their work by thousands of others including pharmacists, physiotherapists, technicians, and scientists.
Like other professionals, nurses are self-regulated based on a public accountability model. In Manitoba, for example, Registered Nurses (RNs) are governed by the College of Registered Nurses of Manitoba, as established by the Registered Nurses Act and its subordinate regulations. The College plays a role in establishing the registration process to ensure quality and competence, establishing best practices and standards, helping nurses to meet those standards through continuing education, and enforcing rules through a disciplinary board. This structure should sound familiar to lawyers, because it mimics other self-regulating professions including law societies and colleges of physicians.
While there was initially some concern that nurses would be unable to provide the same high quality service as physicians, those concerns have largely fallen by the wayside in light of the high level of competence and professionalism demonstrated by nurses over the years. In fact, a 2004 Gallup survey revealed that a higher percentage of respondents expressed “high” or “very high” trust in nurses (79%) than in medical doctors (67%). For the sake of comparison, lawyers were among the least trusted with only 18% of respondents expressing “high” or “very high” trust.
In addition to vertical fragmentation (that is, tiers of hierarchical qualification), the health sector has also embraced horizontal fragmentation (that is, areas of specialization within each tier). In Manitoba, for example, there are several different types of nurses including registered nurses (RNs), registered psychiatric nurses (RPNs), and licensed practical nurses (LPNs). Moreover, registered nurses may obtain an extended practice or nurse practitioner designation, allowing them to offer additional services. The colleges of nurses provide detailed guidelines on the roles, responsibilities, and qualifications required of each different type of nurse, as well as disciplinary boards that enforce the standards for quality and professionalism.
This model is extremely flexible in that it simultaneously promotes both access to service and quality of service. While recognizing the need for well-defined qualifications and professional standards, it acknowledges that the completion of medical school may not be necessary in order to provide patients with certain types of services. As a result, it is easier to train and employ a larger number of nurses to complement the work of physicians and thus to increase the province’s capacity to deliver health services to the public at a lower cost than simply training and hiring more physicians.
I think that the legal profession can learn at least 3 important lessons from the evolution of nursing:
- it is possible to end professional monopolies and still maintain high quality of service, provided proper oversight and accountability measures are in place;
- a full and expensive professional education is not necessary in order to provide limited services within a well-defined area of competence; and,
- the cost of training service providers may be lower if that education is specialized rather than general in nature.
In light of these lessons, I think the conclusion to be drawn is that the lawyer monopoly must come to an end in order to meet the challenge of rising demand for legal services. By creating new forms of qualification that are less than those of a lawyer, we can create discreet new job classes that are qualified to perform a limited set of legal services.
In Part 3 of this series, I will explore some case studies that reveal that the fragmentation of the legal profession is already taking place; that is, there are already a significant number of non-lawyers performing jobs that include statutory and common law interpretation, providing legal or practical advice to clients, and even representing clients before administrative tribunals. Using these examples as a starting point, I will posit a non-exhaustive set of proposals to create new formal job designations that incorporate educational prerequisites, standards of competence, a code of professional conduct, disciplinary boards, and an accountability model that clearly delineates the limits of areas of competence of non-lawyers. Finally, I will address some possible objections to my proposals and discuss the practical realities of getting such proposals implemented in Canada.
Access to Legal Services: Lessons from the Medical Profession
This post is Part 2 in a three-part series. Links to the other portions are found below.
Crown liability for negligent release from jail
Father seeks compensation for son killed by pedophile
Bastien was out on an extended pass from a detention centre where he was serving time for several unrelated offences.
Three weeks after the slaying, then-public security minister Serge Ménard said Bastien shouldn’t have been let out.
Using a Norwich Order to Reveal Gmail Accounts
The Ontario Superior Court of Justice released its decision on an application in York University v. Bell Canada Enterprises this Friday. The case is based on an allegedly defamatory e-mail about the President of York University, Mamdouh Shoukri, saying he had “perpetrated an outrageous fraud.”
A group calling itself “York Faculty Concerned About the Future of York University” protested the appointment of Martin Singer of the new Faculty of Liberal Arts and Professional Studies, questioning his credentials and attaching a letter from other academics who did disclose their names.
But the University is more interested in the identity of the unsigned e-mail, presumably by York faculty, sent from a Gmail account, yfcfyu@gmail.com.
G.R. Strathy J. approved a Norwich order against Bell Canada Enterprises and Rogers Communications Inc. to disclose the identity of the account owners. A previous order had been approved against Google back in May, which identified the two ISPs as the holders of the information.
A Norwich order is a pre-action discovery mechanism that is described by Spence J. in Isofoton S.A. v. The Toronto-Dominion Bank,
Requests for Norwich relief are largely unfamiliar to Canadian courts. A Norwich order essentially compels a third party to provide the applicant with information where the applicant believes it has been wronged and needs the third party’s assistance to determine the circumstances of the wrongdoing and allow the applicant to pursue its legal remedies.
The 5 elements identified in this case for granting such an order include:
(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of disclosure.
[emphasis added]
The privacy interests of the alleged wrongdoer were overcome by the last element, the interests of justice, because of the applicant’s equitable right to information. Spence J. pointed to Alberta v. Leahy and Bankers Trust Orders (from Bankers Trust Co. v. Shapira) indicating that court orders can override confidential information, even for financial records, and Glaxo-Wellcome PLC v. M.N.R. that the privacy interests of alleged wrongdoers is somewhat diminished.
What is troubling about the latter citation is that the rationale used by the Federal Court of Appeal was that the information could not be considered especially sensitive since it had passed through several hands. Although the York case does demonstrate that multiple parties may be involved in identifying a defendant, many privacy watchdogs would be concerned that IP information loses its privacy value simply because it is shared.
However, Spence J. did point to other reasons why the privacy expectation may be overridden, because the information is limited by terms of the order for specific purposes and the use of this information is not absolute. Additionally, a strong case of fraud removes the possibility of a frivolous or vexatious application of the order.
G.R. Strathy J. also discussed the necessity of granting the order for York by citing GEA Group AG v. Ventra Group Co,
…there is no suggestion in the established jurisprudence that [necessity] is a stand-alone requirement for the granting of a Norwich order…
In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief.
…The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.
G.R. Strathy J. then pointed to a number of other ways that this information could be obtained without the Norwich order, including the pre-action disclosure in the now-infamous Cohen v. Google Inc. Although both ISPs had privacy policies for the customers, these could be overridden by s. 7(3)(c) of PIPEDA to comply with a court of law.
Given the recently ruling, and assuming it’s not overturned in the future, it’s likely were going to see more Norwich orders used for the purposes of identifying Internet activity.
Ontario AG responds to continuing Legal Aid boycott
The boycott of legal aid by the Criminal Lawyer’s Association continues. I reported a few days ago that the CLA would not endorse the government’s plan to inject $150 million into Legal Aid on the basis that the funds did not come close to making up for losses against inflation that criminal lawyers have endured since 1987 (among other reasons).
Below is the latest letter from Ontario’s Attorney General Chris Bentley in response to the CLA’s rejection of the plan.
—
Dear Member of the Bar:
As many of you know, legal aid has been an ongoing passion of mine, throughout my 25 years as a criminal defence lawyer and during my time in government. That’s why I was pleased to announce that the McGuinty government is investing $150 million over the next four years. This 21% increase to Legal Aid Ontario’s base funding means that Legal Aid Ontario will receive an additional $60 million in year four and every year thereafter. This investment means that the government’s contribution to Legal Aid will rise from $288 million per year to $348 million per year.
We understand that to get legal aid to a better place, we have to properly support lawyers.
This is the largest investment that the province has made since the beginning of legal aid. We are committed to ensuring that the poorest Ontarians get the legal support that they need, when they need it and in the way that they need it. I am confident that the Bar shares these goals. This investment will support poverty alleviation. It will also help drive significant reforms in our family and criminal courts—which will themselves help Ontarians needing assistance.
The transformation plan targets four key areas: creating a central role for legal aid clinics in poverty alleviation; fostering a faster, less confrontational and simpler family justice system; promoting justice effectiveness through the use of block fees; and improving the approach to big cases.
The members of the Bar, including the Alliance for Sustainable Legal Aid, asked us for two things: an additional investment and an assurance that they would not simply be presented with a reform plan that was a fait accompli. As a result, we will immediately establish an Advisory Group in each of five areas: family, clinics, large criminal case management, standard criminal cases and immigration law. Your advice as front-line service providers, on the advisory groups will inform how best to achieve our mutual goals.
There are a few parts of our announcement that I would like to clarify:
- We have been explicitly given direction to develop and seek approval of an indexation mechanism. This has always been part of our legal aid renewal plan. The implementation would take place in 2013 (our investment rises every year until then);
- We understand that appropriate support is required for service providers to assist Ontario’s vulnerable and are open to the Advisory Working Group’s advice on the best way to provide that support so that we get experienced counsel in family and criminal matters. There was a specific commitment to look at models such as the British Columbia big case model if the advisory group so advised;
- This historic investment in legal aid is not the government’s “opening proposal” as some have suggested. This is the single largest increase to legal aid funding ever in Ontario. In fact, it is one of the largest single justice sector investments in history. The discussion from here forward needs to be about how to make the funding work as well as possible; an over 20% increase to LAO’s base budget is unprecedented and significant in the best of times. It is extraordinary in these times.
- The Major Case Management Office is being created to provide the required accountability and quality control that the Bar has supported. The government is responsible to ensure that cases progress and that the rights of the accused are protected.
- Legal Aid is responsible to ensure that the accused who need counsel to defend themselves on serious charges but cannot afford them have access to counsel. To the extent that members of the private bar remain unavailable to do these cases, a large case office will have to develop the permanent capacity to do them. The capacity and role of this office, will, therefore, depend, on the availability of private counsel.
We are committed to a legal aid system that provides support to Ontarians when they are at their most vulnerable. This investment will ensure that a vibrant legal aid system is able to assist those in need, now and in the future.
Sincerely,
[Original Signed By Hon. Chris Bentley]
Hon. Chris Bentley
Attorney General
Balsillie continues his fight for Phoenix Coyotes
There are some new developments in the fight to bring the hockey team from Arizona to Hamilton.
Lawyers expected to grill Bettman
David Shoalts writes for the Globe and Mail:
… Judge Baum raised a third possible outcome early in yesterday’s hearing – no sale at all.
“I would say that’s more than a possibility,” the judge added, as an audible stir went through the courtroom. That came out in the morning while one of Moyes’s lawyers, Jordan Kroop, was arguing that the financial penalties owed to Glendale if the arena lease was terminated should be capped under bankruptcy law.
If there is no sale, presumably the Coyotes would remain in Glendale indefinitely with the NHL continuing to pay the losses, which were in excess of $60-million (all figures U.S.) last season.
A Different Kind of Employment Discrimination
Sometimes they can kill you softly with that love.
Access to Legal Services: Lessons from the Medical Profession (Part 1 of 3)
Back in June, I wrote a reflection on access to justice that evolved out of classroom discussions in a second year poverty law class. Having given further thought to the issue over the summer, I’d like to re-visit the topic in a series of 3 posts. The basic premise is that the legal profession needs an analogue to the roles of nurses and other non-doctors in the health care profession. That is, we need to establish a new categories of legal professionals who are not lawyers, but who have specialized training in a particular area that qualifies them to provide a limited set of legal services.
Before I begin, I must make two notes about terminology. First, this series of posts focuses specifically on access to legal services, which is just one of many components in access to justice. A full access to justice strategy would include, inter alia, increasing the capacity and efficiency of courts, promoting alternative dispute resolution, and a multitude of other initiatives. Such topics will not be covered in this series. Second, when I speak of legal services, I am referring to a category of services that includes, but is not limited to, the work currently performed by lawyers. Certainly legal advice and representation fall under the heading of legal services, but there are other services that can properly be called “legal services” which are not typically performed by a lawyer. Later in the series, I will provide some examples of what I call “legal services” that include providing legal or practical advice based on statutory or case law interpretation, yet would not typically be the job of a lawyer today. As I will argue, we are already beginning to see a proliferation in the categories of legal professions occurring organically in the market.
My thesis in this series is that access to legal services is not coextensive with access to lawyers. Traditional approaches to access to justice over-emphasize the need to increase the pool of lawyers doing legal aid or pro bono work. These are laudable and important goals, but it are not a complete answer to the crisis of access currently facing Canadian jurisdictions. For a more complete solution, we would do well to model our profession after the example set by health professionals.
In particular, we need to abolish the idea that lawyers are the exclusive providers of legal services and advice. Instead, we should create new categories of legal professionals analogous to the medical profession, with it’s myriad of different types of doctors, nurses, physiotherapists, pharmacists, and others. While preserving the current qualifications of a lawyer (analogous to those of a physician), we can supplement the existing legal market with a myriad of professionals with carefully-defined roles and responsibilities, along with specialized training commensurate to those responsibilities. These non-lawyer legal professionals might be analogous to the roles of nurses in the medical profession. Importantly, we can ensure quality of service through an accountability model similar to colleges or associations of nurses.
Before leaping into my proposals, though, it will help guide our discussion to think about the shortfalls of traditional attempts to promote access to legal services. The basic problem is this: there is a demand for legal services that vastly exceeds the capacity of today’s lawyers to serve. As a result, the price of legal services is prohibitively high for many individuals, businesses, and other entities. The end result is that the wealthiest segment of the population gets full access to counsel, while the rest of us get no access. This creates a class-based disparity that has the potential to work injustices in legal outcomes (not just in terms of litigation, but in far more pervasive ways as well).
The traditional response to this phenomenon has been to shift the distribution of legal services away from the extremely wealthy and toward the rest of the population. This happens in two ways. First, state-funded legal aid centres provide limited representation to low income people for the most pressing and essential forms of litigation (mainly criminal and family matters, although very occasionally other types of services are provided as well). Second, non-legal aid lawyers sometimes take on pro bono cases or work for a reduced rate.
This approach suffers from at least three crucial flaws:
- it only affects the distribution, and not the capacity, of legal services;
- it is difficult and costly to effect changes in distribution of services; and,
- it still leaves significant gaps in access to legal services.
The most glaring flaw in the traditional approach is that it fails to address the underlying mismatch between supply of and demand for legal services. Increasing the number of lawyers who choose legal aid or pro bono work only decreases the number of lawyers working in other areas. While the distribution is made slightly more equitable (and only slightly), the inadequacy of legal service providers to meet the needs of the community at large remains. Unless the pool of law school graduates and new lawyers can be increased dramatically (perhaps by an order of magnitude or more), persuading more lawyers to do legal aid is no solution to the underlying problem of inadequacy.
Having too few lawyers to meet the demand for legal services creates a second challenge for legal aid in that it drives up lawyers’ remuneration. As a result, it becomes more and more difficult for the government to hire and retain legal aid lawyers. The issue of inadequate remuneration for legal aid has come to a head in Toronto where the Criminal Lawyers’ Association has been calling for its members to boycott taking legal aid certificates since July. In a sense, the attempt to provide adequate legal aid faces a geometric challenge: how can the government afford to simultaneously hire more lawyers and increase the levels of remuneration for legal aid? The short answer is that most governments either can’t or won’t do both (and in many cases either), ensuring that legal aid will never be adequate to meet the needs of low income individuals.
Finally, even if we were able to drastically increase the capacity of legal aid, we would still face gross inadequacies in access to legal services. Most legal aid centres only deal with a limited set of legal issues and only provide those services to those below an arbitrary income cutoff. While criminal defence and some family matters are usually covered, this barely scratches the surface of the legal services that a low income person might require. Moreover, due to the cutoffs, there is a significant pool of individuals who earn too much money to qualify for legal aid, but don’t earn enough to actually hire a lawyer.
All of the above problems should drive home the point that until we drastically increase the pool of legal service providers, we cannot possibly address the crisis of access. The most immediate inference that can be drawn from these facts is that we need to increase capacity in our law schools and admit more graduates into the profession. This would certainly be a positive step, and I am encouraged to see discussions in both Ontario and British Columbia about the possibility opening new law schools as means to increase the number of law school graduates.
Unfortunately, increasing capacity in law schools won’t be enough. The difficulty in cranking out more law school graduates is that law students are expensive to educate. Although tuition fess (which are, in my view, excessive already) defray some of the cost of teaching, the fact remains governments still subsidize about half the costs of a legal education. In this sense, increasing law school capacity won’t succeed for the same reason that increasing legal aid capacity won’t succeed: governments simply aren’t able or willing to make the investments necessary to complete the task.
From this discussion, it is clear that a new approach is needed. I submit that a more complete solution to the crisis of access to legal services should fulfil the following conditions:
- it should increase the pool of legal service providers in order to address the overall shortage of lawyers;
- is should increase the capacity of legal aid and other entities to provide legal services free of charge;
- it should ensure access to legal services for people of all income levels, including low and middle income people;
- it should not be cost-prohibitive from a government viewpoint; and,
- it should ensure a high quality of legal service as well as competence and integrity among all legal professionals.
In Part 2 of this series, I will examine how the medical profession has attempted to address similar challenges in access to health services. In particular, I will explore the emergence of professionally regulated nursing in the early 20th century and other fragmentations of the medical profession. Using this as a template, I will posit some analogous proposals to fragment the legal profession into a number of specialized jobs with specialized training, regulation, and oversight commensurate to job responsibilities.
In Part 3, I will explore some specific examples of how the fragmentation of the legal profession is already taking place, posit some possibilities for new legal qualifications, and address some possible objections to my proposals (including a possible concern about “watering down” the level of competence and integrity required of legal professionals).
Access to Legal Services: Lessons from the Medical Profession
This post is Part 1 in a three-part series. Links to the other portions are found below.
McProperty
McFalafel owner to fight for his prefix
McDonald’s lawyers badgered McFalafel owner until he caved in. He wants to fight back when he can afford the legal fees.
Nicole Baute writes for the Star:
As for McFalafel’s chances, trademark lawyer Donald Brown says, “McDonald’s could have a case. Their arguments would be, you chose `Mc’ because it directly relates to our organization and you could be viewed as riding on our fame and/or notoriety.”
Calgary MP Under Fire for Inflammatory Political Pamphlet
(Source story at Calgary Herald)
A political pamphlet from Calgary West Conservative MP Rob Anders that urges changes to federal human rights legislation has raised the ire of Calgary’s largest Muslim organization, which views the dispatch to residents as inflammatory and divisive.
Still Top 25 in Canada
Top 25 in Canada? That’s us again.
Family feels betrayed by the law
Teen’s family blast killer’s deal
A teen stabbed another boy to death last year and carefully tried to hide evidence of his crime. Yesterday in a Brampton courtroom, he received a maximum allowed sentence.
Bob Mitchell of the Toronto Star writes:
… the killer, 15, will serve only eight months, the remaining part of the two-year custody portion of the seven-year sentence imposed yesterday by Justice Bruce Durno for a guilty plea to second-degree murder. The sentence is the maximum for second-degree murder under Canada’s youth laws.
Legal Aid boycott to continue
I spoke too soon when I congratulated the Criminal Lawyers Association on convincing Ontario Attorney General Chris Bentley to boost funding to Legal Aid Ontario to the tune of $150-million over the next four years.
It turns out that the battle will be continuing. Despite the funding boost, the Criminal Lawyers Association board has voted in favour of maintaining the boycott of legal aid.
Frank Addario, President of the CLA, argues that the cash infusion is merely a stop-gap measure which does not address the underlying concerns of the criminal defence bar. In a communique to Association members, Addario pointed out that when broken down, legal aid lawyers would be receiving a raise of 5% or less over the next four years.
This wouldn’t come close to correcting the income disparity between legal aid lawyers and Crown attorneys. It also wouldn’t address the many years of funding freeze and funding rollback that sparked the boycott in the first place. Addario explains:
If the population, the crime rate, the complexity of cases and inflation all remain stable in the next 4 years a 20% increase in funding will not eliminate the 60% loss against inflation since 1987.
Besides the money, there were other important reasons for the board’s decision to maintain the boycott. Expect a formal announcement later this week or next.
Awards
Partners
sLaw- The Court
- British Columbia (Ministry of Education) v. Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
- So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v. Niagara (Police Services Board), 2010 ONCA 616
- The ‘Return to Unanimity’ in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s ‘Oversight’
- UofT
- UofC
- UofA
- LexMonitor
- blawg