Monday, January 25, 2010

US Supreme Court Green Lights Special Interest Money

From a report by by Lawday:

WASHINGTON – President Obama in his weekly radio address strongly criticized the decision of the US Supreme Court last Thursday that removed long-standing campaign finance limits on corporate spending. The President noted that “this decision is giving a green light to a new stampede of special interest money in our politics”. In the 5-4 ruling that divided the court along conservative and liberal lines, the court ruled that the Constitution protects the free speech rights of corporations.

Justice Anthony Kennedy writing for the majority said, “the government may regulate corporate political speech through disclaimer and disclosure requirements but it may not suppress that speech altogether”. In a sharply worded dissent Justice Paul Stevens wrote, “the Court’s ruling threatens to undermine the integrity of elected institutions across the nation.” The ruling by the Court overturned Supreme Court decisions between 2003 and 1990 that upheld federal and state limits on expenditures by corporations supporting or opposing particular candidates. In the 2008 elections almost $6 billion was spent in federal campaigns including more than $1 billion from corporations and trade associations. The ruling will likely allow unions to spend more freely in political campaigns as well. Chief Justice John Roberts in a concurring opinion wrote, “ the First Amendment protects more than just individuals on a soapbox and the lonely past pamphleteer.” Justice Anthony Kennedy who cast the swing vote wrote the majority opinion which overturned his own decision in 1990 in Austin v. Michigan Chamber of Commerce. The 175 page decision included a sharply worded 90 page dissent by Justice John Paul Stevens that blasted the legal logic of majority and questioned the grasp of the cardinal principles of the judicial process.

The President said he will immediately work with Congress to enact legislation that would overturn the decision.

Regards,

Blair

Wednesday, January 20, 2010

Law Society Reinstates Multiple Repeat Offender


A Law Society of Upper Canada disciplinary panel reinstated Yaroslav Mikitchook’s licence last week after hearing evidence of psychological issues that include self-defeating personality disorder. At a hearing last week, Yaroslav Mikitchook convinced the LSUC to terminate the indefinite licence suspension imposed on him after his seventh finding of professional misconduct.“We understand he has been seeing a psychiatrist approximately twice a week, and it is our understanding that will continue,” said panel chair Paul Schabas. The panel relied on psychological reports indicating that Mikitchook suffers from obsessive-compulsive disorder as well as self-defeating personality disorder, also known as masochistic personality disorder. “They concluded Mr. Mikitchook made the errors he did for psychological reasons,” Schabas said. Counsel for the law society and the hearing panel agreed that Mikitchook’s progress in therapy represented a material change of circumstances. Mikitchook’s lawyer, David Cousins, said his client had attended approximately 140 therapy sessions. “The picture has changed for him to the point where he is now ready to return to practice,” Cousins said.

Last January, the law society deemed Mikitchook had once again engaged in professional misconduct, the seventh such finding since the early 1990s. Among the allegations, the panel heard evidence he had delayed issuing a statement of claim for a client’s 1999 auto accident until 2004. He also failed to issue a statement of claim for the same client in a separate 2005 collision. When the client terminated the retainer, Mikitchook failed to pass the file on to his new lawyer or respond to repeated correspondence, the ruling said. When a complaint against Mikitchook was filed, he neglected to respond to the LSUC. He then failed to show up for his disciplinary hearing, instead choosing to go on a holiday with his wife, documents show. Counsel for the law society argued last year the lawyer was “ungovernable,” constituted an “unacceptable risk to the public,” and should be disbarred.

At last week’s hearing, the panel heard evidence of Mikitchook’s lengthy disciplinary history. In 1992 and twice in 1994, the LSUC found him to have engaged in professional misconduct for failing to communicate with and misleading clients and failing to respond to the law society. His penalties escalated from reprimands and fines to a six-month suspension in 1994. In 1997, the law society ruled he had misappropriated funds in trust, a breach later shown to be due to bookkeeping inadequacies. As a result, he received a three-month suspension. The LSUC then suspended him for the third time in 2001 for professional misconduct in breaching a Convocation order. Similar complaints against Mikitchook on behalf of clients led to further misconduct proceedings in 2008.

The lawyer then submitted psychiatric evidence to the panel indicating he had two underlying personality disorders that drove him to behaviour that undermined his own career. “The self-defeating personality disorder causes people to be involved in self-sabotage,” said a law society ruling. Two psychiatrists conducted interviews and tests with the lawyer and submitted they didn’t feel he was ungovernable but rather that he lacks the normal ability to deal with complaints about his professional conduct. “He becomes paralyzed and is unable to respond in a normal way, leading to escalation,” the ruling said. In response, Mikitchook received another three-month suspension, after which the law society prohibited him from practising law except under the supervision of another licensed lawyer for five years. It also ordered him to engage in a course of therapy. However, Mikitchook then apparently ignored a subsequent notice of application related to the most recent misconduct proceedings and missed his panel hearing.

A letter from the lawyer’s psychiatrist described that oversight as “another example of his pattern of automatically turning a blind eye to situations he experiences as unpleasant rather than addressing them head on.” Dr. Norman Doidge, a psychiatrist who submitted a report to the panel, indicated Mikitchook was driven to do too much in his practice. “A core psychological conflict for Mr. Mikitchook leads him to repeatedly overextend himself to clients, without retainers, working many hours for free, and becoming inevitably overwhelmed and fed up,” Doidge wrote. “At times, he cuts off work on a file without having attended to the necessary communication with the client to maintain a healthy lawyer-client alliance.” As a result, a disciplinary panel suspended Mikitchook indefinitely until he could provide medical evidence that he is able to practise law. It also ordered him to engage in ongoing therapy and practise only under a plan of supervision for five years once the suspension ended.

In Doidge’s most recent report to the panel, he and two other psychiatrists agreed that Mikitchook is ready to return to the practice of law under supervision and is highly unlikely to run into further problems with clients and the governing body. The report indicated the lawyer would not be inclined to “put his head in the sand” and concluded “it would be psychiatrically beneficial for him to resume practice and contribute to the community with his legal skills. ”Counsel for the law society didn’t oppose the motion to terminate the suspension. “He’s shown insight into his difficulties,” Janice Duggan said. The panel accepted the motion. Cousins indicated his client has kept up with continuing legal education programs over the course of his suspension and has the support staff in place to return to his practice. As well, Mikitchook’s previous mentor has agreed to help implement a plan of supervision, he said.

Regards,

Blair

Monday, January 4, 2010

Defamation : "Responsible Journalism" as a defence

The Supreme Court of Canada recently released two decisions which will have a major impact on defamation cases.

In Quan v. Cusson (Nov. 9, 2006)(32420) Dec. 22, 09 C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters.

In Grant v. Torstar Corp. (Nov. 28, 2008)(32932) Dec. 22, 09 G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide
In both cases the SCC decided that there is a "responsible journalism" defence in Ontario, including for bloggers, and ordered that there be a new trial.

The "responsible journalism" defence has been adopted by the English courts and gives greater scope to freedom of expression. The defence allows publishers to escape liability if they can establish that they acted responsibly in attempting to verify information on a matter of public interest. The SCC found that this defence represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information.
This change to the law creates a new defence and leaves the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication the publication must be on a matter of public interest and the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

Where the defence is raised the trial judge first decides whether the publication is on a matter of public interest and if so, the jury then decides whether the standard of responsibility has been met.

In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.

The following factors may aid the jury in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (h) any other relevant circumstances.

Here are the links to the decisions:
http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html

Regards,

Blair