Thursday, April 29, 2010

He who acts as his own lawyer has a fool for a client

My last entry having been about the things you can do without a lawyer, it seemed prudent to talk about some things that you really should get a lawyer for, though you might feel like you can do it yourself.

The Supreme Court just refused leave to appeal a decision from the Alberta Court of Appeal. Briefly, Mr. Rejzek was busted by a police officer posing as a prostitute. He represented himself at trial and was convicted. He then appealed on the basis that the trial never advised him of his right to be represented at trial.

This would be a rarity. Let me explain a few things about self-reps.

Self-reps are a nuisance to the Court. They don't understand the process, the rules, the appropriate and usual ways that things are done in Court. And most of them have watched way too much TV. They'll lead large amounts of evidence completely unrelated to the matters at issue, because they don't have the legal training to understand the importance of legal principles like 'relevance'. (Of course, I'm speaking in generalities here.)

Worst of all, they sometimes take unreasonable and untenable positions, and waste everyone's time and everyone else's money. I've done a number of cases against self-reps; the cases are usually relatively easy, and I seldom have to worry about them making sophisticated legal arguments, but they're situations where my client shouldn't have to pay for me to go to Court, because the 'right' and 'wrong' of the cases, legally speaking, is quite straightforward. Lawyers only need the Court's assistance when the right answer isn't reasonably clear to both of them. Self-reps think that everybody should get his day in Court, and then wonder why they end up with costs awards made against them.

But on top of that, they can be unpredictable. In one case, I served a Notice of Application on a person, and the supporting affidavits. She didn't serve a Notice of Appearance (which is technically necessary to have a right to respond at all to an Application) or any other supporting materials...but showed up on the Court date wanting to argue her case, and bringing a sheaf of documents with her (which were not relevant to the case...but anyways). I wasn't surprised by this, of course. I could have taken the position that she should not even be allowed to address the Court...but the problem is that the Court will bend over backwards for self-reps, knowing how inaccessible and arcane the procedural requirements are. So had I argued for her complete exclusion, I would have just looked like an overly aggressive lawyer. So instead I took a position that was quite reasonable, and easy for the Court to agree with: "She hasn't filed a Notice of Appearance or any supporting materials. It isn't surprising that she would want to make submissions, but I would object to her attempting to lead any evidence." The judge allowed her to make submissions, and while she did attempt to raise new issues, I flagged in my response that those matters weren't in evidence (though I did state my client's positions on the issues), and the judge appears not to have considered them in his final decision. Then, after I made my costs submissions, the judge asked her if she had any submissions on the point, and appeared a little frustrated by her roundabout answers. (Not surprising, of course, that she wouldn't understand the points to argue when discussing costs.)

Anyways, the point is that, especially in complicated matters, the Court wants the assistance of competent counsel on all sides, and doesn't want to have to babysit a self-rep who doesn't understand the process. So normally, especially in a criminal matter, the judge will try hard to convince the accused to retain counsel.

Digression ended.

The Court of Queen's Bench overturned the conviction and entered an acquittal. The Alberta Court of Appeal restored the conviction. Basically, the finding is that the trial was fair nonetheless. Self-representation isn't grounds for appeal.

But I think most of us know that, when fighting criminal charges, hiring a lawyer is a good idea.

A couple days ago I blogged about civil remedies that you might pursue yourself - not necessarily because a lawyer wouldn't help, but because the lawyer's help is more expensive than what it's worth. It's easy to see the value of a lawyer in adversarial proceedings, but what about when everyone's getting along?

When to seek proactive legal advice is challenging to determine for even the most sophisticated laypeople. Employers can get themselves into pretty deep trouble pretty easily, acting without good legal advice. I took a call from an employer who had an employee in charge of a remote operation simultaneously put in her notice of resignation (of several weeks!) and make an accusation of human rights offences. How does an employer respond to that? Well, I can list off about 50 potential wrong answers. Don't fire the employee. Don't breach any of the employee's contractual entitlements. (She was contractually entitled to a performance evaluation a couple weeks out, with a raise depending on certain factors, which under the circumstances would have weighed in favour of a raise. I recommended offering to carry through with the performance evaluation and providing a raise.) Don't fail to discipline for any bona fide performance concerns, but do so carefully, and bear in mind that you may have to justify your actions to an adjudicator. If you must waive her notice, make sure to pay her through the whole thing. Etc.

The 'right' answer is "very carefully". I helped the employer craft his response to the employee. It isn't cheap; I ended up charging a fee in the high 3 digits for my time. But it reduces the probability of facing a Human Rights Application at the end of the day (the defence of which would run in the 4 to 5 digit range), and significantly reduces the probability of having a successful Human Rights Application made against them (the liability for which could easily run well into the 5 digit range). Many employers working without legal advice in that situation could have easily made some very expensive missteps. Even assuming that there hadn't been any inappropriate conduct to date (and of course in my client's situation there hadn't, seriously, I've worked with some questionable fact patterns, but I believe that this client was pretty clean), it's still really easy to run awry of the Human Rights Code by taking actions that might be seen as reprisal for her standing on her rights.

So was my service expensive? Yes, absolutely. Especially considering that it primarily consisted of a few phone conversations and emails going back and forth. But that client certainly got good value for that money.

Contracts. Another time when getting proactive legal advice can be important. As a general rule, the question is: "What's the worst that could happen?" You can have a binding contract written on a napkin, or based in a handshake, or less, but if it's not written by a lawyer, there's a real risk that you won't get what you think you're contracting for. The question you have to ask is whether or not that's a risk you're willing to bear.

If the contract is a repayment plan on a $500 loan to your cousin, then your worst case scenario is that you're out $500. Paying a lawyer for a few hours' work to (a) meet with you about it, (b) draft and/or review the contract, and (c) advise you on the terms and possible amendments...well, it's a no brainer: It ain't worth it. But if you're making a $500,000 loan to your cousin, which you want to be secured by a mortgage...then paying a grand or two to a lawyer to help you protect your investment is a no-brainer.

Parties to a commercial lease should generally get legal advice. Parties to a matrimonial agreement or separation agreement should (and often must) get legal advice.

What about employment contracts? For the employer, yes, absolutely, in all cases. An employer need not consult a lawyer before making any hiring decision, but the contract template should be drafted or at least reviewed by a lawyer, and an employment lawyer should explain to you how to make the terms enforceable.

Let's say you're gainfully employed and have been working for your employer for 10 years, but you're looking for greener apply for an opening that I'm offering, I bring you in for an interview, and it seems like a good fit. I call you to offer you a job, you put in your two weeks notice, then you report for work. With all the orientation materials, I also put in front of you your employment contract. It says that you're on a 3-month probationary period, limits your entitlements on termination, and has a non-competition clause. There's a real risk that none of these clauses will be enforceable. The key problem is this: You already have the job. You're not getting anything else out of the contract but what you already have, and therefore the contract may not be binding.

There are a lot of ways of challenging the terms of an employment contract upon termination, and the only way to really protect against that and reduce the risk of litigation upon termination (which, again, is really expensive) is to get good legal advice at the inception of the employment relationship.

What about an employee? Should an employee get legal advice on an employment contract? Well, employees looking to be hired seldom have much bargaining power. If you're in a position to really negotiate your substantive terms, then maybe. If you're not in a position to negotiate, then the only real question for you will be whether or not a term is legal. But if it's not legal, then it isn't usually going to be enforceable, so you can leave that question until later.

When dealing with severance packages at the end of employment, both sides should always get legal advice. An employer needs to know its obligations to a dismissed employee up front. An employee shouldn't sign off on the package until they know their rights, too.

Here's the rub: If an employee hasn't had an opportunity to get legal advice on the package, it may not be enforceable. Or it may be. So an employee wants legal advice because the agreement might hold up either way; an employer wants the employee to get legal advice because of the risk that it won't hold up otherwise. It's common practice for an employer to offer a contribution to the cost of obtaining legal advice, as part of the package.

Bottom line: Proactive advice is often worth the expense. A stitch in time saves nine.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment