Released on March 01, 2013, 1:00 AM EST
Tag #: 653
Power, authority and corruption
Clerk Hallsworth reimbursed $ 593.25 legal expenses from tax dollars
Echo of bad legal advice
Sudbury investigative team uncovered that City Clerk Caroline Hallsworth
reimbursed $593.25 legal fees
to appear before Ontario Ombudsmanís Open Meeting Law Enforcement Team (OMLET).
Ombudsmanís office investigated closed door meeting held by council for
City of Greater Sudbury on October 3 and 12, November 9 and December 14,
2011 and June 12, June 26, 2012. On December 28, 2012 Ombudsman's office also
received two complaints resulting from the decision to reduce City Auditor
General Bigger's term from three years to one.
office clearly stated that it is not a requirement to have a lawyer
present as witness for the closed door meeting investigation. City
Solicitor Canapini advised Ombudsman that a lawyer from his office
would likely be present for interviews of council and staff, to protect the
interests of the municipality. At that time Ombudsmanís office advised
that city solicitors would not be permitted to be present for the
of clear instructions received from Ombudsmanís office, Hallsworth did
not hesitate to hire private counsel to appear before the Open Meeting Law
Enforcement Team (OMLET).
Hallsworth`s appearance before Open Meeting
Law Enforcement Team (OMLET) with her own private counsel cost $ 593.25 to
Sudbury investigative team was also able to uncover by-law
91-381 which allows City staff to hire lawyers for their legal
representation. The fees of this very representation is paid by the tax dollars.
purpose of the by-law is administration of justice and to provide better
value for the tax dollars, but not to provide legal support for
misconduct, negligence and incompetence of the bureaucrats. Fundamental
importance of democratic principal is violated and the ultimate burden of
legal fees paid to private counsel passed on to tax payers.
solicitor Canapini has made news on many occasions giving controversial
opinions. Canapini clashed with Auditor General Brian Bigger when Bigger
was auditing Sudbury Transit in 2011 when his department attempted to
investigate a missing $800,000 in transit ticket money. Canapini
argued they were covered by solicitor-client privilege, were the property
of city council and advised them not to turn them over to the auditor.
Biggerís office spent $20,000 on outside legal advice in an attempt to
gain access to the documents. Canapini again disagreed with Bigger
regarding Healthy Community Initiatives Funds. Canapini told councillors
he already reviewed the legal aspects of the funds and found no issues.
Canapini was not able to
protect the interest of City of Greater Sudbury citizens who have the
ultimate decision to elect city councillors. The democratic rights of the
Sudbury citizens have been undermined. WikiLeaks Sudbury strongly
condemned Canapiniís actions and demands a public inquiry.
Fees paid to private counsel from tax dollars
By-law 91-381 allowing City
staff to use private counsel, paid by tax payers
Released on March 01, 2013 at 1:00 AM EST
original article initially published on Journal
of California Law Review,
24 (1), 39-47. Excerpts from the article as follows.
Liability of the Lawyer for Bad Legal Advice
the apocryphal maxim to the effect that "everyone is presumed to know
the law" is popular, no one is quite hardy enough to apply it to the
lawyer. He can at times be heard to exculpate himself from liability for bad
legal advice on the ground that he did his best and that his mistake
was due to his ignorance of law. When, where, and to what extent is this
a rounded and rationalized account of the law on the subject of a lawyer's
liability for bad legal advice we shall do well to begin with the
contractual form of statement. It is of course not historically correct
-for there are still vestiges in English law of the barrister's inability
to sue his client in contract. Nor is it analytically sound to think of
the relation of attorney and client as essentially contractual. The lawyer
has a status as an officer of the court, and his relation with his client
is fiduciary in the highest degree with consequences that are
diametrically opposed to the arm's length conception of a simple contract.
Nevertheless, under the general influence of the nineteenth century
prejudice in favor of making the contracts principle all-embracing,
American courts and text writers have sought and found a way of describing
the liability of an attorney-at law for undertaking a task for which his
skill and training are inadequate in terms of implied agreement. The lawyer is thus in precisely the same situation as a
workman who by putting up a shingle represents himself as having the
necessary skill to do his work. As in the case of the workman, there are
details, degrees, and gradations in the skill thus represented.
make an accurate estimate of the precise meaning of a lawyer's holding-out
would, by analogy, require a good deal of information as to the
organization and state of education of the bar of the country. The
question what is due skill under any circumstances is in this respect like
the question of due care, with which of course it is almost invariably
coupled. The fact that a lawyer has misstated a law points equally to the
two possible causes: ignorance or carelessless. In fact, negligence is a
source of ignorance and ignorance a source of negligence; and the very
same results achieved by one lawyer through his knowledge are reached more
slowly and laboriously by another through care.
recognition of specialties is not so far advanced in law as in medicine.
Hence, we cannot expect so clear a demarcation among lawyers, but within
limits we have both the fact of the specialization and the recognition of
it. There is a distinction on the basis of locality. Thus in Fenaille
v. Coudert (1882, 44 N.J.
L. 286, 291) the court said: "In assuming the employment of
plaintiffs, the skill and knowledge they professed, must be considered
with reference to the locality of their practice. In the absence of any
express declaration on the subject, they will be presumed to have held
themselves out as possessing such skill and knowledge as attorneys
practicing (in the state of New York) might reasonably be supposed to
possess, and no more. As attorneys of New York, they are not to be
presumed to know the laws of a foreign state. Nor did they impliedly
undertake that they had such knowledge, by accepting an employment which .
. . was, in terms, limited to drawing a contract in all respects binding
between the parties." In this case the difficulty was one of fact
rather than law. The attorneys had been employed to draw a building
contract binding in all respects between the parties, and failed to advise
their client of the necessity of its registration as required by the laws
of the adjoining state for use in which it was drawn. Had they or had they
not held themselves out as learned in that phase of the law of the
adjoining state or the Conflict of Laws of their own state? In general,
what kind and degree of skill and learning does any lawyer in any given
case hold himself out as possessing? If we say, borrowing the language of
the court, "the ordinary legal knowledge and skill common to members
of the legal profession," we are raising a new question, vaguer and
more general than the first. In reality, the second question does not
answer the first. Assuming that some expert in legal education can tell us
what the average lawyer knows about tax law, or criminal law, or
bankruptcy law, this information is a poor criterion for judging not
merely what the lawyer before us should have known but what he held
himself out to his client as knowing when he accepted a case. Average
facts do not conclude specific cases; yet the use of averages or types
affords a familiar escape for the law by substituting an ascertaining
approximate answer for an unascertainable exact one.
reason Congress may have had for not mentioning the lawyer by name as it
did the accountant, engineer and appraiser, and whatever conclusions
judges trained in the tradition of the lawyer will in the first stages
draw from this obscurity or from the argument that the whole section is
concerned with statements of facts not conclusion of law, the simple truth
is that as matters now stand lawyers do and should have a hand in
preparing the registration statements called for, and the contribution
goes beyond the mere statements of conclusions of law as abstract legal
proportions. Investors have long been in the habit of relying on the names
of counsel appended to an issue, not merely for the assurance of complete
technical compliance with the law but for the character and standing of
the whole transaction, for their checking at least of such facts as a
lawyer is competent to check and for the accuracy of the form of the
statement and its exact conformity to the facts presented. It seems that
the lawyer is, or may well be, in the same category as the accountant. At
all events, his immunity against attacks by strangers is threatened.
is doubtful whether the reliance of the last century on the contractual
theory of a professional man's liability, and more particularly a
lawyer's, is adequate for the twentieth century. We shall probably
return to an emphasis of his professional status as the basis for a theory
of his duties and liabilities, as well as for his rights. This shift means
no radical change in his legal position. It means, rather, a restatement
of his answerability to the court and to society, and a reminder that he
is not an ordinary employee of his client.
March 01, 2013
Isaacs, N. (1935). Liability of the Lawyer for Bad
Advice. California Law Review,
24 (1), 39-47.
Liability of the Lawyer for
Bad Legal Advice