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     March 2013        

Released on March 01, 2013, 1:00 AM EST
Tag #: 653
Hypocrisy: Power, authority and corruption

Canapini: "Bad legal advice", Ombudsman: "Transparency and Accountability"

City Clerk Hallsworth reimbursed $ 593.25 legal expenses from tax dollars
Echo of bad legal advice

WikiLeaks 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).

Ontario 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. 

Ombudsman 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 interviews. 

Regardless 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 tax payers.

WikiLeaks 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.

The 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.

City 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.

Related documents:
Hallsworth Legal 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

The 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

Though 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 excuse available?

For 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.

To 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.

The 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.

Whatever 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.

It 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.  

WikiLeaks Sudbury
March 01, 2013

Isaacs, N. (1935). Liability of the Lawyer for Bad Advice. California Law Review, 24 (1), 39-47.

Related Documents:
Liability of the Lawyer for Bad Legal Advice





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