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Lawyer fights Crown on Rowbotham fee

|Written By Robert Todd

A Toronto defence lawyer is digging his heels in against the Crown over who should determine remuneration in a case involving a Rowbotham order, where the Crown is ordered to pay an accused’s legal costs.

‘I just wanted an independent, arms-length arbiter to decide the tariff,’ says Daniel Brodsky.

While the Ministry of the Attorney General is holding firm on its policy of paying counsel on such cases at the legal aid rate, Daniel Brodsky argues that the Crown should have no say - or even knowledge - of the wage he is garnering in a case.

“I just wanted an independent, arms-length arbiter to decide the tariff,” says Brodsky. “I didn’t want the person who wants to put my client in jail for the rest of his natural life, potentially, to be deciding who the lawyer should be and how much that lawyer should be paid.”

The case involves first-degree murder accused Amin Kasim, who was granted a Rowbotham order by Ontario Superior Court Justice Ian Nordheimer in December 2008.

That move followed the May 2005 granting of a legal aid certificate. In February 2007, however, Kasim changed lawyers, with that new lawyer giving way to a third lawyer in April 2007, according to Nordheimer’s Dec. 19 decision on the Rowbotham application.

Kasim on Aug. 12, 2008 - about a month before the trial was set to begin - again asked to change lawyers. Legal Aid Ontario denied that request, and two appeals of that decision were rejected, said Nordheimer.

Brodsky was willing to act for Kasim as amicus curiae on the case, noted Nordheimer, but the judge ruled that type of representation “is not a substitute for one’s own personal counsel.”

Said Nordheimer: “In the interests of ensuring that the applicant receives a fair trial and given the limited history of changes of counsel, I considered it appropriate, indeed prudent, to make a Rowbotham order requiring the attorney general to provide funding for Mr. Brodsky to act for the applicant at his trial.”

Nordheimer then reiterated the fixed trial date in the matter is Sept. 14, told Kasim not to expect the court to make a similar order if he gets rid of Brodsky, and adjourned the matter to Jan. 13 for the Crown and Brodsky to discuss remuneration and other issues of his appointment.

At a March 27 hearing in the matter, Nordheimer noted that he had previously planned to hear submissions from Brodsky on why he should receive remuneration at a rate higher than the legal aid tariff, but had since changed his mind.

Brodsky had sought an order allowing him to submit a bill he thought fair, and if it were decided that only the legal aid rate was merited, “he would then seek to tax his accounts and argue the matter of the appropriate rate at that time,” said Nordheimer.

The Crown, meanwhile, asked for an order providing that Brodsky would be paid at the legal aid rate.

“As the argument proceeded before me, I became increasingly convinced that neither Mr. Brodsky’s approach nor the Crown’s approach was the appropriate one to be applied to the issue that presented itself,” said Nordheimer.

“Contrary to my earlier view, it is now apparent to me that the court should not involve itself in the issue of the rates to be paid to counsel pursuant to a Rowbotham order.”

Nordheimer noted the possibility of an “impasse” between the two sides on the matter.

“On the one hand, Mr. Brodsky might refuse to accept the retainer if he must also accept being paid at legal aid rates, although I would note that Mr. Brodsky candidly said on the December appearance that he would undertake the case at legal aid rates if the court did not allow a higher rate,” said the judge.

“I recognize the possibility, however, that Mr. Brodsky might change his mind in this regard. I also appreciate that Mr. Kasim might refuse to accept a counsel other than Mr. Brodsky no matter how qualified that counsel might be.”

Nordheimer later stated, “It seems to me that the formal terms of a Rowbotham order do not require anything other than an order that the Crown is to provide funding for counsel for Mr. Kasim failing which the proceedings are to be stayed, unless otherwise ordered.”

However, the judge made clear that if Kasim takes an “unjustified position” that leaves him unrepresented, the Rowbotham order may be revoked. That likely would lead to the appointment of an amicus curiae, said the judge.

Kasim has issued a direction stating that he only wants to be represented by Brodsky.

Brodsky says the next hearing in the matter is set for today, April 20.

The Crown outlined its position in an April 14 letter to Brodsky. Crown counsel Jeremy Glick said that based on the factors that Brodsky had previously stated that he would take the file at a legal aid rate and only wanted to argue a court order for a higher rate, that Nordheimer ruled the court could not make such a ruling, and that the Crown only funds such cases at legal aid rates, “it is not clear that there is anything to be negotiated with respect to the rate of compensation.”

Glick stated, “There is no basis for a stay of the proceedings under these circumstances, since the ministry will have met its obligations.”

While Brodsky says he is still willing to take the case on for the legal aid rate if a judge so orders, his arguments cut to the heart of fairness in the justice system.

“It’s no business of the Crown to know whether my client is on legal aid or paying me privately,” he says. “It doesn’t advance the case one bit, and it does impart information that I think is generally covered by solicitor-client privilege.”

Brodsky says he would like to see the Crown agree to a process in which someone without a stake in the case decides on the defence counsel’s rate of pay.

“I’m not comfortable with the prosecutor trying to find the cheapest counsel to set the rate,” he says.

Andras Schreck, a regional director of the Criminal Lawyers’ Association, says for cases like amicus curiae, the Ministry of the Attorney General should not be using the tariff as a benchmark for counsel remuneration.

“They’re not being paid by legal aid, they’re being paid by the Ministry of the Attorney General of Ontario,” he says. “The most apt comparison, in our view, is the tariff the [ministry] pays when it retains counsel for its own purposes.”

Schreck says the ministry pays outside counsel with 10 years of experience, retained for its own uses, $192 per hour.

“If the ministry wants to hire me to help the ministry, they say I’m worth $192 per hour,” he says. “If the court wants to appoint me to assist the court, the ministry says I’m only worth $92 per hour. And we say there’s just no principled reason for that.”

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