Quid Novi Vol. 23 No. 012: January 21, 2003

24 Pages·35 MB·English

by  McGill University. Faculty of Law

u i d N o v i
McGill University, Faculty of Law
Volume 23, No. 12- January 21, 2003
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Quid Novi 21 janvier 2003
n this Issue Editor's Note
:ACULTY'S FRANCAIS 15 Why Now?
Strange Bilinguisme 16 Top 10
Des Francos dans 1' av i on 17 Civil Lawyers
Un article de cette editio
:ACULT'S FUNDING LAW GAMES and MORE! me rappelle une de me
19 Red Devils peripeties. Dennis, tu n' est pa
Ad-Hoc committee
20 News Item le seul a t'amuser follement av
Going at it Alone
20 Trinkfest Review les petits cadeaux que nous fon
Computer Problems
21 Hey Alumni! les cabinets: vous souvenez-vou
VP External Message
22 Chico Resch de ces petites balle
22 Beautiful B-C rebondissantes que Tory's nou
THICS PANEL
23 Mr President! avait distribuees lors d'un Coffi
Schedule
24 The Clash House? Je m'amusais beaucou
Example Problems
avec la mienne, mai
14 Ethics
malheureusement, elle semblai
[email protected]
defectueuse: la lumiere rouge n
clignotait pas quand je 1
QUIDNOVI QuidNoviis published weekly lan~ais ... Perplexe et de~ue, j
by the students ofMcGill Uni tentais vainement de la fair
3661 Peel Street
versity, Faculty of Law. Pro clignoter et j' ai poursuivi me
Montreal, Quebec
duction is made possible efforts jusque dehors, devan
H2A 1X1
[phone] through the direct support of notre chere faculte, lorsque
the students. oops! ma baballe roulait ver
REDACTEURS-EN-CHEF trottoir, sans s' arreter, deboulait
Fabien Fourmanoit
All contents copyright 2002 deboulait. .. La, subitement, 1
Rosalie-Anne Tichoux Mandich
QuidNovi. petite lumiere rouge s' es
allumee et, sous le regard ah ·
MANAGING EDITOR
Catherine Galardo Les opinions exprimees sont des pietons et chauffeurs qu ·
propres aux auteurs. Toute con tentaient de trouver une explica
ASSOCIATE EDITORS
tribution do it indiquer 1' auteur tion rationnelle a ce petit fe
Alexandra Law
et son origine et n' est publiee rouge filant au sol, mon peti
Stephen Panunto
Peter Wright qu'a1a discretion du comite de jouet roula allegrement jusqu' a
redaction. bas de cette chere cote Peel..
LAYOUT EDITORS Telle fut la triste fin de (ma) ball
JackyLuk
The content of this publication Torys.... Je ne 1' ai jamai
Michelle Dean
does not necessarily represent retrouve et sincerement,
~
PHOTOGRAPHE the views of the McGill Law m' attriste beaucoup beaucoup ..
Marta Juzwiak Students' Association Inc. or of
McGill University. Bonne lecture!
COVER ARTIST
Dennis Galiatsatos
Envoyez vos commentaires ou Rosalie
WEB EDITORS articles avant jeudi 5 PM a:
Mischa Auerbach-Ziogas [email protected].
AramRyu
2
January 21, 2003 Quid Novi
La Faculty of Droit's Strange Bilinguisme unilingual English messages in a pre
dominantly English faculty. This was
by Jerome Lussier, Law Ill
expected by every Francophone student
upon entering McGill. What is more
controversial and harder to swallow,
L
ast Tuesday, law students re of the people I (indirectly) criticize in however, is receiving bilingual texts
ceived the following text, in this article, and I am convinced that that clearly do not treat the two lan
eluded in an email from the student representatives and others who guages equally.
LSA"s VP External: occasionally butcher French do so with The second criticism is less concerned
the best intentions, which is probably with the actual quality of the French
Veut-tu battre le Barreau du Quebec? all that matters in the end. Fourth, I am expression as with the strange formula
Il y aura un reunion parmi les not arguing for the establishment of a adopted by the faculty to fulflll (or
representatifs etudiant(e )s de toutes les language police. I am merely express demonstrate) its bilingual mandate. I'm
facultes de droites du Quebec. Le ing thoughts on the topic of bilingual referring to 1' habitude inusitee of al
reunion s 'addressera les questions ism, and using a recent document as ternating entre une language et the
quanta les policies du Barreau du Que an example. other au sein d'un same text. This
bec, particulierement celles qui In my opinion, the law faculty's strange makes no bon sens, I' m desole.
concement les examens. bilingualism practices, as observed This supremely awkward writing style
Ce evenement pourrait representer une over the course of the last three years, makes no sense because it seems to pro
occasion excellente de rencontrer des suffer from two significant problems. ceed from a mistaken conception of the
autres etudiant(e )s de droit et de plus The first one is high-
apprendre comment marcher une lighted above, and
institutione a laquelle plusieurs refer essentially consists in I think unilingual English
ent comme "la purgatoire ". believing that bilin
texts are a preferable option
L'evenement se deroulera a Quebec le gualism is an obliga
25 janvier. C'est possible qu'il soit un tion of means, rather
to the parody of French we
petit salaire pour payer la transport. than an obligation of
Si vous vous interesserez, s. v.p. vous result. For reasons
are too often served.
addressez au courriel au-dessous. unclear to me, there
seems to be a strong
Of corse, every studente in the sentiment throughout
faculty understand what it say in de the student body that
message, essencially. That is note the when it comes to writing in French, purpose of institutional bilingualism.
pointe. The probleme, auwever, is that getting it right, accents and all, is not Put simply, the practice of alternating
de message in french contain so many really important as long as you try. between French and English within the
speling and gramar mistake that While this is certainly true in the case same text seems directed more at show
reeding it was paneful. If this waz rare of private or personal correspondence, ing off the bilingualism of the author
exception, nobodi said noting. But I'm afraid it is wrong in the context of than at accommodating a bilingual au
concidering the prevalans of these "official" communications, from the dience. When I disserte with utmost
boched French verjions in oficial LSA, professors or the administration. virtuosite, effortlessly empruntant ex
correspondance from LSA and other, Approximate translations are especially pressions de 1' une ou 1' autre of our idi
peraps a few remarks shoud be say. annoying considering how easy it oms officiels, I visiblement strive after
As always - and God knows would be to have any fully bilingual or 1' admiration general et non la meilleure
how important it is in this faculty - I Francophone student review and edit understanding of mon auditoire. Just
must begin with a few provisos. First, texts before they are distributed. I will imagine what would happen if Supreme
this article is not targeted at J eff Roberts even go so far as to recommend that a Court decisions were written like this.
(author of the above-quoted master new "official translator" position be
piece). He is a great guy by all accounts, created at the LSA, with a modest an As before, one solution is to renounce
and although I don't know him well nual compensation. I do not consider active bilingualism altogether. The Fac
personally, my limited contacts with this to be a luxury beyond our means. ulty would sometimes publish docu
him have confmned this. More impor If this cannot be done, then I think ments in French only, and other times
tantly, perhaps, I would see no point in unilingual English texts are a prefer in English only. Considering the lin
attacking someone's questionable mas able option to the parody of French we guistic demographics, it could decide
tery of a second written language. are too often served. Official faculty to scrap French completely. A better so
Third, I am not implying any bad faith bilingualism aside, it is by no means lution, however, would be to accept (for
or questionable intentions on the part insulting for a Francophone to receive once) to be like every other bilingual
3
Quid Novi 21 janvier 2003
institution in the world, and publish foster concision. Faculty documents ourselves to the world as alingual tree
complete versions of documents in both could also be printed on double-sided killers, we could proudly display our
languages. paper, in a welcome change of focus bilingual environmentalism. •
Of course, this requires more paper and for our beloved school's ever-present
more time. On the other hand, it could need to show off: instead of presenting
Y a-t-il un franco dans I' avian?
by Marie-Pierre Grenier et Elise Labrecque. Law I
ce sacro-saint bilinguisme passif. Un
« Veut-tu battre le Barreau du Que coast to coast, d' un ocean a 1' autre ... evenement en particulier : une anno nce
bec?] Non seulement les cours de la dans notre Notice Board. Peut-etre n'y
Il y aura un reunion parmi les Faculte sont-ils bilingues, mais ils sont avez-vous porte que peu d'attention,
representatifs etudiant(e )s de toutes les egalement d'une qualite linguistique car nous ne faisons parfois que
facultes de droites du Quebec. Le remarquable. Plusieurs elements (inter l'effleurer. Mais force est de constater
reunion s, addressera les questions ventions des etudiants et des que le titre etait plutot accrocheur :
quanta les policies du Barreau du Que professeurs, etat d' esprit general) «Veut-tu battre le Barreau du Quebec
bec, particulierement celles qui favorisent la creation d'un climat de ?» (au moment d'ecrire ces lignes, un
concement les examens. Ce evenement respect, mais plus encore la creation feroce debat fait toujours rage sur la
signification pour le
pourrait representer -----------------------------
une occasion moins douteuse de
excellente de Le bilinguisme passif consiste-t-il ces mots). Surprise!
rencontrer des autres a Le texte est redige
seulement en un droit inalienable
etudiant( e )s de droit par le LSA,
et de plus apprendre 1' Association des
s' exp rimer dans la langue de son
comment marcher etudiant(e)s de la
une institutione a choix mais en assumant le risque que Faculte de droit.
laquelle plusieurs ref «Oui, mais le Notice
erent comme "la nos paroles restent inintelligibles Board», nous direz
purgatoire ".
vous, «personne n'y
L' evenement se pour notre (nos) interlocuteur(s)?
prete attention. lis
deroulera a Quebec le
1' ont redige sur un
25 janvier. C' est pos-
coin de table ... ».
sible qu 'il so it un petit
Peut-etre, mais ceux
salaire pour payer la transport. Si vous d'un lieu ou chacun se sent libre qui 1' ont lu nous comprendront lorsque
vous interesserez, s. v.p. vous addressez d'intervenir dans la langue de son nous affirmons qu'il ne s'agit pas la de
au courriel au-dessous. » choix. quelques mignonnes fautes
Plusieurs elements ont toutefois d' orthographe. Il y a de quoi faire
E
n tant qu' etudiantes de premiere contribue a lever le voile sur certaines frissonner n'importe quel amoureux de
annee, nous avons a plus d'une failles de ce bilinguisme dit «passif». la langue de Moliere ...
reprise suscite 1' etonnement en U n commentaire professoral a 1' effet Ce texte redige en « fran<rais »
annon<rant a nos proches que la totalite qu' il existe un certain bilinguisme «a n'a qu'une seule qualite: il pourrait etre
de nos cours etaient offerts dans les la McGilli>n ous ad' ailleurs fait sourire.
compris par n' importe quel anglophone
deux langues. Le compromis semblait Le bilinguisme passif consiste-t-il
ne possedant pas de connaissances en
singulier historiquement et seulement en un droit inalienable a
fran<rais mais muni d'un mauvais
socialement -pour ce bastion de la cul s' ex primer dans la langue de son choix
dictionnaire bilingue de poche. Les
ture anglo-saxonne que represente mais en assumant le risque que nos pa
francophones, eux, tentent toujours de
l'Universite McGill. Il provoqua roles restent inintelligibles pour notre
bien saisir !'information contenue dans
toutefois un sentiment d' admiration et (nos) interlocuteur(s)? Nous pouvons A
ce message. cette fin, deux ou trois
de respect chez ceux dont la generation meme faire le parallele avec le principe
lectures sont necessaires, mais elles
avait scande bien fort : «McGill du respect d' autrui : n' est-il pas parfois
nous conduisent a une conclusion fort
Fran<rais !». En effet, la Faculte de droit plus simple d'ignorer I' autre plutot que
peu flatteuse pour le LSA: notre asso
est une pionniere dans la concretisation de chercher a comprendre pourquoi et
ciation etudiante se soucie bien peu de
d 'un bilinguisme institutionnel en quoi il est different ?
la langue fran<raise.
fonctionnel, bilinguisme auquel on fait
Certains evenements de la
Ce dur constat n' est
la vie dure a mari usque ad mare, from
semaine ont precipite une reflexion sur malheureusement pas uniquement lie
4
-
January 21, 2003 Quid Novi
ace simple courriel. Celui-ci n'est que A Message from the Ad-Hoc Student
la pointe de 1' iceberg. Les nombreux
envois du LSA nous ont generalement Committee on Faculty Funding
de~ues linguistiquement depuis notre
arrivee a la Faculte (particulierement M ost members of the Faculty Following the creation of the
les documents relatifs a la fameuse
of Law are aware that new Working Group, the LSA decided to
sematne d' orientation). En
funding strategies are being form its own committee (the Ad-Hoc
1' occurrence, la fonction de
investigated for the Faculty. The fund Committee) to represent student inter
representation des etudiants que le LSA
ing challenges confronting our school ests in the process and to assist the
do it assumer n' est absolument pas
were outlined in a report compiled by Working Group where possible. In an
remplie dans le cas qui nous preoccupe.
Prof. MacDonald, following the work election in late November, the follow
Aux dernieres nouvelles, la Faculte
of the Strategic Planning Committee, ing students were selected by the stu
comptait 26 % d' etudiants
and in response, the Faculty formed a dents' General Assembly to form the
francophones ... Et moins d'un quart de
Working Group comprising many dif Ad-Hoc Committee: Jameela
cette annonce est redige dans un
ferent members of the community rep Jeeroburkhan, Pascal Zamprelli,
fran~ais decent. Mais poussons plus resenting a multitude of stakeholders. Michelle Dean, Pierre-Olivier Savoie,
loin la reflexion.
Prof. Richard Janda heads this Work Ken McKay, J ason Crelinsten, Finn
La question de la representation
ing Group. Makela, and Charmine Lyn. Jeff Rob
des etudiants francophones au comite
erts and J eff Feiner are the LSA Ex
executif du LSA pourrait bien entendu
ecutive members on the Ad-Hoc Com
se poser. Nous croyons cependant qu'il anglophones qui tentent d' apprendre mittee. Jameela and Ken are also the
s'agit la d'un autre debat, dans lequel cette langue complexe qu' est le students' formal representatives at the
entrent d' autres facteurs totalement fran~ais, bien au contraire. Notre pas Working Group.
exterieurs a la presente discussion. sage a la Faculte est par-dessus tout une The Ad-Hoc Committee will
C' est ici davantage une question de experience d' apprentissage a 1' interieur be undertaking many initiatives in the
ressources qui se pose : une simple cor de laquelle s'insere !'acquisition de coming months, and they meet every
rection etait- elle si ardue a entreprendre connaissances linguistiques (en Tuesday at 5:30pm on the top floor of
? Nous cotoyons chaque jour fran~ais pour certains, en anglais pour Thomson House. All students are en
francophones, anglophones et d'autres). Nous afftrmons simplement couraged to attend these meetings
allophones a 1' interieur meme des murs que la langue fran~aise merite d'etre should they wish.
de notre Faculte. Si nous desirions ecrite et parlee convenablement, There will be a website dedi
ecrire une lettre en espagnol ou meme surtout dans le cadre de la cated to the work of this committee, and
en arabe, nous saurions tout de suite a correspondance officielle d'une organi it shall be created as soon as possible.
qui nous adresser parmi nos collegues. sation representant les etudiants de la As well, information will be dissemi
Est-ce done si difficile de trouver un Faculte. Nous croyons qu'un message nated regularly via the Quid, pam
correcteur pour un message redige en redige en anglais vaut mieux qu'un phlets, and other media. Minutes and
fran~ais ? N ous en doutons ... message ecrit dans un fran~ais publications of the Committee are go
Considerons maintenant pitoyable. ing to be available in the LSA office.
!'impact qu'une telle utilisation de la Dans le doute, s' abstenir. .. Furthermore, there will be opportuni
langue fran~aise pourrait avoir a ties to become involved with individual
l'exterieur des murs de la Faculte. Et P.S : Pour activer la correction initiatives from the Working Group,
rappelons-nous que le LSA represente ( orthographe, syntaxe et grammaire) such as the preliminary analysis of the
justement les etudiants de la Faculte de automatique ouvrir le menu «tools» Social Contract option currently under
droit lors d' evenements aussi bien a puis selectionner «spelling and gram way. Meetings developing the Social
Montreal que dans le reste du Canada. mar>>. Apres cela, «sit back, relax, Contract are taking place in the Com
Imaginez-vous, par exemple, que la and enjoy.» 11 y a des francos dans mon Room at 3661 Peel (across from
correspondance entre le LSA et le l'avion! • the Library): Mon. Jan. 20th at 12:30,
Comite organisateur des Jeux Ridiques 1 Notice Board : LSA VP External Tues. Jan. 21st at lOam, Wed. Jan. 22nd
ait ressemble ace message du Notice Edition, 13 janvier 03. Texte non at 4:30pm, Thurs. Jan. 23rd at lpm,
Board. La Faculte de droit bilingue de modifte et non corrige par les auteurs Mon. Jan. 27th at 12:30, Tues. Jan. 28th
l'Universite McGill deviendrait la risee
de ce present billet. at 10. •
des uni versites francophones du
Quebec.
Comprenez-nous bien : nous ne
tentons pas ici de reduire a neant ou
meme de decourager les efforts des
5
21 janvier 2003
Quid Novi
Going at it Alone to the funding problem, I' m not sure
that I agree with J ared. I think we
should just be careful to consider un
der what circumstances we should be
by Finn Makela, Law II
willing to do so. In my view, there are
Funny how, even in a debate in credit J ared (or his position, but the three criteria that any "made in McGill"
which everybody is quick to say distinction won't matter). Presumably solution would have to meet: 1) it
that all options are open and no he will first be told that he doesn't know should not detract from, nor be used as
positions have been taken, a certain or- the facts (for how could someone an excuse for ignoring, action at the
thodoxy arises. The introduction of ''know the facts" and still suggest that systemic level, 2) it should not harm
buzzwords and catchphrases into a dis- solidarity and collective action are the any other faculty or school, and 3) it
cussion is one effective way to reduce best responses?). Next he will get a should increase accessibility.
what might otherwise be controversial lesson in reality- his position isn't, of Now, you might wonder why a
positions to unquestioned assumptions course, realistic. Being realistic means committed leftist would be arguing
- common sense. I was therefore focusing exclusively on tomorrow's that, under some circumstances, we
pleasedtoseeJaredWillniptheemerg- problem and leaving next week to the should "go at it alone". Wouldn't I
ing "unique solution" discourse of the idealists and dreamers. Failing argu- rather just see some big central state
faculty finance debate in the bud. His ment, Jared might just be labelled "a administer everything? Not necessar
cogent analysis of the relationship be- radical" which should make him suffi- ily. Though the market model that sets
tween accessibility and excellence and ciently disreputable for his opinions to university against university, faculty
his willingness to situate McGill Law's be safely ignored. (Come to think of against faculty, and ultimately student
quandary in a larger context were also it, I have already been asked if J ared against student, is obviously out for me,
welcome reading in the first week back was "that radical guy" who came up this doesn't mean that central planning
from the holidays. with the "crazy tuition strike thing" - is the most viable alternative. For eo-
If experience is a good guide, alas that was Daniel Moure pissing... operative action to really work, I think
we may now anticipate a backlash in err. .. micturating ... into the wind). it must be more than just administered
which some tired, but still serviceable, As for whether McGill should and anonymous participation in a
catchphrases are dragged out to dis- abandon any faculty-specific responses monolithic collective. Communities
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January 21, 2003 Quid Novi
have special resources that they can of them work, we should try to share
mobilize to solve some of their own them with other faculties and schools. LSA VP External
problems. Using these resources can But in doing so, we must be careful not
help build both solidarity and inde to let our "uniqueness" become a fancy Annoucements
pendence. Perhaps most importantly, it way of saying "privilege". •
also allows for a somewhat greater de by Jeff Roberts,
gree of autonomy than is typically Finn Make la is a member of the McGill Radical VPExtemal
found in state-centric approaches. Law Community and the Student Ad-Hoc Com
mittee on Faculty Funding. The positions in this
So let's use our special resources and
article are the authors own and in no way re- 1. Questions for McGill's new Prin
come up with unique solutions. If some
flect the positions of either group. cipal?
Computer Problems? Heather Munroe-Blum,
McGill's incoming principal, will be
presenting herself to a special ses
sion of SSMU council on
by Aaron Feinstein, Law II Thursday~
January 23 at 18h00. Attendence is
0 ften, I need to print readings realize that there are copy card oper open to all students. The principal
will deliver her introductory mes
for a class from the intemet. ated printers in the library. But, the in
sage and will then take questions
Some of these readings are structions posted on how to use them
from students. A brief, and albeit
rather large documents and would take are inadequate, they do not always
rather hagiograpbical, biography of
a very long time to print on my home work, there are times when the copy
the new principal is available on
computer. So, I go to one of the facul card vendor is out of order, and, to my McGill' s website. Should you be un
ty's computer labs to print up the docu knowledge, they do not allow us to take able to attend but nevertheless have
ment. There, what should take ten min advantage of the discount for printing a question or concern to deliver to
utes sometimes takes close to an hour. double sided. Furthermore, what if you Ms. Munroe-Blum,
When I am lucky and I do have enough have class everyday between 11:30 and please forward it the LSA VPExter
nal (address below) and I will be glad
print credits, I often run into technical 1:30?
to raise the matter for you.
difficulties. Last week, I went to the The solution is rather simple:
Upstairs Lab to print some documents. Why not allow the staff at the library
***
The toner in the printer was low, and circulation desk to sell print credits?
the document did not print very well. Then, print credits can be available 2. Voulez-vous vous battre contre le
So, I went to the Library Lab to print whenever the library is open. The proc Barreau du Quebec?
the other readings. I sent the docu ess does not appear to be overly com
ments to print. The dialogue box that plex. All they would have to do is click ll y aura une reunion parmi
les etudiants representants de toutes
says that the documents printed ap a mouse a few times.
les facultes de droit du Quebec. Le
peared, but they did not print out. Of 2) Computers malfunction and
reunion aura pour but de s'interroger
course this did not happen between they do not always malfunction be
sur les politiques actuelles du
11:30 and 1:30, when technical help is tween 11:30 and 1:30. The LSA can
Barreau du Quebec, et plus
available. Rather than risk losing even remedy this situation by hiring law stu
particulierement sur celles qui
more money, I decided to abandon the dents to provide basic technical help concement Ies examens.
project. It is a good thing that the read as a supplement to the help currently Cet evenement est une
ings I was trying to print were not that available. While those students would bonne occasion pour rencontrer
important. not be able to be present at all times, if d'autres etudiant(e)s en droit et
d' apprendre comment fonctionne
I believe that this situation oc you encounter a technical problem at
cette institution que plusieurs
curs rather often in the Faculty. To put 3:00 in the afternoon, it is preferable
surnomment "le purgatoire".
it simply, the technical support offered to wait until a student monitor comes
a
La rencontre se deroulera
to students is inadequate. I realize that on duty later that day then to wait until
Quebec le 25 janvier. C' est possible
the Faculty has funding problems. 11:30 the next morning. qu' il y ait un eo ut de transport.
However, I believe that there are ways 3) One fmal suggestion: Some Si vous etes interesses, s.v.p
to address the problem without spend times, legal methodology classes meet repondez au courriel au-dessous.
ing excessive amounts of money. I in the computer lab even though com
would like to use this space to high puter use is not required for that par ***
light some of the problems and to sug ticular session. Those sessions should
For information about any of the
gest solutions. be moved elsewhere.
above, please contact:
1) It is silly to only sell print I hope that these suggestions
jeff.roberts @elf.mcgill.ca
credits for two hours a day and only will provoke a dialogue on how to im
during the week. It is inevitable that prove computer services so they better
we will run out of print credits outside meet the needs of law students.•
of the hours when they are for sale. I
7
Quid Novi 21 janvier 2003
ETHICS AND LAW
PANEL:
Daily Confrontations with
Ethical Problems in the
Practice ofL aw
Wednesday, January 22, 2003
1:OOpm - 3:30pm
Moot Court
PANELISTS:
Richard E. Shadley, Q.C., Criminal Defence Lawyer (Shadley Battista)
Honourable Mr. Justice Allan R. Hilton (Superior Court of Quebec)
Carolyn Polak, Family Lawyer
Me James Brunton, Senior Prosecutor (Federal Department of Justice)
Me Lynne Kassie, Family Lawyer
Me William Hesler, Corporate Commercial Lawyer (Ogilvy Renault)
8
January 21, 2003 Quid Novi
ETHICS & LAW PANEL:
EXAMPLE PROBLEMS
by Chantal Beaubien, Law ill
1. Scenarios from Civil Law of the contract with Raw Material Corp. cessful in part. Arnold appealed the
You find yourself in a real moral clerk's decision on the motion for par
SCENARIO 1 bind. You know that if you hold back ticulars and lost. He made a motion to
You and your partners have had a long on the Raw Material contract, Acme have the action dismissed, which he
standing relationship with Acme Manu will likely lose the deal to Beta. lost, and then tried to get leave to ap
facturing, which is a publicly traded Can you betray your partner's peal to the Court of Appeal. He sub
company. As outside counsel, your in confidence and confront Mr. Mobile poenaed the Plaintiff's President for
structions are, as a matter of company with what your partner told you "off examination on discovery and refused
policy, supposed to come from in-house the record"? to postpone the examination when the
counsel. However, for the last four or If you let on that you know what Plaintiff's attorney said she had
five years you have developed a close he is up to, Mr. Mobile will probably planned to be in Florida with her fam
working relationship with the President tell you that what you have been told ily that week. During the examination,
and CEO, Mr. Mobile. When you are is privileged and confidential, and that he badgered the witness. Also, when
asked to give a presentation to the your firm is bound not to make any dis opposing counsel intervened, Arnold
Board, it is usually at the invitation of closure to Acme. If you are told to re told her she didn't know the rules of
Mr. Mobile. In practice, Mr. Mobile is main silent, is that the end of it? procedure and referred to her as "Miss"
the one you report to, although you In any event, what are you go and "My Dear". The bank's VP at
keep in-house counsel informed ing to do about the draft agreement with tended the hearing of one of the inter
One of you partners frequently Beta? You have firm instructions from locutory motions and was distressed
does work for a competitor of Acme, a Mr. Mobile not to send the draft to Raw that the judge seemed to be paying a
company known as Beta Manufactur Material Corp.'s lawyer. If you don't, lot more attention to the other lawyer
ing. You had drinks and dinner at your the deal may fall through the cracks in than to Arnold. The hearing has been
partner's house on Saturday night. Your a day or two. If you do, you will be postponed from an earlier date on
partner has learned that Mr. Mobile has disobeying clear instructions from Mr. which Arnold had insisted in proceed
worked out a deal with Beta. Your part Mobile. ing, notwithstanding the fact that the
ner tells you "off the record" that Mr. What do you do? other lawyer was in another courtroom
Mobile has not told anyone about his and had sent a stagiaire to hold the fort
plans to jump ship, but that he plans to SCENARI02 in the meantime. The action is for
leave Acme high and dry at the end of You are the partner responsible $80,000, and to date Arnold has racked
the coming week. for Zeta Bank Corp. The Firm is han up time of $18,000 before even filing
The timing could not be worse dling many files for this long-standing a defence. Of this amount, $8,000 is
for Acme, since the company is in client. One of them is a piece of litiga for research time relating to the inter
volved in some very important discus tion relating to a letter of credit dispute. locutory appeal attempts.
sions for a strategic alliance with its key About a year ago, you referred the file The bank's VP states further
supplier, Raw Material Corp. Mr. Mo to a bright young associate, Arnold that, at the beginning of the file, she
bile has been conducting the negotia Terminator. Arnold has a lot of prom asked Arnold if the case could be
tion with Raw Material Corp. practi ise as a litigator and future partner. settled, to which he replied that there
cally on his own, with your input on When you assigned him to the file, you was no point in exploring settlement
told him to do everything possible to until the Plaintiff and their lawyer had
the legal issues and the drafting of the
contract. On Monday, you were sched please this important client. The bank's been run through the mill so that they
uled to send the final draft of the agree senior vice-president for legal affairs could have a taste of what would hap
ment to Raw Material's lawyer for sig has asked to see you about the file. She pen if the case went to trial. Subse
nature. You quickly realize that when wants to see you alone. quently, someone at the bank has heard
Mr. Mobile moves to Beta, the deal The bank's VP relates the fol that the Plaintiff's President was so in
worked out with Raw Material Corp. lowing. Since the institution of the ac furiated by the way he was treated dur
will likely follow him. tion against the bank, Arnold has made ing his examination on discovery that
On Monday morning, Mr. Mo four interlocutory motions, all of which he has told members of his trade asso
bile calls to instruct you to put every have been unsuccessful, except for a ciation not to deal with the bank.
thing on hold regarding the signature motion for particulars, which was sue- What are you going to tell the
9
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Quid Novi 21 janvier 2003
bank's VP? What are you going to say Tony was a wealthy individual having be first witness in the case.
toArnold? a net worth of approximately $5 mil What do you do?
lion with a thriving business. Tina did
SCENARI03 not have any material assets and had SCENARIOS
You have received a letter from always worked to support herself and Jimmy and Gina were married
the Secretary-Treasurer of Fiduciary her son from a former marriage, never in 1985 in the regime of partnership of
Trust Company, asking you to acquests. Divorce proceed
provide a response to their ings are taken in 1999 and
auditor's request on claims One week before the trial, Tony both parties wish to settle all
and possible claims. The en admits to you for the frrst time that matters between them amica
quiry letter lists all of the bly. Each party produces a
claims against Fiduciary of he did indeed have monies in an off truthful statement of their re
which you and members of shore account but that it would be spective assets and liabilities.
your firm are aware. How Settlement discussions ensue
impossible to prove
ever, it does not mention a and an agreement in principle
possible claim. You learned is reached. Prior to the draft
about the possible claim a ing of the agreement, Gina re
week ago, and were asked to ceived an offer for her com-
keep the matter strictly confidential. It having earned more than $20,000 a pany, which would triple the value of
appears that one of the senior trust of year.
her shares.
ficers at Fiduciary has absconded with At the beginning of the mar She has reached an agreement
over a hundred million dollars worth riage, the lifestyle of the parties was in principle and Jimmy had had noth
of negotiable securities belonging to an sumptuous and no expense was spared ing to do with the success of her busi
estate administered by the company. To for clothing, meals, jewelry and travel. ness. She retains counsel and asks
make matters worse, the insurance cov Unfortunately, Tony's business as well whether she is obliged to disclose the
erage for employee fraud has been al as the marriage unraveled. Tony sued increase in her assets.
lowed to lapse. If the employee is not for divorce in 1998 and Tina countered
What is your advice?
caught and the securities recovered, the requesting a lump sum of $2 million
estate will eventually learn of the de and alleging not only that she had lived 2. Scenarios from Criminal Law
falcation and sue. A suit of that magni a wonderful lifestyle but, notwithstand
tude would severely damage the ing Tony 's recent plea that business was
SCENARIO 1 - Handling Physical
company's image and drive down the terrible, Tony had substantial hidden
Evidence
value of its shares. Other clients might assets off shore.
The Smoking Gun:
withdraw their business and the com Tony was deposed by Tina's
A client enters your office, in
pany could even be threatened with in lawyer and was asked and was asked
forms you that she has just killed some
solvency. Private investigators have whether he had any assets of any na
one in the course of a robbery, and
been retained to track down the villain, ture whatsoever and particularly any
places the "smoking gun" on your desk.
and there is a chance he might be bank account off shore. Tony vigor
She also informs you of the where
caught before it is too late to recover ously denied same and stated unequivo
abouts of the jewels which she took
the securities. If they are successful, no cally that he had no money whatsoever
from the deceased's home. She offers
one may ever learn about what hap off shore. After the deposition, Tony
to bring the jewels to your office for
pened and it will be business as usual. decided to engage a new lawyer and
safekeeping. She explains that the de
In the response to the audit in comes to you.
ceased is actually her sister, and that
quiry, a copy of which is sent to the Preparations for the trial on the
she robbed her in order to reclaim their
auditors, can you remain silent about merits are commenced. You went over
late mother's jewels which in her opin
the possible claim? Should you refuse Tony's testimony many times and Tony
ion, her sister had wrongfully withheld
the client's request to provide a re repeatedly denied the existence of any
from her since their mother's death. She
sponse letter? What advice should you off shore assets. One week before the
also tells you of a letter she had writ
give the client regarding disclosure of trial, Tony admits to you for the first
ten to her sister a few weeks earlier in
the incident to the shareholders at the time that he did indeed have monies in
which she demands the return of the
upcoming annual meeting? an off shore account but that it would
jewels "or else". She tells you that upon
be impossible to prove and it was only
receipt of such letter, her sister had
SCENARI04 $400,000 and not the millions alleged
stormed into her office, ripped it into
Tma and Tony were married in by Tina. The transcript of Tony's ex
tiny pieces, and told her stay out of her
1992 and signed a marriage contract amination denying the existence of any
life forever. She, however, had kept a
adopting the regime of separation as to off shore money under oath has been
copy for herself. She asks you what she
property. At the time of the marriage, filed into the Court record. Tony will
should do with it.
10