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OSC program to offer free legal advice to cash-poor defendants

OSC program to offer free legal advice to cash-poor defendants

Peter Power/Peter Power/The Globe and Mail

The Ontario Securities Commission is launching a new program to provide free legal advice to people who cannot afford to hire expensive securities lawyers.

The regulator is facing a rash of cases involving people who are appearing without legal counsel, many of them lower-income earners who balk at paying hundreds of dollars an hour to senior Bay Street lawyers. Seventy per cent of people named in OSC cases last year did not have a lawyer representing them, according to Karen Manarin, OSC deputy director of enforcement.

That means cases are being bogged down as people struggle to represent themselves in unfamiliar and highly specialized matters of securities law.

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"Sometimes it's very important to have someone who understands the process and can explain the process and give you advice," Ms. Manarin noted.

The pilot program, which launches this fall, will initially involve five younger lawyers from Toronto firms who have volunteered their time to help with cases without pay. But the scope could be expanded once the program is reviewed after its first year of operation. The lawyers have all received extra training in securities matters, and have senior mentors at their law firms who can give them advice if needed, Ms. Manarin said.

There will be no financial means test to qualify for the free legal help, she said, because it is difficult to administer such a test, especially because some cases involve people accused of running boiler rooms and committing financial frauds, who are unlikely to openly declare their true financial status.

The OSC anticipates people with money will be disinclined to take advantage of the program, however, because they will not get to choose their lawyer, and the volunteer lawyers participating in the program are relatively junior counsel.

The lawyers will help people only with pre-hearing conferences, settlement hearings and sanction hearings. They would not be available for people involved in full "hearings on the merits," which are tribunal hearings similar to trials. Those hearings are considered too lengthy a commitment from participating lawyers, Ms. Manarin said.

James Camp of Toronto law firm Gowling Lafleur Henderson LLP, who was called to the bar five years ago, said he helped pitch the idea of volunteer lawyers to the OSC after he had worked for free on a securities case and found it to be a great learning experience.

"A lot of my peers are keen to develop their skills in securities litigation, but the types of people that really need our services aren't able to pay for them," he said. "If we don't get involved and take on these cases, we'll never build up the substantial skills we need to represent people who are capable of paying for our fees 10 years down the track."

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A fairly small group of senior lawyers in Toronto handle many of the largest securities cases, Mr. Camp noted, so it isn't easy for a junior lawyer to get experience taking the lead on a case before the commission.

Most of those senior lawyers charge hundreds of dollars per hour in fees, putting their services out of reach for all but the wealthiest. "Were I to be swept up in an OSC investigation, I couldn't afford to retain myself. That's the dilemma you're faced with," Mr. Camp said.

Gillian Dingle of Torys LLP, a six-year lawyer who will participate in the program next year, said the work will give her a broader range of experiences relatively early in her career. "This gives me the opportunity to have that sort of advocacy experience and develop relationships with the commission that I might not otherwise get until I'm a few years more advanced in my career."

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