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Archive for the ‘Legal Ethics’ Columns

Why Do We Regulate Lawyers?

This is my first legal ethics column for Slaw. I am delighted and honoured to be taking the place of my former colleague, mentor, and all-around legal ethics and regulation rock star, Malcolm Mercer, who recently assumed the role of Chair of Ontario’s Law Society Tribunal. In the coming months and beyond, I look forward to using this space to consider rules of professional conduct and discipline; governance issues in lawyer regulation; legal education and training; and the future of legal services provision. But before diving into these topics, I propose to take a step back and first consider . . . [more]

Posted in: Legal Ethics

Is It Time to Regulate Collaborative Practice?

Collaborative practice is a dispute resolution process that is primarily used in family law, and it is currently unregulated in Canada. The forthcoming amendments to the Divorce Act include collaborative practice as a “family dispute resolution process” that a lawyer ought to “encourage” her client to consider, where “appropriate”. This suggests to me that a process that has for the last 30 years has been largely community-based, has finally come into its own – into the federal scope of the Divorce Act and therefore into the collective conscience of all Canadian family lawyers. This begs the question of whether it . . . [more]

Posted in: Legal Ethics

A Taxonomy for Lawyer Technological Competence

Over the past decade, many commentators, myself included, have argued that lawyers should have a duty of technological competence. This duty now exists: in October 2019, the Federation of Law Societies of Canada amended its Model Code rule on competence to include explicit reference to technological competence. Several provincial and territorial law societies have incorporated this amendment into their respective codes, and more will hopefully soon follow suit.

The fact that there now exists a formal duty of technological competence raises the question of what, exactly, does this duty entail? What does this duty require from lawyers? In a strict . . . [more]

Posted in: Legal Ethics, Legal Technology

If You See Something, Say Nothing: Why Lawyers Don’t Report to the Law Society

In identifying professional misconduct, legal regulators are heavily reliant on client complaints and receive relatively little help from practitioners. For example, 71% of complaints to the Law Society of Ontario in 2019 were brought forward by members of the public (typically clients) while only 12% came from legal professionals. The problem is that there are many forms of professional misconduct that only professionals, and not clients, can readily identify. Misconduct therefore goes undetected, leaving clients and others to be victimized by bad lawyers who should have been caught after previous offences.

This is especially true in practice areas where clients . . . [more]

Posted in: Legal Ethics

Rethinking Ontario’s Anti-SLAPP Law After Bent v. Platnick

In 2015, Ontario passed legislation aimed at protecting defendants from lawsuits stifling expressions made in the public interest. One aspect of this law is that it allows defendants to successfully bring an expedited motion to dismiss even in circumstances where the plaintiff’s action has substantial merit and there are no valid defences that could reasonably be advanced at trial.

This is known as the “public interest hurdle” analysis and, more exactly, provides that an action will not be dismissed if the plaintiff can show

the harm likely to be or have been suffered by the responding party [plaintiff] as a

. . . [more]
Posted in: Justice Issues, Legal Ethics

The Myth of the Honest Negotiator

A lawyer has an obligation to be honourable and a duty of integrity. In a negotiation, a lawyer will not be completely honest. Both of these statements are true, but they seem contradictory. The Federation of Law Societies of Canada’s Model Code of Professional Conduct, does not expressly prohibit a lawyer from lying to another lawyer, but the Code does include provisions that promote integrity, honesty and honour. In this post, I attempt to defend the idea that an honourable lawyer can engage in a small range of permitted deception during negotiations.

James White famously framed the question of . . . [more]

Posted in: Legal Ethics

Judicial Analytics: Facing Uncomfortable Truths

For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”

In France, it would seem that such conversations are . . . [more]

Posted in: Legal Ethics

Supercalifragilisticexpialidocious Lawyers

Lawyers work hard and their successes should be celebrated. Clients have a hard time self-evaluating the potential quality of legal services before hiring a lawyer. Both these statements are true; neither is a good reason for Canadian law firms to collectively spend millions of dollars and thousands of hours facilitating for-profit private lawyer rankings. This column argues that large Canadian law firms (and boutiques that serve similar clients) should collectively agree to stop participating in for-profit private lawyer ranking services.

Currently, there are multiple prominent lawyer ranking services that profile lawyers in large law firms/boutiques as well as the firms . . . [more]

Posted in: Legal Ethics

Mediation: A Warning Not to Bully a Client Into Settlement

If a lawyer fails to prepare his client for mediation, and bullies her into a settlement, a court may find the lawyer negligent and award damages to the client amounting to the difference between what she settled for and what she likely would have obtained in court (or arbitration). That is what happened in Raichura v Jones, 2020 ABQB 139, a recent decision from the Alberta Court of Queen’s Bench.[1] In this case, the lawyer was ordered to pay damages of $131,939. In other words, this case is a lawyer’s nightmare. The facts may be uncommon, but . . . [more]

Posted in: Legal Ethics

Enlightenment Now!

Most of us watch politics in the United States with alarm. Falsehoods are routinely offered as if truth no longer matters. Genuine expertise is devalued in favour of unfounded opinion and conspiracy theory. Candidates espousing bizarre conspiracy theories have gained political traction. Calls for hatred and division have become normalized. Shame no longer seems to constrain.

Canadian political culture has not descended to the same depths but there is reason for concern. On social media and elsewhere, trolling, derision and contempt are commonplace. While it would be naïve to think that there were halcyon times of good faith public debate, . . . [more]

Posted in: Legal Ethics

Justice Patrick Smith’s Conduct Should Remain a Cautionary Tale

On May 21, 2020, the Federal Court released a decision (2020 FC 629) strongly in favour of Justice Patrick Smith, a judge of the Ontario Superior Court of Justice, and highly critical of the Canadian Judicial Council. It is unfortunate that the decision is so one-sided. The CJC deserves some of the criticism. However, the position taken by the CJC is not as untenable as the court claims. More importantly, there is legitimate cause for concern about Justice Smith’s conduct.

This litigation arises from events in the spring of 2018 when Justice Smith accepted an appointment as the Interim Dean . . . [more]

Posted in: Legal Ethics

A Good Day for Self-Regulation: The LSO’s Family Law Paralegal Proposal

Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.

The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except . . . [more]

Posted in: Legal Ethics