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Archive for the ‘Legal Ethics’ Columns

Indecent Proposal?: Whistleblowing and Putting a Price on Breaching the Rules of Professional Conduct

Earlier this year, I wrote a column expressing concerns about a proposed Ontario Securities Commission (“OSC”) policy designed to encourage certain individuals, including in-house lawyers, to report serious securities or derivatives-related misconduct to the OSC in exchange for financial rewards of up to $5 million. Similar concerns were relayed directly to the OSC in January 2016 in a letter I co-signed with other legal ethics scholars and practitioners and in a letter from Janet Minor, the then-Treasurer of the Law Society of Upper Canada (“LSUC”).

One major concern raised was that the proposed policy would allow, and indeed, encourage in-house . . . [more]

Posted in: Legal Ethics

Taking Self-Regulation for Granted?

“It is not a right. Self-regulation is very much a privilege.” So declared Premier Christy Clark at the end of June when she announced that the BC government would take over regulation of the real estate industry in that province.

As those in BC know, the BC housing market has been on fire over the past year. Potential home buyers face a crisis of affordability. Questionable practices by some real estate agents and a failure to respond by the Real Estate Council of British Columbia (RECBC) fuelled a crisis of confidence in the regulator. And the government stepped in.

We . . . [more]

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Unmet Legal Needs – the Challenge to Legal Practice and to Self-Regulation

Regulation of legal services differs in important ways across the common law world. In Canada, self-regulation is generally[1] the approach. Canadian law societies are authorized by provincial legislatures to decide who can practice law and provide legal services[2]. The substantial majority of the governors of the law societies are lawyers elected by lawyers. In Ontario, paralegal benchers are elected by regulated paralegals.

In England and Wales, the Solicitors Regulation Authority and the Bar Standards Board are the regulators. The majority of the governors of these regulators are not solicitors or barristers.

In the United States, the state . . . [more]

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Access to Justice in Criminal Law

The Charter of Rights and Freedoms guarantees everyone the right to retain and instruct counsel on arrest or detention. What do we mean by that? Specifically, do we mean it? Do we mean it for people other than the relatively affluent few?

Canadian governments claim that we do. The vision of Legal Aid Alberta states that it aims for “An Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Legal Aid Ontario’s website says that it “provides legal assistance for low-income people”.

Justice Ian Nordheimer isn’t buying it. In a stinging judgment issued . . . [more]

Posted in: Legal Ethics

Judicial Confidentiality

Do judges and former judges owe a duty of confidentiality? This might seem like a silly question. After all, the legal system zealously protects judicial deliberations from compelled disclosure. However, when it comes to recognizing any restriction on judges’ ability to voluntarily disclose or use such deliberations, to date there has been silence. Hopefully, that may soon change as various actors consider the implications of retired judges returning to the practice of law.

The Supreme Court has recognized an absolute privilege that protects the confidentiality of communications between judges in cases: see Mackeigan v. Hickman (1989) and Ontario (Public Safety . . . [more]

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Apps and A2J: Mapping the Opportunities and Risks

In a 2015 speech, Chief Justice Beverley McLachlin implored the legal profession to “accept the idea of change”, including the reality that some tasks that have been traditionally carried out by lawyers can now be more effectively performed through technological means.

It is questionable how much the Canadian legal profession, as a general matter, has taken up the Chief Justice’s call. Developments in one promising area—mobile phone and web-based apps that aim to enhance access to justice (“A2J”)—are largely being driven by individual innovators seeing unmet legal needs and thinking outside the box for new ways to harness technology . . . [more]

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A National Code of Conduct?

I like the Federation of Law Societies’ Model Code of Conduct. It’s not perfect. But it represents the culmination of considerable effort and reflection by intelligent and thoughtful lawyers. It provides meaningful guidance on a number of issues that lawyers face, particularly in relation to conflicts of interest. It provides a vehicle for national discussion and for work on emerging issues and on areas requiring reform. The Federation has done some truly great things with the Code, such as having a Standing Committee to update and revise the Code on an ongoing basis, and creating an interactive website . . . [more]

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Yet Again the Question Is “Where Were the Lawyers?”

Jasminka Kalajdzic recently highlighted a New York Times column entitled Panama Papers Show How Lawyers Can Turn a Blind Eye. The column reported that Ramón Fonseca, one of the founders of the Panamanian firm Mossack Fonseca, “told The New York Times that the lawyers did nothing wrong in helping their clients set up shell companies”. Mr. Fonseca was quoted as saying:

We are like a car factory who sells its car to a dealer (a lawyer for example), and he sells it to a lady that hits someone. The factory is not responsible for what is done with the

. . . [more]
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Orphaned Again? the Place of Government Lawyers Within New Regulatory Paths

In an article published in 2010, my colleague Adam Dodek smartly observes that “government lawyers and the work that they do are largely ignored…[t]hey are barely acknowledged in codes of conduct, underrepresented in many law societies and undertheorized in academic scholarship.” Adam also approvingly cites from Allan Hutchinson who characterized government lawyers as “the orphans of legal ethics” because so “little energy has been directed towards defining and defending the role and duties of government lawyers.”

It is unclear how much has changed since Adam made the above observations in 2010. Undoubtedly, the Edgar Schmidt case has recently brought greater . . . [more]

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Ending Bullying in the Legal Profession

Lindsay Cameron‘s best-selling novel BIGLAW is billed as “The Devil Wears Prada meets One L, BIGLAW provides an insider’s view of the cut-throat world of big New York law firms.”

Most of the partners in the book are bullies. The book is a good read not so much because the characters and the storylines are outrageous but rather because both are credible and familiar. Cameron, a graduate of UBC’s Faculty of Law, was a corporate associate for six years in large law firms in both Canada and the United States. During that time, she no doubt accumulated a . . . [more]

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Boiling Frogs, Privilege and Professional Conduct

Forty years ago, the confidentiality rule now found in the Federation of Law Societies Model Code was first adopted in the CBA Code of Professional Conduct. The confidentiality rule makes passing reference in the commentary to privilege and makes clear that the confidentiality rule must be distinguished from solicitor-client privilege. The Model Code does not expressly require that lawyers uphold solicitor-client and litigation privilege.

I expect that Canadian lawyers would generally accept that proper professional conduct includes upholding solicitor-client and litigation privilege. After forty years, it is appropriate to question whether the Codes and Rules of Professional Conduct ought . . . [more]

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What Should a Code of Conduct Do (Or Not Do)?

Lately I’ve been spending a lot of time with law society codes of conduct. Not because I’m a law nerd (although I am), but because I’m preparing the second edition of my book Understanding Lawyers’ Ethics in Canada. Much of the time I’m impressed with the codes. They provide clear and helpful guidance to lawyers on a number of important questions of practice, such as how to manage a joint retainer, or withdrawal from representation in the context of a criminal trial. A lawyer trying to answer a question about her duties should start by consulting her law society’s . . . [more]

Posted in: Legal Ethics