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Archive for the ‘Legal Ethics’ Columns

The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike . . . [more]

Posted in: Legal Ethics

How Would Ruth Bader Ginsburg’s Comments About Donald Trump Play Out in Canada?

Donald Trump and his polarizing ideas have attracted widespread criticism. However, I suspect that few expected to find a harsh, vocal critic in a United States Supreme Court justice. Judges, after all, are held to the highest standards of impartiality, and political statements can easily raise the question of judicial bias. Against this backdrop, Justice Ruth Bader Ginsburg’s comments about Trump’s presidential campaign present an interesting case study. What happens when a judge is openly opposed to a presidential candidate but has no relevant case on the docket? Could such a comment lead to a finding of bias in Canada? . . . [more]

Posted in: Legal Ethics

A Risky Appetite for Apps: Can Best Practices Help?

Apps are everywhere. A 2014 study found that there are roughly 18 million apps users in Canada and that Canada’s apps enterprises generate $1.7 billion annually. These numbers have presumably only increased in the last two years.

The market for legal apps, in particular, is significant and growing. Research that I’ve done along with colleagues at the University of Ottawa estimates that there are now several dozen apps available in Canada that purport to help with law-related issues. This number is continually growing. In the United States, the numbers are exponentially larger: hundreds of legal apps are available.

The developers . . . [more]

Posted in: Legal Ethics

Reforming the Judicial Discipline Process: Putting the Public in the Public Interest

Over the summer, Justice Canada engaged in a low-key consultation on “Judicial Discipline Process Reform”, releasing a bland discussion paper appropriately-titled “Possibilities for Further Reform of the Federal Judicial Discipline Process”. The title is at once both misleading and accurate. It is in part misleading because there have been no significant changes to the federal judicial discipline process as set out in the Judges Act since that statute was enacted in 1971. It is accurate because the Justice Canada consultation comes on the heels of reforms enacted by the Canadian Judicial Council (CJC) in 2015 after . . . [more]

Posted in: Legal Ethics

The Devil’s Advocate

Gavin MacKenzie, Amy Salyzyn and I participated in August in the Ethics Debate at the Canadian Bar Association Legal Conference. Amy moderated the debate. Gavin and I were the debaters. The topic was Should lawyers have a monopoly on the provision of legal services? I argued for the proposition. Gavin argued against.

The general topic was broken up into three separate propositions, each of which was separately debated. My role was to support the first two propositions and to argue against the third.

  • There is no good reason to allow anyone other than lawyers to provide legal services.
  • Professional
. . . [more]
Posted in: Legal Ethics

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]

Posted in: Legal Ethics

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]

Posted in: Legal Ethics

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]

Posted in: Legal Ethics

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]

Posted in: Legal Ethics

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]

Posted in: Legal Ethics