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Archive for the ‘Legal Ethics’ Columns

A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

Everyone has an obligation to report when they have reason to believe that a child is in need of protection, including lawyers – except where that information is protected by solicitor-client privilege. If the information is confidential a lawyer is required to report it just like anyone else; but if the information is protected by solicitor-client privilege, a lawyer can only report it pursuant to an exception. The future harm exception provides a lawyer with the discretion to disclose a limited amount of qualified information to try to avert serious physical or psychological harm, or death.

The Duty to Maintain

. . . [more]
Posted in: Legal Ethics

Harassment in the Legal Profession: A Few Bad Apples?

Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.

“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often . . . [more]

Posted in: Legal Ethics

Equality, Diversity and Inclusion – What Can We Agree on and What Can’t We?

I recently attended part of RODA’s 5th Annual Diversity Conference which was entitled Resilience in Challenging Times. I was particularly interested in hearing the panel Building Consensus: The Future of EDI at the LSO. There were four panelists; two from the Stop the SOP slate and two who had been members of the Law Society Challenges Task Force.

The context for the panel appeared to me to be intentionally post-Statement of Principles, to address questions beyond the debate about compelled speech and belief. Perhaps not surprisingly, there was little if any consensus and little apparent attempt to find any. . . . [more]

Posted in: Legal Ethics

The Intersection of Ethics and Well-Being

ABA RESOLUTION 105

The ABA House of Delegates adopted Resolution 105 at the 2018 ABA Midyear Meeting. The resolution supports the goal of reducing mental health and substance use disorders and improving the well-being of lawyers, judges and law students. It urges stakeholders within the legal profession to consider the recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The pursuit of lawyer wellness has spread rapidly through law firms, bar associations, state bars and state supreme courts.

The National Task Force on Lawyer Well-Being, assembled in August 2016 to “create a movement toward . . . [more]

Posted in: Legal Ethics, Legal Technology, Practice of Law

Judges Need Ethics Rules, Not Just Ethical Guidance

Canada is extremely fortunate to be served by a highly competent and responsible judiciary. But judges, like all of us, experience ethical challenges as they fulfill their vitally important social functions. However, many Canadian judges are not subject to a binding code of conduct that can shepherd their behaviour. Instead, they are only offered advice to assist them in navigating ethical issues. We suggest that this should change.

There are currently over 1000 federally appointed judges in Canada. Although these judges are subject to a few restraints by virtue of the Judges Act (such as, for example, a prohibition on . . . [more]

Posted in: Legal Ethics

Denis v. Cote and the Myth of Onus in Journalist Shield Law

In Denis v. Cote, the Supreme Court considered Canada’s new journalist shield law, the Journalist Sources Protection Act (JSPA).[1] The JSPA, which amends both the Canada Evidence Act and the Criminal Code, altered the common law on protections afforded to the confidential sources and notes of journalists.[2]

The common law regime balances two competing public interests in deciding whether names or notes must be disclosed to police or civil plaintiffs. In the criminal context, there is the public interest in the detection and prosecution of crimes (law enforcement), to which journalist notes and sources are . . . [more]

Posted in: Justice Issues, Legal Ethics

Coercive Control: What Should a Good Lawyer Do?

I am currently conducting research to determine whether coercive control can be considered psychological harm for the purpose of the future harm exception to confidentiality and solicitor-client privilege.[1] My research is supported by the OBA Fellowship in Legal Ethics and Professionalism Studies. In that research I’m determining whether a lawyer can disclose, but doing that research has provoked me to wonder whether a lawyer should disclose.

In December 2017, Andrew Berry murdered his children, six-year-old Chloe and four-year-old Aubrey. Berry was convicted of second degree murder. Sarah Cotton, the girls’ mother, feared Berry, claiming that he had made threats . . . [more]

Posted in: Legal Ethics

Dispatches From the Front Lines of Canadian Legal Ethics

On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date.

Thematic Index

  • Access to justice (see presentations #3 and #11 below)
  • Zealous advocacy and its limits (see presentations #1 and #2 below)
  • Harassment and discrimination within the profession (presentations #16, 17, 18)
  • Teaching ethics in law school (presentations #6, 7, 8, 9)
  • The Regulation of Judges (presentations #12, #15)
  • The limits of “business-like” lawyer
. . . [more]
Posted in: Legal Ethics

It’s Finally (Sort Of) Here!: A Duty of Technological Competence for Canadian Lawyers

For years, Slaw commentators (including myself) have called for Canadian law societies to adopt a duty of technological competence for lawyers. On October 19, 2019, a major development occurred, which has largely gone unnoticed. The Federation of Law Societies of Canada amended its Model Code of Professional Conduct to add the following commentary to the competence rule (r. 3.1-2):

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated . . . [more]

Posted in: Legal Ethics

Thoughts About Self-Regulation in the Public Interest

It is no secret that that self-regulation can be compromised by the tension between the public interest and the interest of the regulated profession[i]. This tension leads some to say that self-regulation is inherently flawed and should come to an end.

In this column, I suggest that:

  • it may be useful to recognize that conflicting professional interests are more in tension in some areas than in others and accordingly to look for ways to mitigate that tension where it is potentially problematic
  • there may be limited measures that can be used to mitigate such tension without having to
. . . [more]
Posted in: Legal Ethics

Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned

What privacy issues arise when legal apps are used by the public? What are current best practices for safeguarding privacy interests when developing legal apps? What do developers think? What challenges arise in developing privacy best practices for legal apps?

Along with my colleagues Suzanne Bouclin, Jena McGill and Teresa Scassa, I recently completed a project that tried to answer these questions. A pre-print version of the peer-reviewed article that discusses this project at length can be found here. This column will provide highlights of the discussion contained in that article.

Background

We were inspired to develop privacy best . . . [more]

Posted in: Legal Ethics

Get It in Writing: Legal Fees, Retainer Contracts and Newell v. Sax

Should a lawyer decide how much his client should pay him, and then write himself a cheque for that amount, without the client’s agreement? Is a discretionary judicial decision about the value of a legal service an adequate substitute for an agreement between lawyer and client? In Newell v. Sax, the Ontario Court of Appeal effectively answered “yes” to both of these questions. In my view, arbitrary fees invented by lawyers, or judges, are a grave and unnecessary threat to legal ethics. The law should insist on upfront disclosure and clear contractual agreements about legal fees, absent very exceptional . . . [more]

Posted in: Legal Ethics