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Archive for the ‘Legal Ethics’ Columns

Judgmental Judges

Judges exercise considerable power, and discharge a crucial public function. They identify, interpret and even create the rules that govern us. They decide what happened. And they determine the legal consequences of what happened.

But judges also exercise a defined and limited public function, and in doing so they are human, not superhuman. Judges determine and apply the law, but they do not decide questions of morality outside the law; they do not decide what it means to be a good person except as the law defines goodness. They do not – except in the specific ways the law asks . . . [more]

Posted in: Legal Ethics

Too Many New Lawyers? Build a Wall?

Over the last few years, there has been much debate about how to deal with the significant increase in the numbers of Canadian and foreign law school graduates seeking licensing in Ontario. While the number of articling positions has significantly increased, the number of applicants has increased even more quickly. The Law Practice Program (LPP) was established several years ago as an additional pathway to address this shortfall and to pilot a new approach to experiential training.

With a recent proposal to terminate the LPP facing substantial opposition, the Law Society of Upper Canada is now developing “long-term recommendations for . . . [more]

Posted in: Legal Ethics

Criticizing Judges in a Trump Era

What does ethical criticism of a judge or judgment require? Or, to put it slightly differently, on what basis might we say that a criticism of a judge or judgment is improper?

Recent comments by Donald Trump make this question seem straightforward. The President’s tweets were clearly inappropriate. It is not acceptable for the President to refer to a Federal Court trial judge as a “so-called judge”, to describe the judge’s decision as terrible (Feb 4), to call a Federal Appeals Court judgment a “disgraceful decision” (February 10) and, most chillingly, to say “Just cannot believe a judge would put . . . [more]

Posted in: Legal Ethics

Cultural Competence and the Next Generation of Lawyers and Lawyer Regulation

Every year, I have the pleasure of teaching first year law students at the University of Ottawa in a dispute resolution and professional responsibility course. A big part of the course involves having students gain “hands-on” experience through simulations where they interview clients, write client advice letters, negotiate with opposing counsel and conduct mediations. For someone with a passion for legal ethics like me, the course is extra fun because this practical experience is coupled with extensive instruction on professional responsibility issues. Among other things, at the end of the term, the students write a final paper reflecting on one . . . [more]

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Time for Webcams in the Courtroom? the Imperative of Transparency and Accountability

“Sunlight is said to be the best of disinfectants.” So declared Louis Brandeis over a century ago. Brandeis’ argument was that shining a light on activities both exposed wrongdoing as well as deterred it. The second part of his quote is that “electric light the most efficient policeman.”[i] Writing in 1914, Brandeis was ahead of his time. In 2017, his words should make us sit up and take notice. Especially when it comes to the administration of justice.

Justice Morris Fish – recently named to the Order of Canada – understood Brandeis’ quote more than others. Fish was a former . . . [more]

Posted in: Legal Ethics

Access to Justice Needs Access to Research

In December, the UK Competition & Markets Authority released its Legal services market study focused on individual consumer and small business experience of purchasing legal services in England and Wales. Not surprisingly, this report (the “CMA Market Study”) found:

Overall, we have found that the legal services sector is not working well for individual consumers and small businesses. These consumers generally lack the experience and information they need to find their way around the legal services sector and to engage confidently with providers. Consumers find it hard to make informed choices because there is very little transparency about price, service

. . . [more]
Posted in: Legal Ethics

Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization . . . [more]

Posted in: Legal Ethics

Transparency Can Be Tricky: Questions About Solving the Lawyer Quality Information Gap

In a recent Slaw blog, Malcolm Mercer thoughtfully explores how information asymmetry between legal service providers and consumers may impact access to justice. He suggests that creative solutions are necessary in order to provide the public with better information about the quality of lawyers and the legal services that they provide.

Mercer makes a good point: if the public feels that it can’t accurately assess the quality of legal services, there is a risk that people won’t retain lawyers or, at the very least, people may feel compelled to hire those practitioners who charge lower rates even if they . . . [more]

Posted in: Legal Ethics

Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy Era”?

What role should empathy have in a system of laws? What does an empathetic legal system look like?

In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more

. . . [more]
Posted in: Legal Ethics

Stepping Up for Diversity: Law Societies Must Begin to Address the Challenges Faced by Racialized Lawyers and Paralegals

Law Societies have a lot on their plates these days: ABS, access to justice, advertising, articling . . . and that’s only the first letter of the alphabet! It is critical that the work of the Law Society of Upper Canada’s Working Group on the Challenges Faced by Racialized Licensees not get lost in all this regulatory alphabet soup. The report is important. It is groundbreaking. It is also controversial. And it is necessary. This report will be debated by Ontario’s benchers on December 2nd. The Law Society of Upper Canada has a real opportunity to exercise strong . . . [more]

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Access to Justice and Market Failure

Lemonish Lawyers? [1]

The problem of access to justice is likely the result of a number of causes. Unnecessary complexity in substantive and procedural law is likely part of the problem. Our adversarial court-based administration of justice is problematic both where powerful actors have disputes with ordinary people and where family disputes require resolution. Ease of access to information through the internet may be both part of the solution and part of the problem.

Market regulation and access to justice

Our approach to legal services regulation plays a role as well. Limiting who can provide legal services restricts how . . . [more]

Posted in: Legal Ethics

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