Canada’s online legal magazine.

Archive for the ‘Legal Ethics’ Columns

What Is the Mandate of the Law Society?

The Law Society of Ontario has a duty to maintain and advance the cause of justice and the rule of law[1]. Does that mean that the Law Society is empowered to intervene in private litigation in order to advance the cause of justice? Is the Law Society is entitled to involve itself in judicial review cases where it is alleged that another administrative body has acted outside of its jurisdiction, or for improper purposes, in breach of the rule of law principle?

The Law Society has a duty to act so as to facilitate access to justice for . . . [more]

Posted in: Legal Ethics

Celebrating Alice

In less than 15 years in the legal academy, Alice Woolley accomplished more than many do in an entire career. As she moves onto a new stage in her professional life, this post takes a moment to celebrate Alice for all she’s done for the legal ethics community in Canada and internationally.

For those readers who missed the news, on November 21, 2018, the federal Minister of Justice announced that Alice Woolley has been appointed a Justice of the Court of Queen’s Bench of Alberta in Calgary. And so, Professor Alice Woolley became Justice Alice Woolley. With this change in . . . [more]

Posted in: Legal Ethics

Why We Can’t Ban Legal Advertising

Whenever I see billboard or TV advertising for law firms, I worry. I don’t worry about the “dignity” of the legal profession; I worry about the people at whom these ads are targeted. Choosing the best possible firm can make a major difference in the long-term happiness and financial security of a person with a serious personal plight legal need (e.g. a personal injury, a divorce, or a criminal charge). Mass media ads almost never provide any useful information that would help someone in this position make an intelligent choice. The airbrushed photos, empty boasts, and gleaming boardrooms in these . . . [more]

Posted in: Legal Ethics

Self-Represented Parties and Sharp Practice by Counsel – Should We Be Thinking Differently?

War is the means by which nation states have sometimes resolved their differences. Litigation is the means by which people in our society sometimes resolve their differences. In both cases, there is value in prescribing the rules of engagement.

As wars between sovereign states have become less common and wars between sovereign states and insurgencies have become more the norm, the traditional rules of war seem to have become less relevant. This is presumably because rules that work to govern combat between traditional armies don’t effectively address asymmetric disputes where conventional militaries face off against “guerrillas”, “terrorists” or “freedom fighters” . . . [more]

Posted in: Justice Issues, Legal Ethics

Professional Cultures and Professional Ethics

When we think about lawyers’ ethics we think about individual lawyers and their choices. Our codes of conduct apply to lawyers as individuals. We consider whether an individual violated his ethical obligations. We sanction individual lawyers. But beyond that limited regulatory focus (which Adam Dodek has persuasively questioned, and which some regulators are moving beyond), our general conversations about lawyers’ ethics tend to focus on the individual. We talk about the good lawyer and the bad lawyer, the ethical lawyer and the unethical lawyer; we think about lawyers’ ethics in light of the ethical quality of the choices . . . [more]

Posted in: Legal Ethics

At Whose Expense? the Intolerable Human Cost of Articling

We know that there is significant discrimination and abuse in articling. We’ve heard the stories and we have the stats too. To cite just a small amount of recent information we have in Ontario:

  • Over 100 articling students responding to a 2017 Law Society survey reported unwelcome comments or conduct related to personal characteristics (age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation).
  • The Law Society’s Discrimination and Harassment Counsel (DHC) recently reported that it has observed a significant trend of complaints about abusive
. . . [more]
Posted in: Legal Ethics

The Two Faces of Lawyer Altruism

After a year off from teaching legal ethics, I need to prepare before my course starts in January. Getting up to speed with the shifting “law of lawyering” is obviously part of the job. Students need to know the rules that they will have to follow when they practice law; that’s a big part of the reason why the course is mandatory. Obeying the law of lawyering usually accords with self-interest. It keeps one out of trouble with the law society, and it’s a good career move.

However professionals are ideally more than just rationally self-interested rule-followers. Lawyers (like other . . . [more]

Posted in: Legal Ethics

Does Civility Matter?

I once wrote an article titled “Does Civility Matter?” I don’t regret the article, but I regret the title. I regret it because it suggests that I oppose civility as an ambition or virtue of the good lawyer. I don’t. My point (developed further in a more aptly titled 2012 paper) was rather that when law societies regulate lawyer civility they either regulate something they shouldn’t (politeness) or they regulate something they should but in the wrong way (treating ethical violations generically as incivility rather than precisely as specific breaches of a lawyer’s duties). I still hold those . . . [more]

Posted in: Legal Ethics

The Bencher From Amazon?

For generations, Canadian lawyers have been regulated themselves. Law Societies, with elected lawyer benchers and, more recently, with appointed lay benchers, have governed the legal profession. We refer to this as professional self-regulation.

It is increasingly recognized that legal needs are not fully satisfied by lawyers. Some legal needs are satisfied by others. Some legal needs are not satisfied at all. It is now understood that access to justice is an important and difficult policy challenge. In Ontario, section 4.2(2) of the Law Society Act now expressly states that the Law Society has “a duty to act so as to . . . [more]

Posted in: Legal Ethics

Let’s Be Clear: The Case for Explicitly Banning Discriminatory Law Schools

Law societies shouldn’t accredit law schools that have discriminatory admissions policies. In my view, this statement has always been morally true. But we now know that this statement is legally true thanks to the Supreme Court of Canada’s decisions in the two recent TWU cases (see, here and here).

The Court’s analysis in both cases purportedly proceeded under a “reasonableness” standard of review and, thus, professed not to speak directly to the ultimate correctness of the law societies’ refusals to accredit a proposed law school that, to use the Court’s words, “effectively bars many LGBTQ people from attending.” Viewed . . . [more]

Posted in: Legal Ethics

Bridges Over the Chasm: Licensing Design and the Abolition of Articling

What should people who want to practice law have to do before they are licensed? This perennial debate has bloomed once again. The Law Society of Ontario (LSO) is seeking feedback on its Options for Lawyer Licensing consultation paper (Slaw summary here). Two of the LSO’s four options would abolish articling. Candidates would instead have to pass exams covering both legal skills and substantive knowledge. There would also be a law practice program, either required for all candidates (LSO’s Option 4) or only for those practicing in smaller firms (Option 3).

Thinking of licensing in terms of footbridges over . . . [more]

Posted in: Legal Ethics

Regulating Lawyer-Client Sex

In Canada we allow lawyers to have sex with their clients. Or, to be precise: we do not prohibit lawyers from having sex with their clients.

Canadian law societies do regulate lawyer-client sex in a limited way. Almost all law societies prohibit sexual harassment.[1] And most law societies also identify lawyer-client sex as potentially creating conflicts of interest. They identify sexual relationships with clients as the sort of thing that may “conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client” and which may “permit exploitation of the client” (FLS Model Code Rule 3.4-1, Commentary . . . [more]

Posted in: Legal Ethics