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Archive for the ‘Legal Ethics’ Columns

The Never-Ending Debate: What Should Be Required in Order to Become a Lawyer?

The qualifications required of new Ontario lawyers has been the subject of virtually continuous debate for generations. Starting in the late 1950s, being called to the bar required (i) a law school degree, (ii) practical training through the bar admissions course and (iii) an articling apprenticeship. The bar admissions course came to an end in the 2000s. A law practice program (the LLP) has recently been added as an alternative to articling. The qualifications debate continues with the focus now being whether articling and/or the LLP should continue and, if so, in what form. The central question today is what, . . . [more]

Posted in: Legal Ethics

Law Schools’ Dirty Little Secret

Left-leaning social justice warriors have captured Canadian law schools. So goes recent commentary in the National Post (see, e.g. recent columns by Barbara Kay, Bruce Pardy and Christie Blatchford). Law profs “espouse and impose a particular set of values or opinions and a way of thinking” (Blatchford, emphasis added).

I am not persuaded. As explained below, this commentary is unsupported by relevant evidence and inconsistent with core features of Canadian legal education. I do, however, accept one of its basic premises: law schools have a public interest mandate. They have duties to their students, to the system of . . . [more]

Posted in: Legal Education, Legal Ethics

Is the Law Society of Ontario Still Donating to Political Parties?

One benefit of being a regular Slaw columnist is the ability to revisit previous columns. Roughly four years ago, I wrote a column titled “Why Is the Law Society Donating to Political Parties?: Some Answers and Questions” where I explored and questioned the fact that the LSO (then LSUC) made donations totalling $21,000 in 2013 to the provincial Liberal, Conservative and NDP parties, as reported in a Law Times article.

At the time, the Law Society explained, in part, that “[c]ontributions are only made through the purchase of tickets to attend events hosted by the parties and/or elected politicians” and . . . [more]

Posted in: Legal Ethics

Lawyers Should Not Abuse Their Perceived Legal Authority in Public Debate

Professor Bruce Pardy is not a constitutional law expert. His scholarship in peer-reviewed journals is largely on environmental law. Yet, over the past several months, the Queen’s Law professor has commented in the lay media on constitutional law issues.

In one instance, on October 3, 2017, the National Post published Pardy’s opposition to the Law Society’s new Statement of Principles requirement, citing selected Charter free speech jurisprudence as his underlying support. A policy that compels lawyers to privately acknowledge equality-related obligations, Pardy argues, is compelled speech and akin to authoritarian rule.

Publicly sharing opinions in the Post is not . . . [more]

Posted in: Legal Ethics

Measuring Legal Service Value, Part 1

If you work at a law firm, how good is that firm? If you’re a client or potential client, how good are the different legal services providers that you might choose to patronize?

It’s too difficult, at present, to answer these questions in an objective and reliable way. This is most obviously true for individual people with legal needs. They generally confront a mysterious landscape populated with apparently indistinguishable law firms, as well as proliferating alternative sources of legal services.

However, even experienced corporate clients, and lawyers themselves, lack solid information about the respective merits of different legal service providers. . . . [more]

Posted in: Legal Ethics, Practice of Law

Against a Lawyer’s Duty to Be “Zealous” or “Resolute”

Canadian lawyers have a legal duty of resolute or zealous advocacy. Law society codes of conduct direct lawyers to represent clients “resolutely and honourably” (FLS Model Code, Rule 5.1-1). The Supreme Court of Canada says that a core aspect of a lawyer’s duty of loyalty is the “duty of commitment to the client’s cause (sometimes referred to as ‘zealous representation’)” (R v Neil 2002 SCC 70 at para. 19).

Not everyone likes those duties. They worry that they implicitly endorse lawyer aggression. They think duties of honour and integrity, and as an officer of the court, ought to govern . . . [more]

Posted in: Legal Ethics

What Can We Learn From the English ABS Experience After Five Years?

After five years of ABS liberalization in England (and Wales), it is worth having a look at what has happened. Surprisingly and significantly, the answer is “not much”.

ABS liberalization in England

A decade ago, Legal Services Act 2007 brought about significant changes to the practice of law in England. These changes included allowing what were called alternative business structures to provide legal services where only lawyers were previously permitted to serve clients. The first alternative business structures were licensed in late 2011.

The essential idea of alternative business structures is that constraining ownership of legal practices constrains competition and . . . [more]

Posted in: Legal Ethics

An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of Colten Boushie

We understand the ethical duties of lawyers and judges in a criminal trial – what they ought to do, what their office requires of them. Sure, we argue about the details (e.g., me on prosecutors), but in general we know what defence lawyers, prosecutors and judges ought to do. Yet as shown by Gerald Stanley’s acquittal by a jury on charges of murder and manslaughter after his admitted killing of Colten Boushie, lawyers and judges are not the only people relevant to the functioning of a criminal trial. Juries also hear evidence and decide outcomes.

So what of jurors? . . . [more]

Posted in: Legal Ethics

The Morality of #Metoo

The forced resignation of Patrick Brown as leader of the Ontario Conservatives raises concerns of fairness and due process – for him and for the women accusing him. Christie Blatchford has castigated the party and other public officials for abandoning the “presumption of innocence”, and has highlighted the wrong of ruining a man’s reputation based on anonymous allegations. Others agree. Conversely, the Prime Minister reportedly said that women who made allegations of misconduct “must be believed” and Ontario Premier Kathleen Wynne has said “I believe victims when they come forward”.

Both those responses strike me as fundamentally deficient. Deficient . . . [more]

Posted in: Legal Ethics

Shady Billing: Closing the Hall of Shame

Only “fair and reasonable” fees and disbursements can be charged by lawyers to their clients. This rule is uncontroversial, and applies across the country. Nevertheless, the following billing practices are used by some Canadian firms, and not clearly forbidden by regulation:[1]

  • a retainer contract lists current hourly rates but also provides that the firm can increase those rates as much as it wants, at any point in the future without the client’s further consent
  • a retainer can also allow a firm to both charge for each hour docketed, and charge the client whatever bonus the firm decides is appropriate
. . . [more]
Posted in: Legal Ethics

The Statement of Principles and Inter-Bubble Communication About Racism

There has been significant controversy in Ontario over the new Law Society requirement that every licensee “adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”.

The nature of the Statement of Principles controversy

Much of the controversy has focused on concern that the requirement compelled expressions of belief and accordingly raised the issue of freedom of speech. This was not an unreasonable concern for at least two reasons. As Alice Woolley pointed out in her op-ed column published in . . . [more]

Posted in: Legal Ethics

Is a Bad Lawyer a Bad Person?

In 1976 Charles Fried famously asked, “Can a good lawyer be a good person?” (“The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale LJ 1060 at 1060).

Law and morality are distinct. As a consequence, lawyers sometimes represent bad people, and sometimes help people do bad things. There is thus a legitimate question about whether being a lawyer is consistent with an ethical life. Nonetheless, Fried answered his question “yes”. Because of the law’s legitimacy and justification, a lawyer who assists people to pursue their goals and interests through the law can be – is . . . [more]

Posted in: Legal Ethics