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Archive for the ‘Legal Ethics’ Columns

Crikey! Warnings About Lawyer Independence From Across the Pond

The issue of lawyer independence has been a hot topic over the last year. It’s been frequently mentioned in the debate about whether to introduce alternative business structures in Ontario. Additionally, the Supreme Court of Canada declined to find that the independence of the bar, broadly defined, was a principle of fundamental justice in a decision earlier this year. These two high profile examples reflect the clear continuing relevance of lawyer independence when new regulatory reforms are proposed or instituted.

What are not always so apparent, however, are challenges to lawyer independence that emerge in the absence of any regulatory . . . [more]

Posted in: Legal Ethics

Principle, Not Politics

The Law Society of Upper Canada ABS Working Group delivered an interim report to Convocation in September. In reading some of the subsequent comments, I was reminded of Nick Robinson’s thoughtful paper When Lawyers Don’t Get All the Profits. As he said in an interview with Cristin Schmitz:

I’ve been amazed in this debate how much each side kind of talks past each other, dismisses the concerns of the other side, or the point of the other side.

In its interim report, the Working Group reported that it would not further consider non-licensee ownership or control of traditional practices . . . [more]

Posted in: Legal Ethics

Volkswagen, Legal Advice and the Criminal-Communication Exclusion to Confidentiality and Privilege

In my last SLAW column I commented on the Volkswagen scandal and the classic ethics question: where were the lawyers? In this column I want to use that scandal to consider a more specific legal ethics issue: when lawyers are consulted about a criminal course of conduct, under what circumstances is that consultation confidential and privileged? This question relates to the scope of the criminal-communications exclusion to privilege, and the ability of a counter-party in litigation to gain access to solicitor-client communications. But it also goes to the ability of lawyers who are consulted in those circumstances to blow the . . . [more]

Posted in: Legal Ethics

Coaching Competence

“Top singers and athletes have coaches. Should you?”

A few weeks ago, this question entered my Twitter feed through a reference to a 2011 New Yorker article titled “Personal Best”, authored by surgeon Atul Gawande. It caught my attention and sparked a thought: how might lawyers benefit from coaching?

Gawande’s article provides a compelling account of how coaches can help professionals improve performance. Among other things, Gawande discusses how a coach helped him bring down his post-surgery complication rate. He also explores the increasing use of teacher-coaching programs across the United States. Gawande writes that “coaching done well may be . . . [more]

Posted in: Legal Ethics

The Volkswagen Scandal: When We Ask, “Where Were the Lawyers?” Do We Ask the Wrong Question?

Every institutional ethics scandal – Watergate, the 2008 Financial Crisis, Enron, the Savings and Loan Scandal, the Daily Mail hacking scandal – prompts the question: where were the lawyers?

In its asking, “the question” expresses both faith and disappointment – faith that lawyers help ensure lawful conduct; disappointment that in this case (whichever case it is) they appear not to have done so. “The question” is, in short, fundamentally optimistic. While it acknowledges that here the lawyers failed, it rests on the premise – or at least maintains the hope – that, somehow, lawyers can do . . . [more]

Posted in: Legal Ethics

A Judge’s Place Is on the Bench . . . Not in the Political Arena

Judges and politics don’t mix. Political involvement by sitting judges is an accepted taboo. Political involvement by former judges is a relatively recent development. But as the political candidacy of former Chief Judge of the B.C. Provincial Court Carol Baird Ellan is showing, there is a serious danger of political blowback against the bench as an institution when one exchanges her black judicial robes for the Blue, Red or Orange colours of a political party.

The Progressive Conservative Party is running an attack ad targeting the NDP’s so-called “star candidate”. The ad is found at and says:

Carol Baird

. . . [more]
Posted in: Legal Ethics

Innovate or Be Innovated?

When the Chief Justice of Canada highlights global liberalization of legal services regulation, recognizes that our old monopolies are fading, says that the legal profession must embrace new ways of doing business and that the question is not whether our rules should be liberalized but how, even those most resistant to change must take heed.

On August 14, 2015, Chief Justice McLachlin addressed the Canadian Bar Association annual plenary in Calgary . In her remarks entitled The Legal Profession in the 21st Century, the Chief Justice suggested that the legal profession must ask itself three questions:

  • First, where does
. . . [more]
Posted in: Legal Ethics

Of Lions and Lawyers

Walter Palmer killed Cecil the lion. According to media reports, Cecil was lured from his sanctuary by food and then shot by Dr. Palmer with a crossbow. The shot didn’t kill the lion; Dr. Palmer and his guides tracked the lion for two days and killed him with a gun (New York Times, July 28, 2015). The response to Cecil’s death on social media was overwhelming. Palmer received death threats, his home was vandalized and his dental practice shut down.

The problems with mob justice in an Internet world have been explored elsewhere, including in relation to the . . . [more]

Posted in: Legal Ethics

Equality, Diversity and Inclusion: Some Lessons From South of the Border?

Earlier this month, the new president of the Law Society of England and Wales, Jonathan Smithers, used the occasion of his inaugural speech to emphasize the importance of a diverse and inclusive legal profession, stating:

Equality, diversity and inclusion are absolutely at the forefront of this Society’s work, interwoven in all that we do. Our profession must reflect the country as it is and draw talent from each and every part. Social inclusion and mobility are currently in the spotlight. I am proud of the progress we have made over the last decades but do not in any way shy

. . . [more]
Posted in: Legal Ethics

What to Read Before Starting Law School

This fall an estimated 2800 students will begin their three-year journey for a J.D. degree at one of Canada’s 18 Common Law Schools (there are 23 law schools in total in Canada).[1] If they are anything like I was some 23 years ago, these students are excited but apprehensive. The vast majority of new law students have had no contact with the legal system and have not taken any law-related courses. Their knowledge of law comes from popular culture. For me this was L.A. Law, Inherit the Wind, Perry Mason and To Kill a Mockingbird. For today’s law students, . . . [more]

Posted in: Legal Education, Legal Ethics

The Law Society Tribunal and Self-Regulation

Is the World as We Know it Coming to an End?

Each year, the Law Society of Upper Canada has an awards ceremony at which very worthy lawyers and paralegals are honoured. Hearing about the contributions and professional lives of the award recipients is inspiring and underscores the value of our professions to the society that we serve.

There was a whimsical theme in some of the speeches this year. By way of good-natured self-deprecation, one recipient described receiving the call from the Treasurer telling him that he had been awarded the Law Society Medal. He said that his first . . . [more]

Posted in: Legal Ethics

Prosecutors as Ministers of Justice?

Three recent cases have brought to light bad behaviour by criminal prosecutors.

In R. v. Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (para. 10-11)

According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury . . . [more]

Posted in: Legal Ethics