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Archive for the ‘Legal Ethics’ Columns

Don’t Dabble in Family Law: A Lesson in Negligence

Family law has always had a reputation for being soft law, the area that lady lawyers practice, and a pink ghetto. Family law is not easy. There are upwards of 70 pieces of family law related legislation across Canada, to say nothing of the rules of court and process related legislation and skills, financial complexities, and family violence concerns. When no-fault divorce was introduced in 1968[1], lawyers did not specialize in family law. According to Constance Backhouse “most male lawyers eschewed divorce as odious, describing it as more ‘social work’ than ‘real law,’ and expressing reluctance to . . . [more]

Posted in: Legal Ethics

Keeping Secrets: A Lawyer’s Obligation Not to Disclose Confidential Information to Spouses and Significant Others

The topic of lawyer confidentiality often yields lively discussions when teaching legal ethics to law students. Some of this engagement flows from high-profile, attention-grabbing case studies like wrongful murder convictions, buried bodies, and concealed videotapes depicting horrific crimes. Even the more routine aspects of lawyer confidentiality, however, spark good conversation. For example, most students are curious about how common behaviours, like working outside the office, sending emails or using social media, may give rise to inadvertent confidentiality breaches.

Another topic that often interests students is whether lawyers can talk about client matters with spouses or significant others. . . . [more]

Posted in: Legal Ethics

Justice in Tribunals: At the Government’s Whim

Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.

JM brings their dispute to that body. JM wants to be heard, by someone who is competent and . . . [more]

Posted in: Legal Ethics

Lawyering in a Family Justice System That Masks Violence

The family justice system masks family violence. There does not seem to be a dominant consideration of safety, including where there is family violence, beyond the best interests of a child analysis giving primary consideration to the child’s safety (see: Divorce Act, RSC 1985, c 3 2nd Supp, s 16(2)). Research shows that lawyers will advise their clients not to raise family violence as an issue, for fear of retribution and because the justice system does not recognize it properly. When women do make claims of family violence, abusers will make counterclaims of alienation (as an excuse for why the . . . [more]

Posted in: Legal Ethics

Workplace Misconduct by Canadian Judges

Last month, the Washington Post ran a story about the abrupt removal from a form sent “to thousands of judiciary staffers who work for federal judges” of a question regarding workplace misconduct. An official quoted in the story characterized the initial inclusion of the question as “an unfortunate administrative error.” Before the question was removed, however, “34 of about 40 employees — nearly everyone who responded — indicated that they had observed some form of inappropriate behavior.” While the small sample size, and reported concerns about the broad wording of the question, make it inappropriate to draw definitive conclusions from . . . [more]

Posted in: Legal Ethics

Justice in Your Neighbourhood?

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke. To get to a family court or small . . . [more]

Posted in: Legal Ethics

Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases

There have been some recent legal developments that compel us to consider the role and responsibilities of judges in cases involving family violence. First, amendments to the Divorce ActRSC 1985, c 3 (2nd Supp), came into effect in March 2021 and the Act now stipulates that family violence is a factor relevant to the best interests of the child. Family violence is finally recognized federally as germane to judicial decisions on parenting, though it is not explicitly recognized as relevant to whether negotiated settlements are an appropriate expectation, which has important implications for the judge’s role in . . . [more]

Posted in: Legal Ethics

Challenging “Compelled Speech” Objections: Respectful Forms of Address in Canadian Courts

Pronouns are currently a hot topic in the legal profession, following recent measures by Canadian courts to prevent the misgendering of courtroom participants. Directives in British Columbia now require lawyers and parties appearing before courts to proactively identify their titles and pronouns (see the directives of the Supreme Court of British Columbia, the Court of Appeal, and the Provincial Court). Other Canadian courts have followed suit. For example, Manitoba, Nova Scotia and Ontario appellate courts encourage counsel and parties to share information about their titles and pronouns when introducing themselves in court.

Some object to these . . . [more]

Posted in: Legal Ethics

If It Wasn’t Required Before, It Is Now: All Family Lawyers Must Screen for Family Violence

Knowing which dispute resolution process to recommend to a client requires a lawyer to know whether there is family violence or a significant power imbalance. The only way to competently provide that legal advice is to have the relevant information by screening for family violence. The recent amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp) and the Supreme Court of Canada decision, Colucci v Colucci, 2021 SCC 24 suggest that lawyers are required to screen for family violence to be able to competently comply with their statutory obligations. This new legal context also indicates . . . [more]

Posted in: Legal Ethics

Building Up the Rule of Law in Ontario- Ministerial Zoning Orders and the Ford Government

“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.

The issues are seldom black and white. Land-owners tout the economic and social benefits of building more of the homes and workplaces that the market demands. Local residents respond with their own compelling arguments, often involving the preservation of neighbourhood character, and avoiding undue strain on infrastructure and local services. In some cases, a proposal . . . [more]

Posted in: Legal Ethics

The Tax Court’s Muslim Screening Policy That Canadians Almost Didn’t Hear About

I never thought I’d be writing a Slaw column about why a Canadian court shouldn’t try to identify lawyers and litigants who could be “thought of as being” Muslim with the goal of trying to prevent those identified from appearing before a particular judge. Yet here we are.

Background

Recently it was reported that the Tax Court adopted a two-part screening initiative in relation to one of its judges, Justice David Spiro:

  1. All files assigned to Justice Spiro were to be reviewed to try to ensure that he would not adjudicate a matter that had any parties, agents or lawyers
. . . [more]
Posted in: Legal Ethics

Bullying the Green

When I was a junior family lawyer, I was representing a client at a mediation. Opposing counsel was a senior male lawyer who brought his junior, who had actually been a former classmate of mine. She was the lawyer I had been communicating with throughout the file, but at the mediation, he was the one who took point. The mediator was also male. We sat in the boardroom, at a long rectangular table. Typically, in a private dispute resolution process, neutral professionals will sit at the ends of the table – i.e.: a jointly retained mediator, family professional, or financial . . . [more]

Posted in: Legal Ethics