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Archive for the ‘Legal Ethics’ Columns

“Why Is the Law Society Donating to Political Parties?”: Some Answers and Questions

“Why is the ‪@LawsocietyLSUC donating to political parties? Why is my membership fee used to support the Conservatives.” This tweet by Ottawa criminal defence lawyer Michael Spratt caught my eye on an otherwise slow Tuesday in February. It had never crossed my mind that the Law Society might be in business of making political donations. The concept seemed strange, if not a bit troubling.

The tweet linked to an article published in the Law Times just over a week earlier on February 10, 2014. Although mostly detailing Elections Ontario data about donations made by law firms to political parties, the . . . [more]

Posted in: Legal Ethics

One Shared Legal Future, Too Many Solitudes

We often talk about the “Two Solitudes” within the legal profession: the silos between the academy and the profession. However, a recent talk by the Treasurer of the Law Society of Upper Canada Thomas Conway made me realize that this dichotomy is wrong. There are not two solitudes within the legal profession, there are many more. 

As the Director of the Cavanagh LLP Professionalism Speaker Series at the University of Ottawa’s Faculty of Law, I invited the Treasurer to speak about “The Law Society of Upper Canada: Promoting the Public Interest and Facing the Challenges of a Changing Legal World”. . . . [more]

Posted in: Legal Ethics

Being in Favour of Reform, Just Not Change

To a hammer, everything is a nail

There is an old aphorism that “To a hammer, everything is a nail”. The aphorism reflects the centrality of perspective. Where you stand very much affects what you can (or want to) see.

I think that Professor Julie Macfarlane makes this point in the context of discussions about access to justice. Professor Macfarlane has carefully researched and thoughtfully written about the reality that most family law litigants don’t use lawyers. She speaks about this issue with lawyers yet, as she seems to say, the discussions with lawyers about this topic are, at best, . . . [more]

Posted in: Legal Ethics

Approval of Trinity Western University’s Law School? It’s Complicated

Trinity Western University views sexual relations outside of a marriage between one man and one woman as inconsistent with “biblical and TWU ideals”, and requires its students and faculty to agree to abstain from such activities. In short, TWU discriminates against people on the basis of their sexual orientation.

My wish for Canada is that that sort of discrimination becomes so contrary to the social and public mainstream that, regardless of whether it is legally permitted, only the most marginal and outsider groups will engage in it. That to require students to sign a community covenant eschewing same-sex expressions of . . . [more]

Posted in: Legal Ethics

The Most Dangerous Client? Rob Ford and Legal Ethics

In The Lincoln Lawyer, lawyer-hero Mickey Haller learns from his father that “there is no client as scary as an innocent man”. In an interview, author Michael Connelly explained that for the lawyer defending an innocent man there can only be one acceptable outcome: Not guilty. “There can be no middle ground. No deal. No plea bargain.” According to Connelly, this places enormous pressure on the lawyer because if the lawyer fails and the client is convicted and goes to prison, the lawyer “has to live with their own guilt in knowing that an innocent man is in . . . [more]

Posted in: Legal Ethics

Looking for the Gems: Overcoming Bias in Law Firm Recruitment

In early January, London-based global mega-firm Clifford Chance LLP made headlines when The Independent reported that the firm had “quietly introduced a ‘CV blind policy’ for final interviews with all would-be recruits.” According to the report, “staff conducting the interviews are no longer given any information about which university candidates attended, or whether they come from state or independent schools.” The reported aim of the change in practice was to “neutralize” bias towards candidates from elite English universities like Oxford and Cambridge. An anonymous senior employee was quoted in The Independent’s story, saying, “We’re looking for the gems and . . . [more]

Posted in: Legal Ethics

Interesting Things Happening in a Small Country – Self-Regulation and Principled Pragmatism

It is easy to be sceptical, perhaps even cynical, about professional self-regulation whether for lawyers, doctors, accountants or other professions. A clear-eyed reading of history shows that protectionism, usually cloaked as high principle, has played a significant part of the history of professional self-regulation. 

One example was the early resistance to inter-provincial law firms. As an articling student in 1982/83, I had the pleasure of helping to develop arguments under the then new Charter of Rights and Freedoms to attack the Alberta professional conduct rule that prohibited inter-provincial law firms[1]. I particularly recall that the report to the . . . [more]

Posted in: Legal Ethics

What Do Bad Exam Answers and the Lawyers of the PMO (Maybe) Have in Common?

We don’t know whether the lawyers who worked in the PMO during the Duffy debacle – Nigel Wright and Benjamin Perrin – engaged in unlawful or unethical conduct. What we do know, though, is that two men with stellar public reputations, one (Perrin) described as a “hero” by Hillary Clinton (here) and the other (Wright) as a man “of good faith, of competence, with high ethical standards” by Jason Kenney (here), became embroiled in a public relations debacle – investigated by the RCMP, disavowed by the Prime Minister and publicly castigated for their potential involvement in . . . [more]

Posted in: Legal Ethics

The Ethics of Articling

It has long been an open secret that our articling system is deeply flawed. But is it unethical?

Articling today is a system that would be equally at home in Downton Abbey and in Booker Prize Winner Hillary Mantel’s Wolf Hall.

While I don’t think articling is inherently unethical, I do believe that it is inherently unequal and therefore creates an environment where unethical behavior is possible. Articling takes a vulnerable and powerless law student who is often carrying a significant financial debt and requires her to be at the beck and call of an experienced lawyer with largely . . . [more]

Posted in: Legal Ethics

Magic Bullet or Band-Aid?: LSUC’s “Enhanced” Tribunals Model

It’s been a high profile fall for the Law Society of Upper Canada’s disciplinary system.

With the appeal decision in the notorious Groia case now on reserve, headlines on a different matter have moved to centre stage: a Law Society hearing panel has “exonerated” and “absolved” two Torys lawyers—Beth DeMerchant and Darren Sukonick—of conflict of interest allegations in relation to work done for the Hollinger Group of Companies. While the Law Society has expressed “disappointment” with the result, the cleared lawyers, for their part, are now seeking up to $4 million in costs and disbursements that they say were incurred . . . [more]

Posted in: Legal Ethics

Utopia, Dystopia and Alternative Business Structures

I’ve spent a lot of time over recent months thinking about alternative business structures and how to think about regulatory liberalization.

Except in very limited circumstances[1], only lawyers[2] can have an ownership interest in a legal practice whether organized as a partnership, a limited partnership or a professional corporation. As a practical matter, only legal and strictly ancillary services can be offered to clients by a legal practice.

Individuals and small businesses are overwhelmingly served by lawyers in sole practice or in small firms. Lawyers sell their time to clients. Time is measured in billable hours. The . . . [more]

Posted in: Legal Ethics

Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

The phenomenon of organized pseudo-legal commercial arguments (OPCA) being used to advance claims not recognized by law has received a great deal of attention in the past year. From last year’s judgment of Associate Chief Justice Rooke in Meads v. Meads, 2012 ABQB 571, to the recent occupation of a Calgary apartment by a Freeman-of-the-land who claimed it as an “embassy”, OPCA litigants have disrupted the functioning of legal system while attracting public attention and interest. In this column I argue that the defining indicia of OPCA are also present in the activities of some lawyers; specifically, in lawyers . . . [more]

Posted in: Legal Ethics