Canada’s online legal magazine.

Archive for the ‘Legal Ethics’ Columns

Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy Era”?

What role should empathy have in a system of laws? What does an empathetic legal system look like?

In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more

. . . [more]
Posted in: Legal Ethics

Stepping Up for Diversity: Law Societies Must Begin to Address the Challenges Faced by Racialized Lawyers and Paralegals

Law Societies have a lot on their plates these days: ABS, access to justice, advertising, articling . . . and that’s only the first letter of the alphabet! It is critical that the work of the Law Society of Upper Canada’s Working Group on the Challenges Faced by Racialized Licensees not get lost in all this regulatory alphabet soup. The report is important. It is groundbreaking. It is also controversial. And it is necessary. This report will be debated by Ontario’s benchers on December 2nd. The Law Society of Upper Canada has a real opportunity to exercise strong . . . [more]

Posted in: Legal Ethics

Access to Justice and Market Failure

Lemonish Lawyers? [1]

The problem of access to justice is likely the result of a number of causes. Unnecessary complexity in substantive and procedural law is likely part of the problem. Our adversarial court-based administration of justice is problematic both where powerful actors have disputes with ordinary people and where family disputes require resolution. Ease of access to information through the internet may be both part of the solution and part of the problem.

Market regulation and access to justice

Our approach to legal services regulation plays a role as well. Limiting who can provide legal services restricts how . . . [more]

Posted in: Legal Ethics

The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike . . . [more]

Posted in: Legal Ethics

How Would Ruth Bader Ginsburg’s Comments About Donald Trump Play Out in Canada?

Donald Trump and his polarizing ideas have attracted widespread criticism. However, I suspect that few expected to find a harsh, vocal critic in a United States Supreme Court justice. Judges, after all, are held to the highest standards of impartiality, and political statements can easily raise the question of judicial bias. Against this backdrop, Justice Ruth Bader Ginsburg’s comments about Trump’s presidential campaign present an interesting case study. What happens when a judge is openly opposed to a presidential candidate but has no relevant case on the docket? Could such a comment lead to a finding of bias in Canada? . . . [more]

Posted in: Legal Ethics

A Risky Appetite for Apps: Can Best Practices Help?

Apps are everywhere. A 2014 study found that there are roughly 18 million apps users in Canada and that Canada’s apps enterprises generate $1.7 billion annually. These numbers have presumably only increased in the last two years.

The market for legal apps, in particular, is significant and growing. Research that I’ve done along with colleagues at the University of Ottawa estimates that there are now several dozen apps available in Canada that purport to help with law-related issues. This number is continually growing. In the United States, the numbers are exponentially larger: hundreds of legal apps are available.

The developers . . . [more]

Posted in: Legal Ethics

Reforming the Judicial Discipline Process: Putting the Public in the Public Interest

Over the summer, Justice Canada engaged in a low-key consultation on “Judicial Discipline Process Reform”, releasing a bland discussion paper appropriately-titled “Possibilities for Further Reform of the Federal Judicial Discipline Process”. The title is at once both misleading and accurate. It is in part misleading because there have been no significant changes to the federal judicial discipline process as set out in the Judges Act since that statute was enacted in 1971. It is accurate because the Justice Canada consultation comes on the heels of reforms enacted by the Canadian Judicial Council (CJC) in 2015 after . . . [more]

Posted in: Legal Ethics

The Devil’s Advocate

Gavin MacKenzie, Amy Salyzyn and I participated in August in the Ethics Debate at the Canadian Bar Association Legal Conference. Amy moderated the debate. Gavin and I were the debaters. The topic was Should lawyers have a monopoly on the provision of legal services? I argued for the proposition. Gavin argued against.

The general topic was broken up into three separate propositions, each of which was separately debated. My role was to support the first two propositions and to argue against the third.

  • There is no good reason to allow anyone other than lawyers to provide legal services.
  • Professional
. . . [more]
Posted in: Legal Ethics

Indecent Proposal?: Whistleblowing and Putting a Price on Breaching the Rules of Professional Conduct

Earlier this year, I wrote a column expressing concerns about a proposed Ontario Securities Commission (“OSC”) policy designed to encourage certain individuals, including in-house lawyers, to report serious securities or derivatives-related misconduct to the OSC in exchange for financial rewards of up to $5 million. Similar concerns were relayed directly to the OSC in January 2016 in a letter I co-signed with other legal ethics scholars and practitioners and in a letter from Janet Minor, the then-Treasurer of the Law Society of Upper Canada (“LSUC”).

One major concern raised was that the proposed policy would allow, and indeed, encourage in-house . . . [more]

Posted in: Legal Ethics

Taking Self-Regulation for Granted?

“It is not a right. Self-regulation is very much a privilege.” So declared Premier Christy Clark at the end of June when she announced that the BC government would take over regulation of the real estate industry in that province.

As those in BC know, the BC housing market has been on fire over the past year. Potential home buyers face a crisis of affordability. Questionable practices by some real estate agents and a failure to respond by the Real Estate Council of British Columbia (RECBC) fuelled a crisis of confidence in the regulator. And the government stepped in.

We . . . [more]

Posted in: Legal Ethics

Unmet Legal Needs – the Challenge to Legal Practice and to Self-Regulation

Regulation of legal services differs in important ways across the common law world. In Canada, self-regulation is generally[1] the approach. Canadian law societies are authorized by provincial legislatures to decide who can practice law and provide legal services[2]. The substantial majority of the governors of the law societies are lawyers elected by lawyers. In Ontario, paralegal benchers are elected by regulated paralegals.

In England and Wales, the Solicitors Regulation Authority and the Bar Standards Board are the regulators. The majority of the governors of these regulators are not solicitors or barristers.

In the United States, the state . . . [more]

Posted in: Legal Ethics

Access to Justice in Criminal Law

The Charter of Rights and Freedoms guarantees everyone the right to retain and instruct counsel on arrest or detention. What do we mean by that? Specifically, do we mean it? Do we mean it for people other than the relatively affluent few?

Canadian governments claim that we do. The vision of Legal Aid Alberta states that it aims for “An Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Legal Aid Ontario’s website says that it “provides legal assistance for low-income people”.

Justice Ian Nordheimer isn’t buying it. In a stinging judgment issued . . . [more]

Posted in: Legal Ethics