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Archive for the ‘Legal Ethics’ Columns

A Good Day for Self-Regulation: The LSO’s Family Law Paralegal Proposal

Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.

The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except . . . [more]

Posted in: Legal Ethics

Mired in Conflict? Me Deciding Whether You Can Compete With Me

Does it make sense that lawyers elected by lawyers should effectively decide the permitted scope of practice of paralegals with whom they do or would compete for work? Does it make sense that lawyers and paralegals elected by their peers should decide what legal services can only be provided by lawyers and paralegals and thereby maintain their monopoly?[1]

On the other hand, does it make sense that elected lawyers and paralegals should decide what education and training is appropriate for licensing and what professional conduct should be required for appropriate advocacy in courts and tribunals and generally? Does it . . . [more]

Posted in: Legal Ethics

A Family Lawyer’s Role Is (Not) to Minimize Conflict

Do family law lawyers have an obligation to minimize conflict? It seems obvious that given the stakes involved in family law matters, especially where there is family violence or children, that a lawyer’s role ought to include minimizing conflict; however, that idea is not as straightforward as it sounds. A family lawyer does have an obligation to advise her client on the impact of actions that inflate conflict; but a lawyer’s role properly understood, does not include an objective of minimizing conflict. This may seem like splitting hairs, but it is an important distinction.

Minimizing Conflict

The BC Family Law . . . [more]

Posted in: Legal Ethics

Admissions Season Reflections

This spring, I read 200 applications from people who want to study law at the University of Windsor. Our law school, like every other in Ontario, receives more than eight applications for each available place in first year. Across the province, there are roughly 4300 applicants for 1600 spots. The figures are comparable across the country; Canada still has among the fewest law school spots per capita in the developed world.

Those of us on admissions committees must rank applicants on the basis of our respective institutions’ admissions criteria. We must recommend that many people who want to . . . [more]

Posted in: Legal Education, Legal Ethics

Reporting Sexual Harassment: A New Professional Duty for Lawyers?

Sexual harassment in the legal profession is a serious problem. Anecdotal accounts abound, and empirical data reveals sexual harassment among lawyers to be a significant issue.[1] While the experiences of those subjected to sexual harassment are diverse, there is no doubt that, collectively, the impact on the wellbeing and careers of victims is profound.[2]

Professional conduct rules explicitly prohibiting sexual harassment have been in place for roughly 30 years. The enforcement of these rules has led, in some instances, to lawyer discipline, but has not, obviously, stopped sexual harassment in the legal profession. So, what more should law . . . [more]

Posted in: Legal Ethics

Getting Useful Information to Consumers of Legal Services

Why do we regulate lawyers and paralegals? Why not just let the “market” do its’ thing? The standard answer is two-fold and relates to the need for legal expertise.

Credence goods and professional regulation

The first part of the answer focuses on consumers. The legal system is complex. Addressing legal problems requires expert assistance. People are not well able to judge for themselves whether their lawyer or paralegal is actually competent. Of course, there is much that can be assessed by clients such as being a good communicator and being responsive. But clients can’t be confident whether the advice received . . . [more]

Posted in: Legal Ethics

More Problems With Conflict of Interest Legislation Revealed in Recent Alberta Controversy

In prior posts, I have highlighted problems with conflict of interest (or ethics) legislation regulating politicians in Canada. In particular I have commented on how legal privilege (for example cabinet confidence in the SNC Lavalin controversy) thwarts investigations. I have also highlighted the loophole in ethics rules (and their interpretation by some commissioners) that exempt political gain as an interest that may conflict with a member or Minister’s duty to serve the public interest.

A recent controversy in Alberta politics has exposed more loopholes in ethics rules. Part of that controversy was that Alberta Health Minister Shandro, who is . . . [more]

Posted in: Justice Issues, Legal Ethics

What Is Non-Adversarial Advocacy?

There is no provision in the Model Code that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversarial advocacy.[1] (See here.) In that study, I talked to collaborative lawyers and family lawyers who have a . . . [more]

Posted in: Dispute Resolution, Legal Ethics

“Trial by Zoom”: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings

It’s not business as usual in Canadian courts. The COVID-19 pandemic has upended court operations, just as it has upended every other aspect of daily life. One response to the need to ensure physical distancing has been to move in-person court hearings to virtual formats. Beyond the utility of virtual hearings as short term emergency measures, there is reason to believe that this moment may well mark the start of a shift toward increased use of virtual hearings in the longer term. In discussing the impact of COVID-19 on courts, the Chief Justice of the Ontario Superior Court has stated . . . [more]

Posted in: Legal Ethics

The British Invasion: Legal Services Regulation Edition

Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.

While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access . . . [more]

Posted in: Legal Ethics

A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

Everyone has an obligation to report when they have reason to believe that a child is in need of protection, including lawyers – except where that information is protected by solicitor-client privilege. If the information is confidential a lawyer is required to report it just like anyone else; but if the information is protected by solicitor-client privilege, a lawyer can only report it pursuant to an exception. The future harm exception provides a lawyer with the discretion to disclose a limited amount of qualified information to try to avert serious physical or psychological harm, or death.

The Duty to Maintain

. . . [more]
Posted in: Legal Ethics

Harassment in the Legal Profession: A Few Bad Apples?

Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.

“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often . . . [more]

Posted in: Legal Ethics