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Archive for the ‘Legal Ethics’ Columns

Keeping Client Confidences and Acting With Commitment

“Lawyers must keep their clients’ confidences and act with commitment to serving and protecting their clients’ legitimate interests. Both of these duties are essential to the due administration of justice.”

Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 at para. 1

This recent decision of the Supreme Court of Canada resolves nearly fifteen years of litigation regarding the lawyer’s role in protecting against anti-money laundering and anti-terrorist financing. This decision is significant to those interested in legal ethics on several points.

Solicitor-client privilege

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the . . . [more]

Posted in: Legal Ethics

Separating the Offices of the Attorney General and Minister of Justice

The time has come to begin seriously considering whether to separate the long-fused offices of Attorney General and Minister of Justice. The Attorney General is responsible for providing legal advice to the executive branch of government and for representing the government in all legal proceedings. In certain matters, the Attorney General is supposed to act completely independently in the public interest without reference to partisan politics. The Attorney General is known as the “defender of the Rule of Law” and indeed, under federal and provincial legislation, the AG is charged with seeing “that the administration of public affairs is in . . . [more]

Posted in: Legal Ethics

Technological Competence 101: Back to Basics?

Much electronic ink has been spilled in the pages of Slaw over the need for lawyers to up their game when it comes to using technology. In a previous column, I argued that “while technological competence might once have been properly seen as a helpful but optional skill set,….[it] is now essential to delivering effective and ethical legal services”, but then hedged, “[e]xactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves.” Both of these observations seem unavoidably true. The problem is, however, they only . . . [more]

Posted in: Legal Ethics

Too Much Information!

Discussions of legal ethics and protection of information often don’t distinguish between confidential information and privileged information. The seminal case of Macdonald Estate v. Martin[i] provides a good example. As Justice Sopinka put it:

Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?

Of course, not all confidential information received by a lawyer in the context of a solicitor and client relationship is . . . [more]

Posted in: Legal Ethics

Ensuring Competent Representation: Know What You Don’t Know

You’ve got to know when to hold ‘em
Know when to fold ‘em
Know when to walk away
And know when to run
You never count your money
When you’re sittin’ at the table
There’ll be time enough for countin’
When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the . . . [more]

Posted in: Legal Ethics

Familiar Complaints: The State of the Legal Profession in Israel

There are too many lawyers. Too many law schools. The bar exam is too easy. The Law Society should fail more applicants. Such statements are familiar in Canada but they are also heard in Israel where I am spending part of the year as a Visiting Scholar at the David Weiner Centre for Lawyers’ Ethics and Professional Responsibility and as a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem.

When I was much younger, I worked for a year in the Israeli court system as a law clerk so I know something about . . . [more]

Posted in: Legal Ethics

The Real “Articling Crisis”?

The Law Society of Upper Canada is again in the news. This time, the focus is on the recently released Consultation Paper entitled Addressing Challenges Faced by Racialized Licensees. An article in the Toronto Star has called the report “blunt” and characterized it as “containing disquieting findings.” Another piece in the Law Times, titled “Non-white lawyers feel alienated, report finds” details a variety of the report’s findings and highlights LSUC’s invitation for input.

This media attention is no doubt a positive thing. The Consultation Paper confirms what many have been saying for years: “racialization is a constant and persistent . . . [more]

Posted in: Legal Ethics

Trinity Western… Again

I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.

As far as I can tell, each law society that has independently considered . . . [more]

Posted in: Legal Ethics

A Different Take on ABS – Proponents and Opponents Both Miss the Point

The Lawyers Weekly recently included an article by Cristin Schmitz entitled Study sounds note of caution in ABS debate. Ms. Schmitz discusses a thoughtful paper by Nick Robinson who is a research fellow with the Harvard Program on the Legal Profession.

In an interview with Ms. Schmitz, Mr. Robinson said:

“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. I am a bit cautious about non-lawyer ownership in the paper, but I can also see in certain situations

. . . [more]
Posted in: Legal Ethics

Tackling Technology

The intersection of legal ethics and technological competency has been a recurring theme in Slaw and other forums for a number of years (see, for example, here, here, and here).

Exactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves (for discussion of what minimum tech standards might look like, see Mitch Kowalski’s and Omar Ha-Redeye’s previous Slaw posts here and here). There is a growing consensus, however, that all lawyers require some level of technological competence in order to meet their professional . . . [more]

Posted in: Legal Ethics

Tweeter or Twitter? Teaching a Federation Approved Legal Ethics Course

This summer I again provided the Federation of Law Societies with the syllabus for my legal ethics course. The Federation requested the syllabus for, presumably, the purpose of verifying that the University of Calgary’s course complies with the Ethics and Professionalism Competency as set out in Table B of the Federation’s Implementation Report for the Approved Law Degree. As it did the past two summers fulfilling the Federation’s request left me feeling both uneasy and uncertain.

Uncertain because I am not sure what the Federation wants to do with the syllabus. Are they simply ascertaining that it is a stand-alone . . . [more]

Posted in: Legal Ethics

Independence and Self-Regulation: I’m OK but I’m Not So Sure About You!

It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.

This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].

In his book The Honest Truth about Dishonesty, Professor Ariely . . . [more]

Posted in: Legal Ethics