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Archive for the ‘Legal Ethics’ Columns

The Absent Ethics of Legal Fees : Putting Profit-Seeking in Its Place

A lawyer should be a loyal ally for a person with a legal need. This loyalty is at the core of our profession’s value proposition to society. Thus, legal ethics strives to guarantee devoted service to clients. Conflict of interest rules prohibit all situations creating “substantial risk” that the lawyer’s loyalty to a client “would be materially and adversely affected by the lawyer’s own interest.” Lawyers, as fiduciaries, must be “concerned solely for the beneficiary [client]’s interests, never the fiduciary [lawyer]’s own.”

There is, however, a glaring exception to the duty of selfless loyalty to clients. Lawyers are allowed . . . [more]

Posted in: Legal Ethics

The Costs of Regulation

The Law Society of Ontario bencher election finished at the end of April. The cost of regulation and the finances of the Law Society were the focus of some of the campaigns by bencher candidates. Perhaps not surprisingly in a campaign context, some of the comments were hyperbolic and some were rather imprecise.

This column seeks to address what lawyers in Ontario are required to pay in order to be able to practice law. The point of this review is to help better understand where the money goes to better inform discussions. I will look at this issue from the . . . [more]

Posted in: Legal Ethics

The Cat and Mouse Game of Alberta’s Ethics Investigations

Alberta political Insiders could not have been surprised by Ethics Commissioner Trussler’s decision last Friday finding Jason Kenney’s use of the “Premier” prefix for UCP fundraising correspondence not to be a conflict of interest. That’s because Trussler previously determined in similar cases involving previous Premiers that the use of public office for partisan purposes is beyond the scope of her legislated mandate.

Conflict of interest allegations were levelled by opposition parties against Premier Prentice in 2014, for staging political announcements in ridings with upcoming by-elections, and again in 2015 when Premier Notley attended a political fundraising dinner in Toronto. In . . . [more]

Posted in: Legal Ethics

Modern Courts and the Need for Judicial Technological Competence

It is now relatively uncontroversial that lawyers should be technologically competent. A duty of technological competence has been included in the American Bar Association’s Model Rules of Professional Conduct since 2012 and has subsequently been adopted in 36 states. Here, in Canada, a similar duty is under active consideration by the Federation of Law Societies of Canada for inclusion in their Model Code.

Much less has been said and done in relation to judicial technological competence; it’s time for this to change.

To be sure, the proposition that judges need to understand technology is not an entirely new . . . [more]

Posted in: Legal Ethics

Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion

Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the . . . [more]

Posted in: Legal Ethics

A Tale of Two Attorneys-General: Jody Wilson-Raybould and Caroline Mulroney

Twice in the last six months, Canadian Attorneys-General have been encouraged to resist the first ministers of their respective governments. Today, federal AG Jody Wilson-Raybould is widely commended for resisting repeated requests from the PM’s office to change tack on the prosecution of SNC-Lavalin (See Patricia Hughes’ comprehensive Slaw post on the affair).

In September of 2018, Ontario AG Caroline Mulroney was called upon to vote against, or resign from, Premier Doug Ford’s government after Ford proposed to invoke section 33 of the Charter. The Superior Court of Justice had found Ford’s plan to reduce the size of Toronto . . . [more]

Posted in: Legal Ethics

Against Supreme Lawyering

Retired Supreme Court of Canada judges can and do practice law in Canada. Law societies’ rules allow this, subject to certain restrictions on court appearances. In this column, I argue that these rules should be changed: law societies should not license retired Supreme Court of Canada judges to practice law in any manner or form.

First, a few important points of context.

The focus here is exclusively on retired SCC judges. There are currently active policy discussions about reforming law society rules that apply to retired judges from all levels of court who wish to return to legal practice (see, . . . [more]

Posted in: Legal Ethics

Leaks to Media May Decrease After Vice Media Decision

The two biggest political scandals in the news right now – the Mark Norman trial, and the Trudeau/SNC-Lavalin controversy – were exposed by a reliable source who secretly shared information with a journalist. Increasingly this is only viable way that scandals are brought to the public’s attention in this country.

More traditional methods of uncovering corruption – access to information laws, and whistleblower protections that are supposed to encourage employees to disclose wrongdoing – are increasingly irrelevant. As to the former, we know that much information is categorically off limits, delayed, destroyed, not recorded, or access . . . [more]

Posted in: Justice Issues, Legal Ethics, Legal Information

The Cost of Becoming a Lawyer

The Law Students Society of Ontario (the “LSSO”) recently surveyed Ontario law students to better understand the debt load experienced by them and its effect on them. The LSSO Report provides important insights into the effects of increased law school tuition costs.

The LSSO Report has been well received and rightly so. However, the point of this column is not just to laud the report but to engage with it and its observations. In order to seriously address the observations in the LSSO Report, it is necessary to consider the report and to look at the cost of becoming a . . . [more]

Posted in: Legal Education, Legal Ethics

Are Canadian Law Societies Ready for the Legal Profession’s Me Too Moment? (Spoiler: Probs Not)

Sexual harassment has happened and is still happening in legal workplaces. This reality, while at one time largely unacknowledged or treated dismissively, is now openly discussed and approached seriously as a problem in need of a solution. The rise of the Me Too movement has given the issue additional prominence over the last year or so. A selection of recent articles and blogs on the subject can be found here, here, and here.

One question, however, that has not been given much attention is: how should Canadian law societies be responding? To be sure, it isn’t the . . . [more]

Posted in: Legal Ethics

Collegial Reputation and Peer Rankings: An Invisible Hand?

Suppose you have practiced law for many years in the same community. You are shown a list of other lawyers who do the same sort of work as you, in the same area. You probably have an opinion about most of the names on the list. Favourable or unfavourable impressions will have accumulated from your interactions with them on files, your observations of their work, and other colleagues’ comments to you about them.

Of course, they also have opinions about you. Your collegial reputation is the sum of the opinions about you held by others in your community of practice. . . . [more]

Posted in: Legal Ethics

What Is the Mandate of the Law Society?

The Law Society of Ontario has a duty to maintain and advance the cause of justice and the rule of law[1]. Does that mean that the Law Society is empowered to intervene in private litigation in order to advance the cause of justice? Is the Law Society is entitled to involve itself in judicial review cases where it is alleged that another administrative body has acted outside of its jurisdiction, or for improper purposes, in breach of the rule of law principle?

The Law Society has a duty to act so as to facilitate access to justice for . . . [more]

Posted in: Legal Ethics