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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

The issue of lawyer civility—or lack thereof—continues be a hot topic this fall, with the Groia matter reaching its way to a Law Society Appeal Panel hearing on September 9 and 10.

Many arguments have been advanced both in favour of and against creating formal regimes to monitor and sanction lawyer incivility. For example, the disciplinary panel that originally heard Mr. Groia’s case suggested in its reasons that regulating lawyer civility is necessary to protect the proper administration of justice, trial fairness, and public confidence in the justice system. Others, including myself and fellow Slaw columnist Alice Woolley, have questioned . . . [more]

There are many excellent recommendations in the CBA’s Reaching Equal Justice report. 

As a law professor and a member of the Legal Education and Training Team of the CBA’s Legal Futures initiative, I naturally focused on those relating to law schools, including this one:

All graduating law students should have a basic understanding of the issues relating to access to justice and know that fostering access to justice is an integral part of their professional responsibility.

This sounds great but there is a problem. Reaching Equal Justice assumes that access to justice is part of a Canadian lawyer’s professional . . . [more]