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Archive for the ‘Legal Ethics’ Columns

Prosecutors as Ministers of Justice?

Three recent cases have brought to light bad behaviour by criminal prosecutors.

In R. v. Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (para. 10-11)

According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury . . . [more]

Posted in: Legal Ethics

Law Society Complaints: What We Don’t Know and Why This Is a Problem

In many ways, Canadian law societies are now more transparent institutions than ever before. The Law Society of Upper Canada, for example, has adopted innovations like live webcasts of Convocation meetings, online Annual Reports and a frequently used Twitter account which allow for easier access and greater insight into what goes on at Osgoode Hall and why. And, of course, for those interested in what happens to lawyers “gone bad”, there is free public access to discipline-related decisions on CanLII.

Disciplinary decisions seem to be, indeed, one of the things that lawyers and the public are most interested in. . . . [more]

Posted in: Legal Ethics

Reading: Learning, Lounging and Escaping

I did it. I read a hundred books (#100Books) on my sabbatical. The whole list can be found here. Why did I do it? I set off to read 100 books because I felt I could and I should.

As lawyers, we spend so much of our time reading but so little time reading books. I can remember years when I’m not sure if I read a single book outside of work. Even as a law professor, I would only read two or three books of fiction a year. As a law student, I took a course called “Law . . . [more]

Posted in: Legal Ethics, Miscellaneous

Partnership Has Its Limitations

Perhaps because most law firms are partnerships, we don’t pay much attention to the practical implications of the partnership structure. This is understandable as there isn’t much of an alternative in our existing system at least so far as private practice is concerned.

A law firm partnership is very different than most ordinary businesses. In most businesses, the owners of the business are not involved in the business whether as workers or as managers. In contrast, law firms are owned and managed by people who provide services to customers (often with the assistance of others). In a law firm, the . . . [more]

Posted in: Legal Ethics

Bencher Elections – the Challenge to Self-Regulations Legitimacy

Prior to the election of Law Society of Upper Canada benchers on April 30, 2015, the Ontario Trial Lawyers’ Association posted on its website a list of benchers who opposed the introduction of Alternative Business Structures. The website stated: “OTLA urges all association members and other eligible licensed lawyer to vote for the following candidates opposed to ABS” (OTLA Bencher Election Voting Guide). At the time some commentators, including me, were quite critical of the OTLA for this approach (“ABS issue dominating bencher vote”)

In this column I want to expand on those criticisms. Not because . . . [more]

Posted in: Legal Ethics

In Praise of Judicial Empathy, Humility and Simplicity

It takes a big person to admit they have made a mistake; it takes an even bigger judge. Justice Shaun Nakatsuru of the Ontario Court of Justice is such a judge.

In a remarkable judgment that has attracted significant media attention from the likes of the Toronto Star, the CBC and CTV, Judge Nakatsuru issued a personal and collective judicial mea culpa. While Justice Nakatsuru did not actually make a mistake per se, he admitted that as a judge he had “sinned” in terms of writing less than user-friendly judgments over the course of his ten years on . . . [more]

Posted in: Legal Ethics

Bully Lawyers & Shoplifting Civil Recovery Letters: Who’s Going to Stop Them?

For roughly 30 years, some Canadian lawyers have been engaging in a practice that other Canadian lawyers have vociferously criticized as “extortion with letterhead,” “bullying and intimidation”, a “predatory practice” and “an example of legal strong-arming.” Members of the public have also chimed in, characterizing the practice as “morally wrong” and “like being stabbed in the back”.

The practice at issue is the sending of shoplifting demand letters. In short, this involves lawyers acting for retailers sending letters to alleged shoplifters and/or their parents demanding the payment of money.

To take one example reported in the media, in 2004, . . . [more]

Posted in: Legal Ethics

What Makes a Law School Great?

What makes a law school great? What should a law school curriculum seek to accomplish in light of the school’s obligations to its students, its university, the pursuit of knowledge, the profession, and society as a whole? What should a law school strive to be?

Every law school has to answer these questions one way or another, and events of the last few years – the crises of American legal education and Canadian articling, and global and technological shifts in the legal services market – have given them greater urgency.

In this column I want to share my own law . . . [more]

Posted in: Legal Education, Legal Ethics

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