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Archive for the ‘Legal Ethics’ Columns

In Praise of the Queen’s Counsel

For many lawyers, December is a month filled with anticipation as most of the provinces announce coveted Queen’s Counsel (QC) appointments prior to Christmas. For federal government lawyers, they waited for an announcement that never came.

In 2013, the Harper government revived the federal QC after a two-decade hiatus. In 2015, the new Trudeau government appears to have quietly abandoned this practice. Or it may simply not have been a priority for a busy new government. Whatever the explanation, if the Trudeau government wants to recognize the value of public service, it should continue the practice of awarding QCs to . . . [more]

Posted in: Legal Ethics

Should Lawyers Be Paid to Snitch on Their Clients? (Spoiler! No.)

Let’s say that you are a good lawyer whose client did something bad. Should you snitch on them to the authorities? What if they did something really bad? What if someone offered to pay you millions of dollars if you ratted them out?

If these questions were asked on a bar exam, the answers would be clear. A good lawyer who abides by the Rules of Professional Conduct cannot disclose any information about the business or affairs of his or her client except in very limited and specified circumstances, such as where there is an imminent risk of death or . . . [more]

Posted in: Legal Ethics

Ethical Resolutions

January – the traditional time for resolutions and resetting intentions. While we may fail to achieve them, we know the resolutions worth making – exercise more, eat better, spend less, be kinder: in some smaller or greater way, be a better person. What our resolutions are not is a commitment not to do something bad. We don’t say, “this year I’m not going to cheat on my spouse, or assault someone, or steal from my employer.” Our resolutions are positive and aspirational, not negative and constrained. So this is my January question: what would it look like to think about . . . [more]

Posted in: Legal Ethics

Candid but Unsure

The principal duties owed to clients are well known: commitment, confidentiality, candour and competence.[i] Much has been written and debated about commitment and confidentiality. Their nature and scope are reasonably well understood. Competence and its legal twin negligence are conceptually simple enough, albeit fact-specific.

Candour is another matter. Candour seems straight-forward. Simply be honest with your clients, tell them what you know and all will be well. But this naïve approach is problematic. As is often the case in legal ethics, difficult issues arise because duties can collide. Candour and confidentiality can be irreconcilable duties and confidentiality is pervasive . . . [more]

Posted in: Legal Ethics

Judge Camp and Judicial Competency: the Duties of Appellate Courts

At what point do concerns over the conduct or competency of a lower court judge rise to the level that an appellate court should report that judge to the relevant judicial council? Appellate courts are naturally hesitant to do so, lest they infringe on judicial independence. However, at some point a judge’s conduct may cross the line and compel an appellate court to report them in the name of protecting the integrity of the administration of justice and maintaining public confidence in the same. The Alberta Court of Appeal’s review of the judgment of Judge Robin Camp in R v. . . . [more]

Posted in: Legal Ethics

Crikey! Warnings About Lawyer Independence From Across the Pond

The issue of lawyer independence has been a hot topic over the last year. It’s been frequently mentioned in the debate about whether to introduce alternative business structures in Ontario. Additionally, the Supreme Court of Canada declined to find that the independence of the bar, broadly defined, was a principle of fundamental justice in a decision earlier this year. These two high profile examples reflect the clear continuing relevance of lawyer independence when new regulatory reforms are proposed or instituted.

What are not always so apparent, however, are challenges to lawyer independence that emerge in the absence of any regulatory . . . [more]

Posted in: Legal Ethics

Principle, Not Politics

The Law Society of Upper Canada ABS Working Group delivered an interim report to Convocation in September. In reading some of the subsequent comments, I was reminded of Nick Robinson’s thoughtful paper When Lawyers Don’t Get All the Profits. As he said in an interview with Cristin Schmitz:

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.

In its interim report, the Working Group reported that it would not further consider non-licensee ownership or control of traditional practices . . . [more]

Posted in: Legal Ethics

Volkswagen, Legal Advice and the Criminal-Communication Exclusion to Confidentiality and Privilege

In my last SLAW column I commented on the Volkswagen scandal and the classic ethics question: where were the lawyers? In this column I want to use that scandal to consider a more specific legal ethics issue: when lawyers are consulted about a criminal course of conduct, under what circumstances is that consultation confidential and privileged? This question relates to the scope of the criminal-communications exclusion to privilege, and the ability of a counter-party in litigation to gain access to solicitor-client communications. But it also goes to the ability of lawyers who are consulted in those circumstances to blow the . . . [more]

Posted in: Legal Ethics

Coaching Competence

“Top singers and athletes have coaches. Should you?”

A few weeks ago, this question entered my Twitter feed through a reference to a 2011 New Yorker article titled “Personal Best”, authored by surgeon Atul Gawande. It caught my attention and sparked a thought: how might lawyers benefit from coaching?

Gawande’s article provides a compelling account of how coaches can help professionals improve performance. Among other things, Gawande discusses how a coach helped him bring down his post-surgery complication rate. He also explores the increasing use of teacher-coaching programs across the United States. Gawande writes that “coaching done well may be . . . [more]

Posted in: Legal Ethics

The Volkswagen Scandal: When We Ask, “Where Were the Lawyers?” Do We Ask the Wrong Question?

Every institutional ethics scandal – Watergate, the 2008 Financial Crisis, Enron, the Savings and Loan Scandal, the Daily Mail hacking scandal – prompts the question: where were the lawyers?

In its asking, “the question” expresses both faith and disappointment – faith that lawyers help ensure lawful conduct; disappointment that in this case (whichever case it is) they appear not to have done so. “The question” is, in short, fundamentally optimistic. While it acknowledges that here the lawyers failed, it rests on the premise – or at least maintains the hope – that, somehow, lawyers can do . . . [more]

Posted in: Legal Ethics

A Judge’s Place Is on the Bench . . . Not in the Political Arena

Judges and politics don’t mix. Political involvement by sitting judges is an accepted taboo. Political involvement by former judges is a relatively recent development. But as the political candidacy of former Chief Judge of the B.C. Provincial Court Carol Baird Ellan is showing, there is a serious danger of political blowback against the bench as an institution when one exchanges her black judicial robes for the Blue, Red or Orange colours of a political party.

The Progressive Conservative Party is running an attack ad targeting the NDP’s so-called “star candidate”. The ad is found at www.youbethejudge.ca and says:

Carol Baird

. . . [more]
Posted in: Legal Ethics

Innovate or Be Innovated?

When the Chief Justice of Canada highlights global liberalization of legal services regulation, recognizes that our old monopolies are fading, says that the legal profession must embrace new ways of doing business and that the question is not whether our rules should be liberalized but how, even those most resistant to change must take heed.

On August 14, 2015, Chief Justice McLachlin addressed the Canadian Bar Association annual plenary in Calgary . In her remarks entitled The Legal Profession in the 21st Century, the Chief Justice suggested that the legal profession must ask itself three questions:

  • First, where does
. . . [more]
Posted in: Legal Ethics