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Archive for the ‘Legal Ethics’ Columns

If It Wasn’t Required Before, It Is Now: All Family Lawyers Must Screen for Family Violence

Knowing which dispute resolution process to recommend to a client requires a lawyer to know whether there is family violence or a significant power imbalance. The only way to competently provide that legal advice is to have the relevant information by screening for family violence. The recent amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp) and the Supreme Court of Canada decision, Colucci v Colucci, 2021 SCC 24 suggest that lawyers are required to screen for family violence to be able to competently comply with their statutory obligations. This new legal context also indicates . . . [more]

Posted in: Legal Ethics

Building Up the Rule of Law in Ontario- Ministerial Zoning Orders and the Ford Government

“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.

The issues are seldom black and white. Land-owners tout the economic and social benefits of building more of the homes and workplaces that the market demands. Local residents respond with their own compelling arguments, often involving the preservation of neighbourhood character, and avoiding undue strain on infrastructure and local services. In some cases, a proposal . . . [more]

Posted in: Legal Ethics

The Tax Court’s Muslim Screening Policy That Canadians Almost Didn’t Hear About

I never thought I’d be writing a Slaw column about why a Canadian court shouldn’t try to identify lawyers and litigants who could be “thought of as being” Muslim with the goal of trying to prevent those identified from appearing before a particular judge. Yet here we are.

Background

Recently it was reported that the Tax Court adopted a two-part screening initiative in relation to one of its judges, Justice David Spiro:

  1. All files assigned to Justice Spiro were to be reviewed to try to ensure that he would not adjudicate a matter that had any parties, agents or lawyers
. . . [more]
Posted in: Legal Ethics

Bullying the Green

When I was a junior family lawyer, I was representing a client at a mediation. Opposing counsel was a senior male lawyer who brought his junior, who had actually been a former classmate of mine. She was the lawyer I had been communicating with throughout the file, but at the mediation, he was the one who took point. The mediator was also male. We sat in the boardroom, at a long rectangular table. Typically, in a private dispute resolution process, neutral professionals will sit at the ends of the table – i.e.: a jointly retained mediator, family professional, or financial . . . [more]

Posted in: Legal Ethics

What’s Your Procedural Pet Peeve?

Our justice system isn’t all bad, and in some ways it’s getting better. Some things in the system might have to be difficult and complicated, because life is complicated and so is the law. But there are also plenty of things that seem unnecessarily difficult and complicated. I’m talking about things that could be fixed without a lot of controversy or money, just by thinking carefully about how they affect the system’s users.

One that has always irritated me is Rule 4 (“Court Documents”) in Ontario’s Rules of Civil Procedure. It lays out all of the technical requirements for . . . [more]

Posted in: Legal Ethics

The Updated Ethical Principles for Judges: Reaction From the Canadian Association for Legal Ethics / Association Canadienne Pour L’ethique Juridique (CALE/ACEJ)

After several years in development, the Canadian Judicial Council (CJC) has published its updated Ethical Principles for Judges (EPJ). The updated EPJ can be found here.

The Canadian Association for Legal Ethics/Association Canadienne pour L’ethique Juridique (CALE/ACEJ), of which we are President and Vice-President, has followed the revision of the EPJ with considerable interest and has offered comments and suggestions to the CJC along the way (see here, here, here, and here for CALE/ACEJ’s submissions to the CJC). Now that the updated EPJ have been released, it is time to take stock. Below we . . . [more]

Posted in: Legal Ethics

A Very Special Clarification From Ontario’s Law Society Tribunal: Lawyers Can Advertise That They “Specialize” Without Being a “Specialist”

Rule 4.3-1 of Ontario’s Rules of Professional Conduct states “A lawyer shall not advertise that the lawyer is a specialist in a specific field unless the lawyer has been so certified by the Law Society.” Similar rules are in place in other jurisdictions, although the precise language varies.[1]

The reason for the rule is straightforward. The LSO has a Certified Specialist program, intended to assist the public in determining which lawyers “have met established standards of experience and knowledge requirements in one or more designated areas of law and have maintained exemplary standards of professional practice.”[2] The . . . [more]

Posted in: Legal Ethics

Legislating a Family Law Culture Shift

On March 1, 2021, the long-awaited amendments to the Divorce Act, RSC 1985 c3 (2nd Supp) came into effect, changing the word “custody” to the more accurate “decision-making”, expanding on the best interests of the child test, creating presumptions for relocation, and for the first time, recognizing family violence. In addition to these crucial substantive changes, there has been a bubbling excitement among the family law bar about the amendments’ emphasis on resolving family law matters through non-adversarial processes. (E.g.: here and here.) Except where there is family violence, and only where “appropriate”, . . . [more]

Posted in: Legal Ethics

A Taxonomy of Judicial Technological Competence

Earlier this month, the Canadian Judicial Council published updated ethics guidance for federally appointed judges. The new Ethical Principles for Judges substantially revises a 1998 document of the same name. Among the revisions is a caution that judges must be technologically competent. The section addressing judicial diligence and competence includes the following statement:

3.C.5 Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties.

This provision on technological competence is a welcome addition to the Principles. Two years ago, I argued in a Slaw column that there should be a formally . . . [more]

Posted in: Legal Ethics

Standards, Rules, and Law’s Quest for Certainty

Law should be drafted in a way that prevents litigation. Statutes, regulations, and precedents should ideally let people predict the decisions that legal authorities would make, if presented with certain facts. If the “shadow of the law” is sharp and clear, then people can avoid and resolve disputes instead of spending time and money litigating over them.

Often, however, it is difficult to create law that both keeps people out of court, and ensures that the resolutions they reach out of court are fair and just.

Amending Pleadings

Consider, for example, the law about amending pleadings. In the . . . [more]

Posted in: Legal Ethics

Regulatory Innovation With a Legal Tech Sandbox

On April 22, 2021, the Law Society of Ontario approved a “Regulatory Sandbox for Innovative Technological Legal Services”, a five-year pilot project through which non-licensee providers will be given the LSO’s blessing to provide “innovative technological legal services” directly to consumers, under the LSO’s supervision. The sandbox was recommended by the LSO’s Technology Task Force in its report released on April 13, 2021. The sandbox is currently slated to launch in October 2021.

The proposed regulatory sandbox emerges after over three years of study by the Technology Task Force, which the LSO established in February 2018. Although it has taken . . . [more]

Posted in: Legal Ethics

You Jump, I Jump: The Perils of Over-Identifying With a Client

Over-identifying with a client can impair objective representation. The Law Society of British Columbia’s “Common-sense Guidelines for Family Law Lawyers” includes nine “Best Practice Guidelines for Lawyers Practicing Family Law”. The second one is that “lawyers should strive to remain objective at all times” and should not “over-identify with clients or be unduly influenced by the emotions of the moment.” In the midst of doing some research recently, I did a search on CanLII of professional misconduct decisions involving family lawyers and I came across an interesting relationship. Of the first thirteen decisions that I looked at, five . . . [more]

Posted in: Legal Ethics