Canada’s online legal magazine.
LN Banner
CBA Banner

Archive for the ‘Legal Ethics’ Columns

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

Ensuring Competent Representation: Know What You Don’t Know

You’ve got to know when to hold ‘em
Know when to fold ‘em
Know when to walk away
And know when to run
You never count your money
When you’re sittin’ at the table
There’ll be time enough for countin’
When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the . . . [more]

Posted in: Legal Ethics

Familiar Complaints: The State of the Legal Profession in Israel

There are too many lawyers. Too many law schools. The bar exam is too easy. The Law Society should fail more applicants. Such statements are familiar in Canada but they are also heard in Israel where I am spending part of the year as a Visiting Scholar at the David Weiner Centre for Lawyers’ Ethics and Professional Responsibility and as a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem.

When I was much younger, I worked for a year in the Israeli court system as a law clerk so I know something about . . . [more]

Posted in: Legal Ethics

The Real “Articling Crisis”?

The Law Society of Upper Canada is again in the news. This time, the focus is on the recently released Consultation Paper entitled Addressing Challenges Faced by Racialized Licensees. An article in the Toronto Star has called the report “blunt” and characterized it as “containing disquieting findings.” Another piece in the Law Times, titled “Non-white lawyers feel alienated, report finds” details a variety of the report’s findings and highlights LSUC’s invitation for input.

This media attention is no doubt a positive thing. The Consultation Paper confirms what many have been saying for years: “racialization is a constant and persistent . . . [more]

Posted in: Legal Ethics

Trinity Western… Again

I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.

As far as I can tell, each law society that has independently considered . . . [more]

Posted in: Legal Ethics

A Different Take on ABS – Proponents and Opponents Both Miss the Point

The Lawyers Weekly recently included an article by Cristin Schmitz entitled Study sounds note of caution in ABS debate. Ms. Schmitz discusses a thoughtful paper by Nick Robinson who is a research fellow with the Harvard Program on the Legal Profession.

In an interview with Ms. Schmitz, Mr. Robinson said:

“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. I am a bit cautious about non-lawyer ownership in the paper, but I can also see in certain situations

. . . [more]
Posted in: Legal Ethics