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Archive for the ‘Legal Ethics’ Columns

Judicial Analytics: Facing Uncomfortable Truths

For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”

In France, it would seem that such conversations are . . . [more]

Posted in: Legal Ethics

Supercalifragilisticexpialidocious Lawyers

Lawyers work hard and their successes should be celebrated. Clients have a hard time self-evaluating the potential quality of legal services before hiring a lawyer. Both these statements are true; neither is a good reason for Canadian law firms to collectively spend millions of dollars and thousands of hours facilitating for-profit private lawyer rankings. This column argues that large Canadian law firms (and boutiques that serve similar clients) should collectively agree to stop participating in for-profit private lawyer ranking services.

Currently, there are multiple prominent lawyer ranking services that profile lawyers in large law firms/boutiques as well as the firms . . . [more]

Posted in: Legal Ethics

Mediation: A Warning Not to Bully a Client Into Settlement

If a lawyer fails to prepare his client for mediation, and bullies her into a settlement, a court may find the lawyer negligent and award damages to the client amounting to the difference between what she settled for and what she likely would have obtained in court (or arbitration). That is what happened in Raichura v Jones, 2020 ABQB 139, a recent decision from the Alberta Court of Queen’s Bench.[1] In this case, the lawyer was ordered to pay damages of $131,939. In other words, this case is a lawyer’s nightmare. The facts may be uncommon, but . . . [more]

Posted in: Legal Ethics

Enlightenment Now!

Most of us watch politics in the United States with alarm. Falsehoods are routinely offered as if truth no longer matters. Genuine expertise is devalued in favour of unfounded opinion and conspiracy theory. Candidates espousing bizarre conspiracy theories have gained political traction. Calls for hatred and division have become normalized. Shame no longer seems to constrain.

Canadian political culture has not descended to the same depths but there is reason for concern. On social media and elsewhere, trolling, derision and contempt are commonplace. While it would be naïve to think that there were halcyon times of good faith public debate, . . . [more]

Posted in: Legal Ethics

Justice Patrick Smith’s Conduct Should Remain a Cautionary Tale

On May 21, 2020, the Federal Court released a decision (2020 FC 629) strongly in favour of Justice Patrick Smith, a judge of the Ontario Superior Court of Justice, and highly critical of the Canadian Judicial Council. It is unfortunate that the decision is so one-sided. The CJC deserves some of the criticism. However, the position taken by the CJC is not as untenable as the court claims. More importantly, there is legitimate cause for concern about Justice Smith’s conduct.

This litigation arises from events in the spring of 2018 when Justice Smith accepted an appointment as the Interim Dean . . . [more]

Posted in: Legal Ethics

A Good Day for Self-Regulation: The LSO’s Family Law Paralegal Proposal

Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.

The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except . . . [more]

Posted in: Legal Ethics

Mired in Conflict? Me Deciding Whether You Can Compete With Me

Does it make sense that lawyers elected by lawyers should effectively decide the permitted scope of practice of paralegals with whom they do or would compete for work? Does it make sense that lawyers and paralegals elected by their peers should decide what legal services can only be provided by lawyers and paralegals and thereby maintain their monopoly?[1]

On the other hand, does it make sense that elected lawyers and paralegals should decide what education and training is appropriate for licensing and what professional conduct should be required for appropriate advocacy in courts and tribunals and generally? Does it . . . [more]

Posted in: Legal Ethics

A Family Lawyer’s Role Is (Not) to Minimize Conflict

Do family law lawyers have an obligation to minimize conflict? It seems obvious that given the stakes involved in family law matters, especially where there is family violence or children, that a lawyer’s role ought to include minimizing conflict; however, that idea is not as straightforward as it sounds. A family lawyer does have an obligation to advise her client on the impact of actions that inflate conflict; but a lawyer’s role properly understood, does not include an objective of minimizing conflict. This may seem like splitting hairs, but it is an important distinction.

Minimizing Conflict

The BC Family Law . . . [more]

Posted in: Legal Ethics

Admissions Season Reflections

This spring, I read 200 applications from people who want to study law at the University of Windsor. Our law school, like every other in Ontario, receives more than eight applications for each available place in first year. Across the province, there are roughly 4300 applicants for 1600 spots. The figures are comparable across the country; Canada still has among the fewest law school spots per capita in the developed world.

Those of us on admissions committees must rank applicants on the basis of our respective institutions’ admissions criteria. We must recommend that many people who want to . . . [more]

Posted in: Legal Education, Legal Ethics

Reporting Sexual Harassment: A New Professional Duty for Lawyers?

Sexual harassment in the legal profession is a serious problem. Anecdotal accounts abound, and empirical data reveals sexual harassment among lawyers to be a significant issue.[1] While the experiences of those subjected to sexual harassment are diverse, there is no doubt that, collectively, the impact on the wellbeing and careers of victims is profound.[2]

Professional conduct rules explicitly prohibiting sexual harassment have been in place for roughly 30 years. The enforcement of these rules has led, in some instances, to lawyer discipline, but has not, obviously, stopped sexual harassment in the legal profession. So, what more should law . . . [more]

Posted in: Legal Ethics

Getting Useful Information to Consumers of Legal Services

Why do we regulate lawyers and paralegals? Why not just let the “market” do its’ thing? The standard answer is two-fold and relates to the need for legal expertise.

Credence goods and professional regulation

The first part of the answer focuses on consumers. The legal system is complex. Addressing legal problems requires expert assistance. People are not well able to judge for themselves whether their lawyer or paralegal is actually competent. Of course, there is much that can be assessed by clients such as being a good communicator and being responsive. But clients can’t be confident whether the advice received . . . [more]

Posted in: Legal Ethics

More Problems With Conflict of Interest Legislation Revealed in Recent Alberta Controversy

In prior posts, I have highlighted problems with conflict of interest (or ethics) legislation regulating politicians in Canada. In particular I have commented on how legal privilege (for example cabinet confidence in the SNC Lavalin controversy) thwarts investigations. I have also highlighted the loophole in ethics rules (and their interpretation by some commissioners) that exempt political gain as an interest that may conflict with a member or Minister’s duty to serve the public interest.

A recent controversy in Alberta politics has exposed more loopholes in ethics rules. Part of that controversy was that Alberta Health Minister Shandro, who is . . . [more]

Posted in: Justice Issues, Legal Ethics