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Archive for the ‘Legal Ethics’ Columns

Orphaned Again? the Place of Government Lawyers Within New Regulatory Paths

In an article published in 2010, my colleague Adam Dodek smartly observes that “government lawyers and the work that they do are largely ignored…[t]hey are barely acknowledged in codes of conduct, underrepresented in many law societies and undertheorized in academic scholarship.” Adam also approvingly cites from Allan Hutchinson who characterized government lawyers as “the orphans of legal ethics” because so “little energy has been directed towards defining and defending the role and duties of government lawyers.”

It is unclear how much has changed since Adam made the above observations in 2010. Undoubtedly, the Edgar Schmidt case has recently brought greater . . . [more]

Posted in: Legal Ethics

Ending Bullying in the Legal Profession

Lindsay Cameron‘s best-selling novel BIGLAW is billed as “The Devil Wears Prada meets One L, BIGLAW provides an insider’s view of the cut-throat world of big New York law firms.”

Most of the partners in the book are bullies. The book is a good read not so much because the characters and the storylines are outrageous but rather because both are credible and familiar. Cameron, a graduate of UBC’s Faculty of Law, was a corporate associate for six years in large law firms in both Canada and the United States. During that time, she no doubt accumulated a . . . [more]

Posted in: Legal Ethics

Boiling Frogs, Privilege and Professional Conduct

Forty years ago, the confidentiality rule now found in the Federation of Law Societies Model Code was first adopted in the CBA Code of Professional Conduct. The confidentiality rule makes passing reference in the commentary to privilege and makes clear that the confidentiality rule must be distinguished from solicitor-client privilege. The Model Code does not expressly require that lawyers uphold solicitor-client and litigation privilege.

I expect that Canadian lawyers would generally accept that proper professional conduct includes upholding solicitor-client and litigation privilege. After forty years, it is appropriate to question whether the Codes and Rules of Professional Conduct ought . . . [more]

Posted in: Legal Ethics

What Should a Code of Conduct Do (Or Not Do)?

Lately I’ve been spending a lot of time with law society codes of conduct. Not because I’m a law nerd (although I am), but because I’m preparing the second edition of my book Understanding Lawyers’ Ethics in Canada. Much of the time I’m impressed with the codes. They provide clear and helpful guidance to lawyers on a number of important questions of practice, such as how to manage a joint retainer, or withdrawal from representation in the context of a criminal trial. A lawyer trying to answer a question about her duties should start by consulting her law society’s . . . [more]

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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]

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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]

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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]

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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