Canada’s online legal magazine.

Archive for the ‘Legal Ethics’ Columns

The Unfortunate Incident of the TWU Intervention Decisions

On July 27, 2017 Justice Wagner denied intervenor status to 17 of 26 applicants in the Trinity Western University cases before the Supreme Court, including the applications of all LGBTQ+ identifying groups. Following an immediate and negative public reaction, particularly on social media, Chief Justice McLachlin used her scheduling power to add a second day to the TWU hearings, and then extended intervention status to the 17 applicants whom Justice Wagner originally rejected (Both orders can be found here). Two days later, Justice Wagner gave an interview to the Globe and Mail explaining that he had “no intention to . . . [more]

Posted in: Legal Ethics

Conflicted Regulation in the Public Interest

Fiduciary law deals strictly with conflicts of interest. A fiduciary is not permitted to have an interest that conflicts with the duties owed to their beneficiary unless the conflict and all material facts have been disclosed and consent is obtained Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23. Where a fiduciary benefits without consent, the fiduciary is ordinarily required to disgorge the benefit whether or not the beneficiary’s interests have been compromised. Strother v. 3464920 Canada Inc., 2007 SCC 24

The Rules of Professional Conduct are no less strict. It is professional misconduct for . . . [more]

Posted in: Legal Ethics

Time for Technology Ethics Opinions in Canada?

Lawyer competence is a relatively new concern for Canadian law societies. It was only in the 1970s, for example, that law societies really embraced the idea that they had a formal mandate to regulate the post-entry competence of lawyers. In addition to being a relatively new regulatory concern, lawyer competence is also an increasingly complex issue. Law practice has become highly specialized. Also, our understanding of lawyer competence has become more nuanced, now implicating a wide range of matters including, for example, technology, culture and wellness.

How best to handle this modern reality? Adding length and detail to rules of . . . [more]

Posted in: Legal Ethics

Personal Plight: Mending the Market

“Personal plight” legal services are those provided to individual clients whose legal needs arise from disputes. Personal plight areas such as family law, refugee law, and human rights are the site of Canada’s worst access to justice problems.

The market for personal plight legal services functions poorly, as Malcolm Mercer and Amy Salyzyn have shown in this space. A key problem, I suggest here, is that it is too difficult for consumers to shop intelligently. This undermines healthy competition and legal professionalism, in addition to access to justice. Regulators can and should mend the market for personal legal services. . . . [more]

Posted in: Legal Ethics

Against Tradition

In a recent column in Canadian Lawyer, Ian Holloway, my Dean and friend, wrote in defence of lawyerly traditions, such as calling Ontario’s law society the Law Society of Upper Canada, and barrister’s robes. At the same time he emphasized the importance of professional innovation, particularly in legal education. He concluded that the ambition of lawyers should be “Change in substance, tradition in form”.

I have some serious reservations with Ian’s position. I agree that some of our traditions have modern advantages (e.g., robes neutralizing class and gender-based judgments of lawyers based on their clothes). But when we weigh the . . . [more]

Posted in: Legal Ethics

Contingent Fees, Portfolio Risk and Competition – Calls for Reform

In theory, contingent fee pricing is an elegant way of providing access to justice at a fair and reasonable price. In this column, I try to look at both theory and practice and also at prospects for reform.

Time and materials

Let’s start with a different approach to pricing. Legal work can be done on a “time and materials” basis (to use language from another industry), on a fixed fee basis or on a contingent fee basis. These different approaches shift risk between suppliers and consumers of legal services.

Legal work is still largely priced on a “time and materials” . . . [more]

Posted in: Legal Ethics

Law and Morality: Reflections on the Angela Cardinal Case

What constrains lawyer conduct? I don’t mean in terms of positive law – i.e., the codes of conduct or the decisions of the court. I mean at its source – what is the bottom line restriction on a lawyer’s professional role? I’ve been thinking about this question a great deal following the story of Angela Cardinal– the sexual assault victim who was incarcerated for 5 nights to ensure her testimony in a preliminary inquiry (trial judgment here; media reports here and here). If what happened to Angela Cardinal was wrong (and I think it’s hard to argue that . . . [more]

Posted in: Legal Ethics

Letter to a Future Lawyer . . .

Spring is upon us. Law school exams are over but students are still in law libraries, studying for the bar exam. These students are looking forward to becoming articled students and then lawyers. Others have received acceptance letters and are looking forward to starting law school in the fall. It is the circle of law.

I recently met a future law student, full of enthusiasm and excitement at the prospect of soon beginning law school. He was kind enough to write to me after the brief meeting and seek my advice on what to read to prepare for law school; . . . [more]

Posted in: Legal Ethics

Beware the Binders Full of Women (Judges)!

There has been no shortage of press on the conduct and competence of Canadian judges lately. Headlines abound about “Alberta judge who asked sex assault complainant about keeping her knees closed”, the “Hamilton judge who wore Trump hat” and the “Nova Scotia judge under fire for claiming ‘a drunk can consent’” So notorious are concerns about Canadian judges that the comedy show This Hour has 22 Minutes ran a sketch about neighbours being scared when a judge moves in down the street.

More recently, an article ran in the Globe and Mail which appears to suggest another, . . . [more]

Posted in: Legal Ethics

How Lawyers Can Learn to Stop Worrying and Love CPD

Is continuing professional development a waste of time? Or, more specifically, have law societies made a mistake by using mandatory professional development as a mechanism for ensuring lawyer competence?

The Supreme Court of Canada recently upheld the Law Society of Manitoba’s mandatory CPD requirement in Green v Law Society of Manitoba 2017 SCC 20. I blogged about the case at ABlawg.ca, where I suggested that the Court’s decision was obviously correct. My analysis on that point was, though, premised on principles of administrative law – my claim was that the Court was correct to hold that the Law . . . [more]

Posted in: Legal Ethics

Disclosure and Investigated Complaints

It is commonly difficult for prospective clients to obtain good information about lawyers and paralegals. The significant growth of brand advertising is cogent evidence of this. Potential clients assume that brand is evidence of quality when that may well not be the case. Substantial sums are paid for brand advertising because it works. Similarly, the advertising of dubious awards and reassuring photographs evidences that lack of genuine information about quality.

Concerns about lack of information

A recent market study in England and Wales by the Competition and Markets Authority said that:

… consumers generally lack the experience and information they

. . . [more]
Posted in: Legal Ethics

A Duty to Be Technologically Competent: Coming Soon to a Professional Code of Conduct Near You?

When I suggested ten years ago that email would become the principal means by which clients and lawyers would communicate, many people suggested I was dangerous, that I was possibly insane, that I should not be allowed to speak in public, and that I certainly did not understand anything about security or confidentiality but [email] technology and many other emerging technologies have now firmly taken hold.[1]

So much has changed in a relatively short period of time when it comes to our use of technology in delivering legal services. As noted by Richard Susskind above, the use of email . . . [more]

Posted in: Legal Ethics