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Archive for the ‘Legal Ethics’ Columns

Cultural Competence and the Next Generation of Lawyers and Lawyer Regulation

Every year, I have the pleasure of teaching first year law students at the University of Ottawa in a dispute resolution and professional responsibility course. A big part of the course involves having students gain “hands-on” experience through simulations where they interview clients, write client advice letters, negotiate with opposing counsel and conduct mediations. For someone with a passion for legal ethics like me, the course is extra fun because this practical experience is coupled with extensive instruction on professional responsibility issues. Among other things, at the end of the term, the students write a final paper reflecting on one . . . [more]

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Time for Webcams in the Courtroom? the Imperative of Transparency and Accountability

“Sunlight is said to be the best of disinfectants.” So declared Louis Brandeis over a century ago. Brandeis’ argument was that shining a light on activities both exposed wrongdoing as well as deterred it. The second part of his quote is that “electric light the most efficient policeman.”[i] Writing in 1914, Brandeis was ahead of his time. In 2017, his words should make us sit up and take notice. Especially when it comes to the administration of justice.

Justice Morris Fish – recently named to the Order of Canada – understood Brandeis’ quote more than others. Fish was a former . . . [more]

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Access to Justice Needs Access to Research

In December, the UK Competition & Markets Authority released its Legal services market study focused on individual consumer and small business experience of purchasing legal services in England and Wales. Not surprisingly, this report (the “CMA Market Study”) found:

Overall, we have found that the legal services sector is not working well for individual consumers and small businesses. These consumers generally lack the experience and information they need to find their way around the legal services sector and to engage confidently with providers. Consumers find it hard to make informed choices because there is very little transparency about price, service

. . . [more]
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Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization . . . [more]

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Transparency Can Be Tricky: Questions About Solving the Lawyer Quality Information Gap

In a recent Slaw blog, Malcolm Mercer thoughtfully explores how information asymmetry between legal service providers and consumers may impact access to justice. He suggests that creative solutions are necessary in order to provide the public with better information about the quality of lawyers and the legal services that they provide.

Mercer makes a good point: if the public feels that it can’t accurately assess the quality of legal services, there is a risk that people won’t retain lawyers or, at the very least, people may feel compelled to hire those practitioners who charge lower rates even if they . . . [more]

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Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy Era”?

What role should empathy have in a system of laws? What does an empathetic legal system look like?

In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more

. . . [more]
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Stepping Up for Diversity: Law Societies Must Begin to Address the Challenges Faced by Racialized Lawyers and Paralegals

Law Societies have a lot on their plates these days: ABS, access to justice, advertising, articling . . . and that’s only the first letter of the alphabet! It is critical that the work of the Law Society of Upper Canada’s Working Group on the Challenges Faced by Racialized Licensees not get lost in all this regulatory alphabet soup. The report is important. It is groundbreaking. It is also controversial. And it is necessary. This report will be debated by Ontario’s benchers on December 2nd. The Law Society of Upper Canada has a real opportunity to exercise strong . . . [more]

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Access to Justice and Market Failure

Lemonish Lawyers? [1]

The problem of access to justice is likely the result of a number of causes. Unnecessary complexity in substantive and procedural law is likely part of the problem. Our adversarial court-based administration of justice is problematic both where powerful actors have disputes with ordinary people and where family disputes require resolution. Ease of access to information through the internet may be both part of the solution and part of the problem.

Market regulation and access to justice

Our approach to legal services regulation plays a role as well. Limiting who can provide legal services restricts how . . . [more]

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The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike . . . [more]

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How Would Ruth Bader Ginsburg’s Comments About Donald Trump Play Out in Canada?

Donald Trump and his polarizing ideas have attracted widespread criticism. However, I suspect that few expected to find a harsh, vocal critic in a United States Supreme Court justice. Judges, after all, are held to the highest standards of impartiality, and political statements can easily raise the question of judicial bias. Against this backdrop, Justice Ruth Bader Ginsburg’s comments about Trump’s presidential campaign present an interesting case study. What happens when a judge is openly opposed to a presidential candidate but has no relevant case on the docket? Could such a comment lead to a finding of bias in Canada? . . . [more]

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A Risky Appetite for Apps: Can Best Practices Help?

Apps are everywhere. A 2014 study found that there are roughly 18 million apps users in Canada and that Canada’s apps enterprises generate $1.7 billion annually. These numbers have presumably only increased in the last two years.

The market for legal apps, in particular, is significant and growing. Research that I’ve done along with colleagues at the University of Ottawa estimates that there are now several dozen apps available in Canada that purport to help with law-related issues. This number is continually growing. In the United States, the numbers are exponentially larger: hundreds of legal apps are available.

The developers . . . [more]

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Reforming the Judicial Discipline Process: Putting the Public in the Public Interest

Over the summer, Justice Canada engaged in a low-key consultation on “Judicial Discipline Process Reform”, releasing a bland discussion paper appropriately-titled “Possibilities for Further Reform of the Federal Judicial Discipline Process”. The title is at once both misleading and accurate. It is in part misleading because there have been no significant changes to the federal judicial discipline process as set out in the Judges Act since that statute was enacted in 1971. It is accurate because the Justice Canada consultation comes on the heels of reforms enacted by the Canadian Judicial Council (CJC) in 2015 after . . . [more]

Posted in: Legal Ethics