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Archive for the ‘Legal Ethics’ Columns

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

Tackling Technology

The intersection of legal ethics and technological competency has been a recurring theme in Slaw and other forums for a number of years (see, for example, here, here, and here).

Exactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves (for discussion of what minimum tech standards might look like, see Mitch Kowalski’s and Omar Ha-Redeye’s previous Slaw posts here and here). There is a growing consensus, however, that all lawyers require some level of technological competence in order to meet their professional . . . [more]

Posted in: Legal Ethics

Tweeter or Twitter? Teaching a Federation Approved Legal Ethics Course

This summer I again provided the Federation of Law Societies with the syllabus for my legal ethics course. The Federation requested the syllabus for, presumably, the purpose of verifying that the University of Calgary’s course complies with the Ethics and Professionalism Competency as set out in Table B of the Federation’s Implementation Report for the Approved Law Degree. As it did the past two summers fulfilling the Federation’s request left me feeling both uneasy and uncertain.

Uncertain because I am not sure what the Federation wants to do with the syllabus. Are they simply ascertaining that it is a stand-alone . . . [more]

Posted in: Legal Ethics

Independence and Self-Regulation: I’m OK but I’m Not So Sure About You!

It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.

This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].

In his book The Honest Truth about Dishonesty, Professor Ariely . . . [more]

Posted in: Legal Ethics

Verdict a Victory for Defamed Professor and Defamed Justice System

In June a jury awarded my uOttawa colleague Professor Joanne St. Lewis a stunning $350,000 verdict in her defamation lawsuit against blogger and former University of Ottawa professor Denis Rancourt. The jury’s verdict not only vindicated St. Lewis but also the entire justice system because the defendant had impugned the integrity of most of the judges who participated in the proceedings and the integrity of the Canadian justice system.

Let me be transparent in exposing my connections to the dramatis personae and my own biases about the case. Professor St. Lewis is a colleague whom I consider a friend and . . . [more]

Posted in: Legal Ethics

Of Labels and Letterhead

What’s a lawyer good for?

This isn’t a new question: the role and value of the legal profession has long been a subject of discussion. It does seem, however, that this question is now being raised with increasing frequency in a variety of forums. As technology continues to advance, important questions continue to be raised about what tasks still require the input of specially trained (and often expensive) legal professionals. Growing concern with access to justice has inspired similar types of questions. As Malcolm Mercer has argued in his recent Slaw column: “If we cannot find ways to effectively . . . [more]

Posted in: Legal Ethics

You Can’t Have It Both Ways

Either limit the regulatory monopoly or provide for the efficient and effective delivery of legal services for all legal problems

Access to justice and legal services is a central challenge both for society and for the legal profession. The extent to which members of the public are unserved, under-served or inefficiently served is a difficult issue for lawyers being both a challenge to existing practice and an opportunity for innovation.

As suggested in earlier columns, it seems to me that this access question raises central ethical questions. If there are some legal services which are not provided by lawyers[i] . . . [more]

Posted in: Legal Ethics

Don’t Gossip About Your Client to the Press… Some (Mildly) Complicating Thoughts on Robidoux

On June 9 2014 the Law Society of Alberta suspended Kristine Robidoux for four months after she admitted to violating her duties of confidentiality and candour to her client, provincial Conservative party candidate and former journalist Arthur Kent. Robidoux was legal counsel to Kent’s election team in the 2008 Alberta provincial election. She was also Kent’s agent and the Conservative party’s quadrant chair for five of the electoral constituencies in Calgary. During that time Robidoux had e-mail correspondence with Don Martin, a journalist, in which she gave Martin information about problems with the Kent campaign and, in part based on . . . [more]

Posted in: Legal Ethics

Getting Ready: The Continuing Case for Technological Competence

Canada’s law societies have long had a reputation for being slow, if not resistant, to change. I’ll leave it to others to argue the extent to which this has been, in the past, a fair characterization. Looking at current initiatives like the Nova Scotia’s Barristers’ Society’s Transforming Regulation consultation and the work of the Law Society of Upper Canada’s Working Group on Alternative Business structures, it is apparent that right now there is significant “big picture” thinking going on at Canadian law societies about how to innovate and modernize lawyer regulation.

It remains to be seen, of course, if . . . [more]

Posted in: Legal Ethics

#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

How do we understand bad things done to women by men? Through the few men who do them (#Notallmen)? Through misogyny in our culture as a whole? Through the experience of all women living with the risk that such bad things can happen (#Yesallwomen)? The ferocity of recent internet debate on this topic clouds the possibility that harm done by men to women should be understood as about all these things: the men who inflict it, the society in which it occurs and the lives of the women who live with the possibility of that threat.

In this column I . . . [more]

Posted in: Justice Issues, Legal Ethics, Practice of Law

Rationing Civil Justice

We all know we have an access to justice problem in this country. Actually doing something about it is more of a challenge.

In 1999, Justice Rosalie Abella – then a Justice of the Court of Appeal for Ontario – gave a speech which should be required reading for every lawyer, every judge, every ministry of justice official, every law professor and every law student; in short, for everyone involved in whatever way in the legal profession. Clients don’t need to read the speech because they experience its bitter truths.

Sadly, Justice Abella’s speech is timeless. The only thing that . . . [more]

Posted in: Legal Ethics