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Archive for the ‘Legal Ethics’ Columns

Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

The phenomenon of organized pseudo-legal commercial arguments (OPCA) being used to advance claims not recognized by law has received a great deal of attention in the past year. From last year’s judgment of Associate Chief Justice Rooke in Meads v. Meads, 2012 ABQB 571, to the recent occupation of a Calgary apartment by a Freeman-of-the-land who claimed it as an “embassy”, OPCA litigants have disrupted the functioning of legal system while attracting public attention and interest. In this column I argue that the defining indicia of OPCA are also present in the activities of some lawyers; specifically, in lawyers . . . [more]

Posted in: Legal Ethics

A Tale of Two Regulators: When Courts and Law Societies Collide

The issue of lawyer civility—or lack thereof—continues be a hot topic this fall, with the Groia matter reaching its way to a Law Society Appeal Panel hearing on September 9 and 10.

Many arguments have been advanced both in favour of and against creating formal regimes to monitor and sanction lawyer incivility. For example, the disciplinary panel that originally heard Mr. Groia’s case suggested in its reasons that regulating lawyer civility is necessary to protect the proper administration of justice, trial fairness, and public confidence in the justice system. Others, including myself and fellow Slaw columnist Alice Woolley, have questioned . . . [more]

Posted in: Legal Ethics

The (So-Called) Professional Responsibility to Foster Access to Justice

There are many excellent recommendations in the CBA’s Reaching Equal Justice report. 

As a law professor and a member of the Legal Education and Training Team of the CBA’s Legal Futures initiative, I naturally focused on those relating to law schools, including this one:

All graduating law students should have a basic understanding of the issues relating to access to justice and know that fostering access to justice is an integral part of their professional responsibility.

This sounds great but there is a problem. Reaching Equal Justice assumes that access to justice is part of a Canadian lawyer’s professional . . . [more]

Posted in: Legal Ethics

A Bright Line Rule of Limited Scope

A decade ago, the Supreme Court of Canada introduced a new conflicts rule into Canadian law. The rule was fashioned from the ABA Model Rules of Professional Conduct. This new “bright-line rule” generated substantial controversy within the profession. In July, the Supreme Court released its decision in McKercher which both restated and reformulated the “bright line” rule[i].

The “bright-line rule” as first articulated in Neil provided that a lawyer could not act in a matter directly adverse to the immediate interests of a current client without proper consent. The impact of this rule was said to be somewhat . . . [more]

Posted in: Legal Ethics

Why Wreck-It Ralph Went to Law School

I’m bad, and that’s good. I will never be good, and that’s not bad. There’s no one I’d rather be than me.” – Wreck-It Ralph

The Ontario Bar Association’s marketing campaign, Why I went to Law School, has attracted media attention (National Post July 31 2013, Globe and Mail February 6 2013) as well as being cogently criticized by Jordan Furlong on SLAW back in February (Why Lawyer Image Campaigns are Pointless).

In this month’s column I want to add my two cents to that conversation. What I say is informed by . . . [more]

Posted in: Legal Ethics

Does Solicitor-Client Privilege Apply to an Attorney-General Who Is Not a Lawyer?

No, it should not. That’s the best answer under existing doctrine and I think it is also the right answer.

In my previous post The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal Profession, I reviewed the BC courts’ rejection to a challenge to a non-lawyer being appointed to the top legal job in the BC government.

Since then, BC Premier Christy Clark appointed a lawyer (!) as Justice Minister and Attorney General (The Hon. Suzanne Anton).

Despite this, the trend of non-lawyers being appointed as AGs is not abating and the . . . [more]

Posted in: Legal Ethics

What if We Didn’t Wait? Promoting Ethical Infrastructure in Canadian Law Firms

Conventional models of regulating lawyer conduct tend to be largely reactive. In most cases, law society disciplinary regimes respond after a complaint is filed alleging that a lawyer has engaged in some kind of professional misconduct. One obvious shortcoming to this approach is that concerns are addressed only after they become problems. For clients and affected third parties, this type of “after the fact” regulation often provides little solace: lawyer discipline can be a lengthy, time-consuming process that yields little in the way of meaningful relief. Obviously, it would be preferable if the problem never occurred in the first place. . . . [more]

Posted in: Legal Ethics

Good Character and Bad Regulation

Introduction
 On May 21, 2013 Matt Maurer posted on SLAW noting that the Law Society of Upper Canada had decided that Ryan Manilla was of sufficiently good character to be admitted as a member, reversing its prior decision that he lacked such character (here).

In this post I place the Manilla decision in the context of the broader application of the good character requirement for Law Society admission and, in particular, in the context of the Federation of Law Societies’ recommendations for reforming that requirement ((National Admissions Standards Phase 1 Report). My comments reflect my . . . [more]

Posted in: Legal Ethics

The Access to Clothing Crisis

Access to Clothing[1] is a complex issue that seems almost impossible to effectively address. Some consider it one of our most pressing issues[2]. The well-off continue to be able to afford appropriate clothing for all occasions. The least fortunate amongst us are able to access free or subsidized clothing to be worn during the most important events in their lives. The middle class cannot afford to purchase clothing at all.

To the great discomfort of businesses, restaurants and hosts and hostesses everywhere, most members of the middle-class have given up wearing purchased clothes entirely. Many people now . . . [more]

Posted in: Legal Ethics

Overseas Adventures: a Quick Look at the Legal Ombudsman for England and Wales

In the Canadian legal press, England and Wales is often presented as something of a regulatory boogieman. We are continually warned that, if we don’t shape up, we will lose the ability to self-regulate, just like those poor English lawyers! An equally strong undercurrent of anxiety percolates around English forays into non-lawyer ownership of law firms. References to “floodgates” and “earthquakes” abound; our calm Canadian sensibilities are aflutter. For a population that so often asserts itself as “not-American”, it seems like a new rallying cry has taken hold for many in the legal profession: anything but England!

Often lost in . . . [more]

Posted in: Legal Ethics

The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal System

Must the highest legal officer in the land be a lawyer? Surprisingly, the answer is no.

Recently, the B.C. Court of Appeal dismissed an appeal from a decision of the BC Supreme Court that held that the appointment of a non-lawyer Attorney General (the Honourable Shirley Bond) did not breach that province’s Legal Profession Act. In Askin v. Law Society of British Columbia, 2012 BCSC 895, Madam Justice Stromberg-Stein held that “the Legal Profession Act cannot be read in a manner which limits the Lieutenant Governor’s absolute and unfettered right to appoint members to the Executive . . . [more]

Posted in: Legal Ethics

I Gotta Tell Ya, It’s Complicated! Candour Owed to Clients1

In R. v. Neil, Justice Binnie stated that the duty of candour was an aspect of the duty of loyalty. As Justice Binnie put it, an aspect of the duty of loyalty is

a duty of candour with the client on matters relevant to the retainer

The fiduciary duty of candour was the basis for the earlier decision of the Supreme Court of Canada with respect to physicians in McInerney v. MacDonald,

While not previously said quite so plainly, it has long been clear that fiduciaries owe a duty of candour to their beneficiaries. As the B.C. Court . . . [more]

Posted in: Legal Ethics