Legal Ethics Archives – Slaw
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Archive for the ‘Legal Ethics’ Columns

What Can We Learn From the English ABS Experience After Five Years?

After five years of ABS liberalization in England (and Wales), it is worth having a look at what has happened. Surprisingly and significantly, the answer is “not much”.

ABS liberalization in England

A decade ago, Legal Services Act 2007 brought about significant changes to the practice of law in England. These changes included allowing what were called alternative business structures to provide legal services where only lawyers were previously permitted to serve clients. The first alternative business structures were licensed in late 2011.

The essential idea of alternative business structures is that constraining ownership of legal practices constrains competition and . . . [more]

Posted in: Legal Ethics

An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of Colten Boushie

We understand the ethical duties of lawyers and judges in a criminal trial – what they ought to do, what their office requires of them. Sure, we argue about the details (e.g., me on prosecutors), but in general we know what defence lawyers, prosecutors and judges ought to do. Yet as shown by Gerald Stanley’s acquittal by a jury on charges of murder and manslaughter after his admitted killing of Colten Boushie, lawyers and judges are not the only people relevant to the functioning of a criminal trial. Juries also hear evidence and decide outcomes.

So what of jurors? . . . [more]

Posted in: Legal Ethics

The Morality of #Metoo

The forced resignation of Patrick Brown as leader of the Ontario Conservatives raises concerns of fairness and due process – for him and for the women accusing him. Christie Blatchford has castigated the party and other public officials for abandoning the “presumption of innocence”, and has highlighted the wrong of ruining a man’s reputation based on anonymous allegations. Others agree. Conversely, the Prime Minister reportedly said that women who made allegations of misconduct “must be believed” and Ontario Premier Kathleen Wynne has said “I believe victims when they come forward”.

Both those responses strike me as fundamentally deficient. Deficient . . . [more]

Posted in: Legal Ethics

Shady Billing: Closing the Hall of Shame

Only “fair and reasonable” fees and disbursements can be charged by lawyers to their clients. This rule is uncontroversial, and applies across the country. Nevertheless, the following billing practices are used by some Canadian firms, and not clearly forbidden by regulation:[1]

  • a retainer contract lists current hourly rates but also provides that the firm can increase those rates as much as it wants, at any point in the future without the client’s further consent
  • a retainer can also allow a firm to both charge for each hour docketed, and charge the client whatever bonus the firm decides is appropriate
. . . [more]
Posted in: Legal Ethics

The Statement of Principles and Inter-Bubble Communication About Racism

There has been significant controversy in Ontario over the new Law Society requirement that every licensee “adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”.

The nature of the Statement of Principles controversy

Much of the controversy has focused on concern that the requirement compelled expressions of belief and accordingly raised the issue of freedom of speech. This was not an unreasonable concern for at least two reasons. As Alice Woolley pointed out in her op-ed column published in . . . [more]

Posted in: Legal Ethics

Is a Bad Lawyer a Bad Person?

In 1976 Charles Fried famously asked, “Can a good lawyer be a good person?” (“The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale LJ 1060 at 1060).

Law and morality are distinct. As a consequence, lawyers sometimes represent bad people, and sometimes help people do bad things. There is thus a legitimate question about whether being a lawyer is consistent with an ethical life. Nonetheless, Fried answered his question “yes”. Because of the law’s legitimacy and justification, a lawyer who assists people to pursue their goals and interests through the law can be – is . . . [more]

Posted in: Legal Ethics

Access to Justice Levies for Lawyers: Putting Our Money Where Our Mouths Are

Tyrell Moodie, accused of drug offences and facing several years in prison, was denied a Legal Aid Ontario certificate because his income of $16,211 per year exceeded the cut-off threshold. Legal aid services for refugees in B.C. and Ontario were threatened with drastic cuts in 2017. Self-represented litigants are now the majority in many family courts, mostly because people cannot afford the legal assistance that they would love to have, and legal aid won’t pay for it.

Every media story about a legal aid shortfall includes a quote from a lawyer, pointing the finger at the government for inadequate funding. . . . [more]

Posted in: Legal Ethics

Who’s a Law Society For?

Canadian law societies operate under a public interest mandate. This premise is often presented without much fanfare or introspection – as a fait accompli, as a matter of common sense, as something always there and always having been there. And, to be sure, there is a way that this framing makes eminent sense. It’s a legal reality as reflected in legislation governing law societies. And, on a more conceptual level, if not for a concern for the public interest, why regulate lawyers at all?

However, once we peel back even a few layers of the onion skin, it quickly . . . [more]

Posted in: Legal Ethics

Cost Disease, the Practice of Law and Access to Justice

How is it that we are such a wealthy society yet services that were once available are no longer available (at least at affordable prices)? Many people, but certainly not all, had help in their homes and farms, even full-time help. Doctors used to make house calls. When I was a child, the milkman[1] made deliveries each day. There used to be people who actually answered telephones in businesses.

What we call the “access to justice” problem seems to be similar in nature. We know that the number of self-represented litigants has dramatically increased over the last four decades. . . . [more]

Posted in: Legal Ethics

Ontario’s Law Society: Orwell’s Big Brother or Fuller’s Rex?

On September 13, 2017 Ontario’s Law Society with no name sent a now infamous e-mail to its licensees stating:

You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.

While some have defended the Statement (see Omar Ha-Redeye here on SLAW and Renatta Austin’s comments on The Current) most commentary has been harshly . . . [more]

Posted in: Legal Ethics

Women Know Who the Predators Are

In the past few years, sexual harassment allegations against several high-profile media executives have generated significant discussion, including on social media. Last week’s New York Times story titled “Decades of Sexual Harassment Accusations Against Harvey Weinstein” is no exception. My Twitter feed was alight with comments and commentary moments after the story was published. A couple of tweets in particular grabbed my attention:

. . . [more]
Posted in: Legal Ethics

Generalism and Access to Justice: Jack of All Trades, Master of None?

The rise of specialization is among the biggest changes in the practice of law over the past hundred years. Most lawyers and paralegals are increasingly able to focus on a smaller number of legal niches. That is good news, for practitioners and also for clients. However, I will suggest here that generalist legal professionalism has an enduring role in fostering access to justice.

Specialization and Generalism Defined

Consider all of the different types of legal need experienced by Canadian individuals, corporations, and state entities within a year. The list would include everything from drafting a will to structuring a merger . . . [more]

Posted in: Legal Ethics