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Archive for the ‘Legal Ethics’ Columns

Lawyers Should Not Abuse Their Perceived Legal Authority in Public Debate

Professor Bruce Pardy is not a constitutional law expert. His scholarship in peer-reviewed journals is largely on environmental law. Yet, over the past several months, the Queen’s Law professor has commented in the lay media on constitutional law issues.

In one instance, on October 3, 2017, the National Post published Pardy’s opposition to the Law Society’s new Statement of Principles requirement, citing selected Charter free speech jurisprudence as his underlying support. A policy that compels lawyers to privately acknowledge equality-related obligations, Pardy argues, is compelled speech and akin to authoritarian rule.

Publicly sharing opinions in the Post is not . . . [more]

Posted in: Legal Ethics

Measuring Legal Service Value, Part 1

If you work at a law firm, how good is that firm? If you’re a client or potential client, how good are the different legal services providers that you might choose to patronize?

It’s too difficult, at present, to answer these questions in an objective and reliable way. This is most obviously true for individual people with legal needs. They generally confront a mysterious landscape populated with apparently indistinguishable law firms, as well as proliferating alternative sources of legal services.

However, even experienced corporate clients, and lawyers themselves, lack solid information about the respective merits of different legal service providers. . . . [more]

Posted in: Legal Ethics, Practice of Law

Against a Lawyer’s Duty to Be “Zealous” or “Resolute”

Canadian lawyers have a legal duty of resolute or zealous advocacy. Law society codes of conduct direct lawyers to represent clients “resolutely and honourably” (FLS Model Code, Rule 5.1-1). The Supreme Court of Canada says that a core aspect of a lawyer’s duty of loyalty is the “duty of commitment to the client’s cause (sometimes referred to as ‘zealous representation’)” (R v Neil 2002 SCC 70 at para. 19).

Not everyone likes those duties. They worry that they implicitly endorse lawyer aggression. They think duties of honour and integrity, and as an officer of the court, ought to govern . . . [more]

Posted in: Legal Ethics

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