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Archive for the ‘Legal Ethics’ Columns

What Is Non-Adversarial Advocacy?

There is no provision in the Model Code that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversarial advocacy.[1] (See here.) In that study, I talked to collaborative lawyers and family lawyers who have a . . . [more]

Posted in: Dispute Resolution, Legal Ethics

“Trial by Zoom”: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings

It’s not business as usual in Canadian courts. The COVID-19 pandemic has upended court operations, just as it has upended every other aspect of daily life. One response to the need to ensure physical distancing has been to move in-person court hearings to virtual formats. Beyond the utility of virtual hearings as short term emergency measures, there is reason to believe that this moment may well mark the start of a shift toward increased use of virtual hearings in the longer term. In discussing the impact of COVID-19 on courts, the Chief Justice of the Ontario Superior Court has stated . . . [more]

Posted in: Legal Ethics

The British Invasion: Legal Services Regulation Edition

Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.

While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access . . . [more]

Posted in: Legal Ethics

A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

Everyone has an obligation to report when they have reason to believe that a child is in need of protection, including lawyers – except where that information is protected by solicitor-client privilege. If the information is confidential a lawyer is required to report it just like anyone else; but if the information is protected by solicitor-client privilege, a lawyer can only report it pursuant to an exception. The future harm exception provides a lawyer with the discretion to disclose a limited amount of qualified information to try to avert serious physical or psychological harm, or death.

The Duty to Maintain

. . . [more]
Posted in: Legal Ethics

Harassment in the Legal Profession: A Few Bad Apples?

Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.

“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often . . . [more]

Posted in: Legal Ethics

Equality, Diversity and Inclusion – What Can We Agree on and What Can’t We?

I recently attended part of RODA’s 5th Annual Diversity Conference which was entitled Resilience in Challenging Times. I was particularly interested in hearing the panel Building Consensus: The Future of EDI at the LSO. There were four panelists; two from the Stop the SOP slate and two who had been members of the Law Society Challenges Task Force.

The context for the panel appeared to me to be intentionally post-Statement of Principles, to address questions beyond the debate about compelled speech and belief. Perhaps not surprisingly, there was little if any consensus and little apparent attempt to find any. . . . [more]

Posted in: Legal Ethics

The Intersection of Ethics and Well-Being

ABA RESOLUTION 105

The ABA House of Delegates adopted Resolution 105 at the 2018 ABA Midyear Meeting. The resolution supports the goal of reducing mental health and substance use disorders and improving the well-being of lawyers, judges and law students. It urges stakeholders within the legal profession to consider the recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The pursuit of lawyer wellness has spread rapidly through law firms, bar associations, state bars and state supreme courts.

The National Task Force on Lawyer Well-Being, assembled in August 2016 to “create a movement toward . . . [more]

Posted in: Legal Ethics, Legal Technology, Practice of Law

Judges Need Ethics Rules, Not Just Ethical Guidance

Canada is extremely fortunate to be served by a highly competent and responsible judiciary. But judges, like all of us, experience ethical challenges as they fulfill their vitally important social functions. However, many Canadian judges are not subject to a binding code of conduct that can shepherd their behaviour. Instead, they are only offered advice to assist them in navigating ethical issues. We suggest that this should change.

There are currently over 1000 federally appointed judges in Canada. Although these judges are subject to a few restraints by virtue of the Judges Act (such as, for example, a prohibition on . . . [more]

Posted in: Legal Ethics

Denis v. Cote and the Myth of Onus in Journalist Shield Law

In Denis v. Cote, the Supreme Court considered Canada’s new journalist shield law, the Journalist Sources Protection Act (JSPA).[1] The JSPA, which amends both the Canada Evidence Act and the Criminal Code, altered the common law on protections afforded to the confidential sources and notes of journalists.[2]

The common law regime balances two competing public interests in deciding whether names or notes must be disclosed to police or civil plaintiffs. In the criminal context, there is the public interest in the detection and prosecution of crimes (law enforcement), to which journalist notes and sources are . . . [more]

Posted in: Justice Issues, Legal Ethics

Coercive Control: What Should a Good Lawyer Do?

I am currently conducting research to determine whether coercive control can be considered psychological harm for the purpose of the future harm exception to confidentiality and solicitor-client privilege.[1] My research is supported by the OBA Fellowship in Legal Ethics and Professionalism Studies. In that research I’m determining whether a lawyer can disclose, but doing that research has provoked me to wonder whether a lawyer should disclose.

In December 2017, Andrew Berry murdered his children, six-year-old Chloe and four-year-old Aubrey. Berry was convicted of second degree murder. Sarah Cotton, the girls’ mother, feared Berry, claiming that he had made threats . . . [more]

Posted in: Legal Ethics

Dispatches From the Front Lines of Canadian Legal Ethics

On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date.

Thematic Index

  • Access to justice (see presentations #3 and #11 below)
  • Zealous advocacy and its limits (see presentations #1 and #2 below)
  • Harassment and discrimination within the profession (presentations #16, 17, 18)
  • Teaching ethics in law school (presentations #6, 7, 8, 9)
  • The Regulation of Judges (presentations #12, #15)
  • The limits of “business-like” lawyer
. . . [more]
Posted in: Legal Ethics

It’s Finally (Sort Of) Here!: A Duty of Technological Competence for Canadian Lawyers

For years, Slaw commentators (including myself) have called for Canadian law societies to adopt a duty of technological competence for lawyers. On October 19, 2019, a major development occurred, which has largely gone unnoticed. The Federation of Law Societies of Canada amended its Model Code of Professional Conduct to add the following commentary to the competence rule (r. 3.1-2):

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated . . . [more]

Posted in: Legal Ethics