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Archive for the ‘Legal Ethics’ Columns

Standards, Rules, and Law’s Quest for Certainty

Law should be drafted in a way that prevents litigation. Statutes, regulations, and precedents should ideally let people predict the decisions that legal authorities would make, if presented with certain facts. If the “shadow of the law” is sharp and clear, then people can avoid and resolve disputes instead of spending time and money litigating over them.

Often, however, it is difficult to create law that both keeps people out of court, and ensures that the resolutions they reach out of court are fair and just.

Amending Pleadings

Consider, for example, the law about amending pleadings. In the . . . [more]

Posted in: Legal Ethics

Regulatory Innovation With a Legal Tech Sandbox

On April 22, 2021, the Law Society of Ontario approved a “Regulatory Sandbox for Innovative Technological Legal Services”, a five-year pilot project through which non-licensee providers will be given the LSO’s blessing to provide “innovative technological legal services” directly to consumers, under the LSO’s supervision. The sandbox was recommended by the LSO’s Technology Task Force in its report released on April 13, 2021. The sandbox is currently slated to launch in October 2021.

The proposed regulatory sandbox emerges after over three years of study by the Technology Task Force, which the LSO established in February 2018. Although it has taken . . . [more]

Posted in: Legal Ethics

You Jump, I Jump: The Perils of Over-Identifying With a Client

Over-identifying with a client can impair objective representation. The Law Society of British Columbia’s “Common-sense Guidelines for Family Law Lawyers” includes nine “Best Practice Guidelines for Lawyers Practicing Family Law”. The second one is that “lawyers should strive to remain objective at all times” and should not “over-identify with clients or be unduly influenced by the emotions of the moment.” In the midst of doing some research recently, I did a search on CanLII of professional misconduct decisions involving family lawyers and I came across an interesting relationship. Of the first thirteen decisions that I looked at, five . . . [more]

Posted in: Legal Ethics

The Accountability Gap and the Struggles of Our Civil Justice System

Conflict management systems are increasingly common within large corporations and other organizations. Workplace interpersonal disputes and bad behaviour are inevitable, but also manageable. Interests can be reconciled, rights can be upheld, and peace can be restored. A conflict management system is built to do exactly that.

Some workplace disputes call for open communication and compromise. However conflict management systems can also ensure that unacceptable behaviour — e.g. harassment, discrimination, and bullying — is corrected and deterred within an organization. Information, mediation, and arbitration are among the building blocks of a good conflict management system. Minimizing the time consumed and the . . . [more]

Posted in: Legal Ethics

Fingers Crossed for a Sandbox!

What makes for an effective and efficient law society? This isn’t a question without controversy. The last several decades abound with debate about what exactly Canadian law societies should be doing and how they should be doing it. Two propositions, however, strike me as relatively uncontroversial: (1) law societies should engage in evidence-based policy making; and (2) law societies should continually evolve their approaches in response to changes in the legal services environment. In short, we need smart and relevant regulation.

The regulatory “sandbox” that will be considered by Law Society of Ontario (LSO) Benchers next week is a prime . . . [more]

Posted in: Legal Ethics

Ensuring Professional Competence?

In February, it was reported that the UK’s Legal Services Board was moving forward with plans to introduce “continuing competence checks” for lawyers. This could involve the regulator obtaining feedback from consumers, judges and peers; making quality assurance visits; and possibly even requiring formal revalidation of lawyers’ credentials.

In my last column, I discussed how the raison d’être of lawyer regulation is to ensure that anyone providing legal services will meet standards of professional competence and professional conduct. In Ontario, this is codified in s. 4.1(a) of the Law Society Act.

But I have long wondered: Is the . . . [more]

Posted in: Legal Ethics

Looking at Legal Ethics Through the Lens of Family Violence

The words “family violence”, “domestic violence”, “intimate partner violence” and “coercive control” do not appear anywhere in the Federation of Law Societies of Canada Model Code of Professional Conduct. The Code does not typically have special rules for special areas of practice, but family violence is not strictly a family law matter. Family violence can be an issue in immigration and refugee law, employment law, corporate law, criminal law, landlord-tenant law, and real estate law, to name a few.[1] When family violence is overlooked, the absence of recognition can perpetuate harm through the justice system. Family violence is . . . [more]

Posted in: Legal Ethics

Not Everyone’s Lawyer?

Should law societies impose gender or age-based restrictions on a lawyer’s practice? Stated otherwise, is it appropriate to permit a lawyer to continue to practice on conditions that restrict their interaction with women (or men) or minors? For the reasons that follow, I believe that the answer to both of these questions is “no”.

The issue of practice restrictions of this sort first caught my attention several years ago when a Connecticut lawyer received a lifetime ban on representing women. This lawyer had been the subject of multiple misconduct allegations by female clients which included accusations of unwanted sexual advances . . . [more]

Posted in: Legal Ethics

Justice Delayed and Denied in Ontario’s Tribunals

Widespread distrust of government helped Donald Trump bring the United States to its knees. Only 17% of Americans trusted the federal government to do the right thing most of the time in 2019, down from over 70% in the 1960s. People who lack any confidence in government tend to be receptive to anti-government populist messages.

The best way to preserve public trust in government is to ensure, as much as possible, that government acts in a trustworthy way. What does this have to do with Ontario’s administrative tribunals? Statutes such as the Human Rights Code, the Residential Tenancies Act . . . [more]

Posted in: Legal Ethics

Why Do We Regulate Lawyers?

This is my first legal ethics column for Slaw. I am delighted and honoured to be taking the place of my former colleague, mentor, and all-around legal ethics and regulation rock star, Malcolm Mercer, who recently assumed the role of Chair of Ontario’s Law Society Tribunal. In the coming months and beyond, I look forward to using this space to consider rules of professional conduct and discipline; governance issues in lawyer regulation; legal education and training; and the future of legal services provision. But before diving into these topics, I propose to take a step back and first consider . . . [more]

Posted in: Legal Ethics

Is It Time to Regulate Collaborative Practice?

Collaborative practice is a dispute resolution process that is primarily used in family law, and it is currently unregulated in Canada. The forthcoming amendments to the Divorce Act include collaborative practice as a “family dispute resolution process” that a lawyer ought to “encourage” her client to consider, where “appropriate”. This suggests to me that a process that has for the last 30 years has been largely community-based, has finally come into its own – into the federal scope of the Divorce Act and therefore into the collective conscience of all Canadian family lawyers. This begs the question of whether it . . . [more]

Posted in: Legal Ethics

A Taxonomy for Lawyer Technological Competence

Over the past decade, many commentators, myself included, have argued that lawyers should have a duty of technological competence. This duty now exists: in October 2019, the Federation of Law Societies of Canada amended its Model Code rule on competence to include explicit reference to technological competence. Several provincial and territorial law societies have incorporated this amendment into their respective codes, and more will hopefully soon follow suit.

The fact that there now exists a formal duty of technological competence raises the question of what, exactly, does this duty entail? What does this duty require from lawyers? In a strict . . . [more]

Posted in: Legal Ethics, Legal Technology