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Archive for the ‘Legal Ethics’ Columns

Does Civility Matter?

I once wrote an article titled “Does Civility Matter?” I don’t regret the article, but I regret the title. I regret it because it suggests that I oppose civility as an ambition or virtue of the good lawyer. I don’t. My point (developed further in a more aptly titled 2012 paper) was rather that when law societies regulate lawyer civility they either regulate something they shouldn’t (politeness) or they regulate something they should but in the wrong way (treating ethical violations generically as incivility rather than precisely as specific breaches of a lawyer’s duties). I still hold those . . . [more]

Posted in: Legal Ethics

The Bencher From Amazon?

For generations, Canadian lawyers have been regulated themselves. Law Societies, with elected lawyer benchers and, more recently, with appointed lay benchers, have governed the legal profession. We refer to this as professional self-regulation.

It is increasingly recognized that legal needs are not fully satisfied by lawyers. Some legal needs are satisfied by others. Some legal needs are not satisfied at all. It is now understood that access to justice is an important and difficult policy challenge. In Ontario, section 4.2(2) of the Law Society Act now expressly states that the Law Society has “a duty to act so as to . . . [more]

Posted in: Legal Ethics

Let’s Be Clear: The Case for Explicitly Banning Discriminatory Law Schools

Law societies shouldn’t accredit law schools that have discriminatory admissions policies. In my view, this statement has always been morally true. But we now know that this statement is legally true thanks to the Supreme Court of Canada’s decisions in the two recent TWU cases (see, here and here).

The Court’s analysis in both cases purportedly proceeded under a “reasonableness” standard of review and, thus, professed not to speak directly to the ultimate correctness of the law societies’ refusals to accredit a proposed law school that, to use the Court’s words, “effectively bars many LGBTQ people from attending.” Viewed . . . [more]

Posted in: Legal Ethics

Bridges Over the Chasm: Licensing Design and the Abolition of Articling

What should people who want to practice law have to do before they are licensed? This perennial debate has bloomed once again. The Law Society of Ontario (LSO) is seeking feedback on its Options for Lawyer Licensing consultation paper (Slaw summary here). Two of the LSO’s four options would abolish articling. Candidates would instead have to pass exams covering both legal skills and substantive knowledge. There would also be a law practice program, either required for all candidates (LSO’s Option 4) or only for those practicing in smaller firms (Option 3).

Thinking of licensing in terms of footbridges over . . . [more]

Posted in: Legal Ethics

Regulating Lawyer-Client Sex

In Canada we allow lawyers to have sex with their clients. Or, to be precise: we do not prohibit lawyers from having sex with their clients.

Canadian law societies do regulate lawyer-client sex in a limited way. Almost all law societies prohibit sexual harassment.[1] And most law societies also identify lawyer-client sex as potentially creating conflicts of interest. They identify sexual relationships with clients as the sort of thing that may “conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client” and which may “permit exploitation of the client” (FLS Model Code Rule 3.4-1, Commentary . . . [more]

Posted in: Legal Ethics

Preliminary Thoughts on Green, Groia and TWU

In the last thirty years, Law Societies have been parties before the Supreme Court of Canada in thirteen cases according to CanLII[i] [ii]. Four of these cases have been decided in the last fifteen months[iii]. While others will delve more deeply into this recent jurisprudence, it is interesting to take a preliminary look at the way that the Court has understood the role, responsibility and jurisdiction of the Law Societies. It is noteworthy that the court has been divided in each of these four cases.

In Green v. LSM [iv], the Court upheld mandatory suspension . . . [more]

Posted in: Legal Ethics

See No Evil? Could “Innovation Waivers” Help Break Roadblocks to Reforming Legal Service Delivery?

We need to be more creative and bold when it comes to legal service delivery. To use a well-worn, if ambiguous, phrase: we need to innovate! Among legal circles, this refrain has so thickly hung in the air for so long that it is almost baked into the wall-paper like its cousin refrain: there is an access to justice crisis!

The fact that we repeatedly hear about the need for legal service innovation and for improved access to justice does not, of course, mean that these are not important, pressing goals. To the contrary, there is compelling evidence to suggest . . . [more]

Posted in: Legal Ethics

Measuring Legal Service Value, Part 2

What makes a great law firm? How can one quantify just how great a firm is, and compare it to its competitors? Last time in this space I suggested that legal service value has four elements (full paper here):

  • To the extent that a firm gets good legal results for its clients, it has effectiveness value.
  • To the extent that the firm’s fees are low and easy to pay, it has affordability value.
  • The more the firm’s practices minimize clients’ time and stress costs, the more client experience value it has.
  • Finally, if the firm’s work
. . . [more]
Posted in: Legal Ethics

The Never-Ending Debate: What Should Be Required in Order to Become a Lawyer?

The qualifications required of new Ontario lawyers has been the subject of virtually continuous debate for generations. Starting in the late 1950s, being called to the bar required (i) a law school degree, (ii) practical training through the bar admissions course and (iii) an articling apprenticeship. The bar admissions course came to an end in the 2000s. A law practice program (the LLP) has recently been added as an alternative to articling. The qualifications debate continues with the focus now being whether articling and/or the LLP should continue and, if so, in what form. The central question today is what, . . . [more]

Posted in: Legal Ethics

Law Schools’ Dirty Little Secret

Left-leaning social justice warriors have captured Canadian law schools. So goes recent commentary in the National Post (see, e.g. recent columns by Barbara Kay, Bruce Pardy and Christie Blatchford). Law profs “espouse and impose a particular set of values or opinions and a way of thinking” (Blatchford, emphasis added).

I am not persuaded. As explained below, this commentary is unsupported by relevant evidence and inconsistent with core features of Canadian legal education. I do, however, accept one of its basic premises: law schools have a public interest mandate. They have duties to their students, to the system of . . . [more]

Posted in: Legal Education, Legal Ethics

Is the Law Society of Ontario Still Donating to Political Parties?

One benefit of being a regular Slaw columnist is the ability to revisit previous columns. Roughly four years ago, I wrote a column titled “Why Is the Law Society Donating to Political Parties?: Some Answers and Questions” where I explored and questioned the fact that the LSO (then LSUC) made donations totalling $21,000 in 2013 to the provincial Liberal, Conservative and NDP parties, as reported in a Law Times article.

At the time, the Law Society explained, in part, that “[c]ontributions are only made through the purchase of tickets to attend events hosted by the parties and/or elected politicians” and . . . [more]

Posted in: Legal Ethics

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