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Archive for the ‘Legal Ethics’ Columns

The “Good Character” Problem

The recent appeal decision AA v Law Society of Ontario upheld the Law Society Tribunal’s 2023 decision to licence to applicant “AA” after finding him to be of “good character”—even though AA had admitted to have sexually abused three young children in 2009 (and to hiding this information from the Law Society in an earlier licensing application, which he withdrew in 2017 following an anonymous tip disclosing the abuse).

The AA case and other good character hearings stemming from sexual misconduct involving minors have generated considerable discussion both inside and outside the legal profession about how law societies should assess . . . [more]

Posted in: Legal Ethics

A Sounder Footing for Ontario’s Tribunals: The Fewer Backlogs and Less Partisan Tribunals Act

A Bill recently introduced to Ontario’s Legislature can tangibly relieve the crisis of access to justice and politicization in the province’s tribunals, and blaze a path to better appointments for adjudicators and judges across the country. The Fewer Backlogs and Less Partisan Tribunals Act was introduced by Liberal MPP Ted Hsu, and will be debated in the Ontario Legislature on April 18th.

Ontario’s high-volume tribunals — especially the Landlord & Tenant Board, the Human Rights Tribunal of Ontario, and the Automobile Accident Benefits Service — have been afflicted by dire access to justice problems in recent years. The root cause . . . [more]

Posted in: Legal Ethics

Tribunals: The Access to Justice Advantage

Imagine suing the federal government without a lawyer, making your case before a neutral adjudicator, and then getting an enforceable decision, on the merits, less than four months later. This may sound like a far-fetched fantasy if you’re familiar with civil litigation in Canada. In our courts, civil lawsuits routinely take 4-5 years to get to adjudication. Legal fees average about $40k per party to get through a 5-day trial. Self-representation is a frustrating and overwhelming ordeal for most people who try it.

And yet the four month path to adjudication is not just an idle fantasy to ponder while . . . [more]

Posted in: Legal Ethics

Try a Little Empathy (Or Maybe Lawyers Aren’t the Answer to Every Problem)

In December, three intelligent, accomplished, and articulate University leaders embarrassed themselves and their institutions in their testimony before Congress. Each of them stumbled in responding to questions whether calls for genocide against Jewish persons would violate their school’s policies. The questions weren’t unexpected or one-offs. Yet, every time each of these Presidents was asked, they stumbled in their responses. Within a few weeks, the Presidents of mighty Penn and Harvard had publicly acknowledged their failures and resigned in the wake of the scandal. Only the President of MIT remains in the top job.

How could this happen? It certainly wasn’t . . . [more]

Posted in: Legal Ethics

Unavoidable AI?: The Increasing Ubiquity of Generative AI and Lawyers’ Duty of Technological Competence

More than a year after the public release of ChatGPT, excitement continues to build about the use of generative AI in the delivery of legal services. Notes of caution persist, too, as examples of lawyers using AI badly continue to trickle out (see, e.g. here and here). Although the full impacts of generative AI on the work of lawyers are yet to be seen, there is clearly an immediate need to discuss the responsible and ethical use of AI by legal professionals.

Canadian lawyers have a general duty of technological competence. In previous Slaw columns, I’ve discussed two ways . . . [more]

Posted in: Legal Ethics

What Do I Do When I Receive a Law Society Complaint?

Receiving notice from a regulator that there has been a professional conduct complaint against you can be overwhelming and stressful. Many lawyers’ minds jump to the worst-case scenario: Am I going to lose my licence? Fortunately, this is a rare outcome. But lesser penalties or remedial consequences can still affect your career, and even if the complaint is dismissed the process can be lengthy and challenging.

Most conduct complaints are resolved without proceeding to discipline at all.[1] This is the goal upon receiving a complaint, and it is often attainable. Your response—or lack thereof—plays an important role in determining . . . [more]

Posted in: Legal Ethics

Lawyers’ Ethics and Lawyer Regulation in 2023: Looking Back, Looking Ahead

The end of a calendar year invites reflection on the months just passed. Inspired by Alice Woolley (now Justice Alice Woolley) who compiled several year-in-review lists when she was a professor (see, for example, here, here, here and here), in this column I look back on five areas of key developments in lawyers’ ethics and lawyer regulation in 2023. I also flag several major court cases and disciplinary proceedings from 2023, many of which are ongoing.

Five Areas of Key Developments

1. Generative AI and the delivery of legal services. In November 2022, ChatGPT was released to . . . [more]

Posted in: Legal Ethics

Systemic Racism, Clients, and the Law Societies

Systemic racism is a reality in Canada. At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity. The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.

So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law. (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy . . . [more]

Posted in: Legal Ethics

The Legal Ethics of Delay

Canada has one of the world’s better justice systems, according to the World Justice Project Rule of Law Index. We are ranked 12th out of 140 world countries by the WJP. Delay, however, is a major Achilles’ Heel. (1)  

  • When it comes to providing timely justice in civil matters, Canada ranks only 56th worldwide according to the WJP Index. We received a failing grade of 47% for this, the lowest among 44 sub-factor scores for Canada. In Ontario, for example, the average civil trial occurs over five years after the Statement of Claim was delivered. 
  • Some administrative tribunals provide
. . . [more]
Posted in: Legal Ethics

AI and Legal Ethics 2.0: Continuing the Conversation in a Post-ChatGPT World

Six months ago, I wrote a column about ChatGPT and other tools using large language models (“LLMs”). My aim there was to introduce this technology to readers and briefly outline intersections with legal ethics and access to justice issues. This column provides an update on this topic, including a deeper dive into legal ethics considerations.

I. What are we talking about?

My previous column included a basic overview about how ChatGPT and other tools built on LLMs work. I reshare the following two quotes as a starting point here:

A basic explanation of how ChatGPT works:

“It is trained on

. . . [more]
Posted in: Legal Ethics, Legal Technology

Five Legal Ethics and Regulation Considerations When Starting a New Practice

I recently started my own practice. There’s a lot to do and a lot to think about—but seeing as I practice in the area of professional responsibility, one of my foremost concerns was ensuring my new firm would comply with Law Society requirements.

From my recent experience, here are five things to think about from an ethics and professionalism perspective if you are opening your own firm or solo practice:

  1. Transferring clients: If you are leaving a firm, discuss which (if any) clients you wish to bring with you as soon as possible. Importantly, you cannot unilaterally decide that
. . . [more]
Posted in: Legal Ethics

Torts and Family Violence: Ahluwalia v Ahluwalia

By: Jennifer Koshan and Deanne Sowter, cross-posted to Ablawg.ca

Case Commented On: Ahluwalia v Ahluwalia, 2022 ONSC 1303 (Can LII); 2023 ONCA 476 (CanLII)

Intimate partner violence (IPV) takes many forms, all of which cause harm to survivors (who are disproportionately women and children). In August, the Minister of Justice and Attorney General of Canada declared that gender-based violence is an epidemic. However, only certain forms of IPV were subject to legal sanction historically – primarily physical and sexual abuse, although sexual assault against a spouse was only criminalized in 1983 (see Criminal Code, RSC 1985, . . . [more]

Posted in: Justice Issues, Legal Ethics