On March 1, 2021, the long-awaited amendments to the Divorce Act, RSC 1985 c3 (2^nd Supp) came into effect, changing the word “custody” to the more accurate “decision-making”, expanding on the best interests of the child test, creating presumptions for relocation, and for the first time, recognizing family violence. In addition to these crucial substantive changes, there has been a bubbling excitement among the family law bar about the amendments’ emphasis on resolving family law matters through non-adversarial processes. (E.g.: here and here.) Except where there is family violence, and only where “appropriate”, . . . [more]

Earlier this month, the Canadian Judicial Council published updated ethics guidance for federally appointed judges. The new Ethical Principles for Judges substantially revises a 1998 document of the same name. Among the revisions is a caution that judges must be technologically competent. The section addressing judicial diligence and competence includes the following statement:

3.C.5 Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties.

This provision on technological competence is a welcome addition to the Principles. Two years ago, I argued in a Slaw column that there should be a formally . . . [more]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]