Do judges and former judges owe a duty of confidentiality? This might seem like a silly question. After all, the legal system zealously protects judicial deliberations from compelled disclosure. However, when it comes to recognizing any restriction on judges’ ability to voluntarily disclose or use such deliberations, to date there has been silence. Hopefully, that may soon change as various actors consider the implications of retired judges returning to the practice of law.

The Supreme Court has recognized an absolute privilege that protects the confidentiality of communications between judges in cases: see Mackeigan v. Hickman (1989) and Ontario (Public Safety . . . [more]

In a 2015 speech, Chief Justice Beverley McLachlin implored the legal profession to “accept the idea of change”, including the reality that some tasks that have been traditionally carried out by lawyers can now be more effectively performed through technological means.

It is questionable how much the Canadian legal profession, as a general matter, has taken up the Chief Justice’s call. Developments in one promising area—mobile phone and web-based apps that aim to enhance access to justice (“A2J”)—are largely being driven by individual innovators seeing unmet legal needs and thinking outside the box for new ways to harness technology . . . [more]

I like the Federation of Law Societies’ Model Code of Conduct. It’s not perfect. But it represents the culmination of considerable effort and reflection by intelligent and thoughtful lawyers. It provides meaningful guidance on a number of issues that lawyers face, particularly in relation to conflicts of interest. It provides a vehicle for national discussion and for work on emerging issues and on areas requiring reform. The Federation has done some truly great things with the Code, such as having a Standing Committee to update and revise the Code on an ongoing basis, and creating an interactive website . . . [more]

Jasminka Kalajdzic recently highlighted a New York Times column entitled Panama Papers Show How Lawyers Can Turn a Blind Eye. The column reported that Ramón Fonseca, one of the founders of the Panamanian firm Mossack Fonseca, “told The New York Times that the lawyers did nothing wrong in helping their clients set up shell companies”. Mr. Fonseca was quoted as saying:

We are like a car factory who sells its car to a dealer (a lawyer for example), and he sells it to a lady that hits someone. The factory is not responsible for what is done with the

In an article published in 2010, my colleague Adam Dodek smartly observes that “government lawyers and the work that they do are largely ignored…[t]hey are barely acknowledged in codes of conduct, underrepresented in many law societies and undertheorized in academic scholarship.” Adam also approvingly cites from Allan Hutchinson who characterized government lawyers as “the orphans of legal ethics” because so “little energy has been directed towards defining and defending the role and duties of government lawyers.”

It is unclear how much has changed since Adam made the above observations in 2010. Undoubtedly, the Edgar Schmidt case has recently brought greater . . . [more]

Lindsay Cameron‘s best-selling novel BIGLAW is billed as “The Devil Wears Prada meets One L, BIGLAW provides an insider’s view of the cut-throat world of big New York law firms.”

Most of the partners in the book are bullies. The book is a good read not so much because the characters and the storylines are outrageous but rather because both are credible and familiar. Cameron, a graduate of UBC’s Faculty of Law, was a corporate associate for six years in large law firms in both Canada and the United States. During that time, she no doubt accumulated a . . . [more]

Forty years ago, the confidentiality rule now found in the Federation of Law Societies Model Code was first adopted in the CBA Code of Professional Conduct. The confidentiality rule makes passing reference in the commentary to privilege and makes clear that the confidentiality rule must be distinguished from solicitor-client privilege. The Model Code does not expressly require that lawyers uphold solicitor-client and litigation privilege.

I expect that Canadian lawyers would generally accept that proper professional conduct includes upholding solicitor-client and litigation privilege. After forty years, it is appropriate to question whether the Codes and Rules of Professional Conduct ought . . . [more]

Lately I’ve been spending a lot of time with law society codes of conduct. Not because I’m a law nerd (although I am), but because I’m preparing the second edition of my book Understanding Lawyers’ Ethics in Canada. Much of the time I’m impressed with the codes. They provide clear and helpful guidance to lawyers on a number of important questions of practice, such as how to manage a joint retainer, or withdrawal from representation in the context of a criminal trial. A lawyer trying to answer a question about her duties should start by consulting her law society’s . . . [more]

For many lawyers, December is a month filled with anticipation as most of the provinces announce coveted Queen’s Counsel (QC) appointments prior to Christmas. For federal government lawyers, they waited for an announcement that never came.

In 2013, the Harper government revived the federal QC after a two-decade hiatus. In 2015, the new Trudeau government appears to have quietly abandoned this practice. Or it may simply not have been a priority for a busy new government. Whatever the explanation, if the Trudeau government wants to recognize the value of public service, it should continue the practice of awarding QCs to . . . [more]

Let’s say that you are a good lawyer whose client did something bad. Should you snitch on them to the authorities? What if they did something really bad? What if someone offered to pay you millions of dollars if you ratted them out?

If these questions were asked on a bar exam, the answers would be clear. A good lawyer who abides by the Rules of Professional Conduct cannot disclose any information about the business or affairs of his or her client except in very limited and specified circumstances, such as where there is an imminent risk of death or . . . [more]

January – the traditional time for resolutions and resetting intentions. While we may fail to achieve them, we know the resolutions worth making – exercise more, eat better, spend less, be kinder: in some smaller or greater way, be a better person. What our resolutions are not is a commitment not to do something bad. We don’t say, “this year I’m not going to cheat on my spouse, or assault someone, or steal from my employer.” Our resolutions are positive and aspirational, not negative and constrained. So this is my January question: what would it look like to think about . . . [more]

The principal duties owed to clients are well known: commitment, confidentiality, candour and competence.[i] Much has been written and debated about commitment and confidentiality. Their nature and scope are reasonably well understood. Competence and its legal twin negligence are conceptually simple enough, albeit fact-specific.

Candour is another matter. Candour seems straight-forward. Simply be honest with your clients, tell them what you know and all will be well. But this naïve approach is problematic. As is often the case in legal ethics, difficult issues arise because duties can collide. Candour and confidentiality can be irreconcilable duties and confidentiality is pervasive . . . [more]