In late December, Slaw received two recommended Op-Ed submissions from David Tanovich‘s legal ethics class at the University of Windsor. Today, we’re running them both. 

With holiday dinners right around the corner, family drama seems unavoidable as the strains of proximity and unresolved grievances test relationships during gatherings. This was certainly the case for u/redpanda891, who took to Reddit to after a disconcerting family dinner: “[Am I the A**hole] for calling my sister’s husband a piece of s**t because he’s representing my ex in our divorce?”[1]

In particular, the fiduciary nature required of the lawyer-client relationship aggravates the . . . [more]

In late December, Slaw received two recommended Op-Ed submissions from David Tanovich‘s legal ethics class at the University of Windsor. Today, we’re running them both. 

One hundred and eighty days. That is how long Richard Catcheway, an Indigenous accused, sat in a prison cell for a crime he did not commit. Five to eight years. That is the prison term Casey McIlvride-Lister avoided by pleading guilty. Then we have Dinesh Kumar who avoided a life sentence by taking an offer of 90-days to be served intermittently. While factually dissimilar, Richard, Casey, and Dinesh share a connection: they were . . . [more]

If a lawyer physically or sexually assaults their intimate partner, they may be penalized by their governing law society for conduct unbecoming a member of the profession. If a lawyer commits systems abuse while self-representing, the behaviour may amount to professional misconduct. However, if a lawyer in their representative capacity acts as a tool of abuse on behalf of their client, it seems as though they are unlikely to be found guilty of professional misconduct for their role in the intimate partner violence (“IPV”). To be sure, their professional conduct may be subject to judicial admonishment and even costs consequences; . . . [more]

Over the past twenty years, an increasing number of former judges have returned to the practice of law. Increased life expectancy and better health, shifting cultural attitudes about retirement and potentially lucrative opportunities have prompted a growing number of former judges to resume work as lawyers. For example, between 2013 and 2018, 41 former judges applied to the Law Society of Ontario to have their law licenses restored.[1]

The primary responsibility for regulating the ethical and professional issues generated by this phenomenon lies with the Federation of Law Societies of Canada (FLSC) and the individual law societies. And it . . . [more]

Justice Delayed

Suppose you run a small widget-making business in Ontario. You sent crates of widgets worth $100k to a customer, but they refuse to pay. They say there’s something wrong with the widgets, but you know this isn’t true and you can prove it. The good news is that contract law obliges your customer to pay you, and procedural law allows you to seize their assets to satisfy the debt if they don’t. The bad news is that, if you sue and the other side plays hardball, it will probably take at least four or five years to get . . . [more]

Solicitor-client privilege is the strongest privilege protected under law but at times lawyers’ honour it in the breach. In Canada, the Privilege has been elevated to constitutional or quasi-constitutional status in many circumstances. In fact, the Supreme Court has accorded the Privilege stronger protection than most Charter rights because it is not subject to the reasonable limits test of section 1. In the course of researching my book Solicitor-Client Privilege, I came to realize that in Canada the Privilege enjoys higher status and stronger judicial protection than in virtually any other country. That’s why I came to refer to . . . [more]

Twitter permits (nearly) anyone to broadcast their views on whatever is going on around them, whether a recent Supreme Court decision or the latest Taylor Swift album, as soon as the thought pops into their head.

For lawyers with an active Twitter presence (most of whom identify themselves as lawyers in their bios), the line between the personal and professional realm can be blurry. Tweets about cases and developments in the law are readily interspersed with tweets about the Blue Jays’ roster moves and the latest episode of The White Lotus. It’s easy to slip out of . . . [more]

Should judges make pop culture references in judicial decisions?

This column argues that they should not. As elaborated below, pop culture references risk being more obscuring than elucidating, more alienating than welcoming, and possibly soon out of date. While judges and lawyers may find pop culture references “fun”, the public isn’t well served by this practice.

For readers seeking a thorough overview of this topic, I recommend Michael Conklin’s recent article arguing that American judges should refrain from making pop culture references in their decisions. Many of the points I make here are shared by Conklin, and his article was . . . [more]

Family lawyers cross-examining victims of intimate partner violence (“IPV”) gets little attention in legal ethics literature. To be sure, there is a considerable debate and body of scholarship focused on the conduct of lawyers acting in criminal sexual assault cases, much of which can be analogized to IPV. However, in the family law context there are usually multiple issues to be determined, including the well-being of a third party (i.e.: a child). There are serious problems in family law with abusive spouses self-representing to gain access to their former partner and directly questioning them about the abuse. But my concern . . . [more]

“A bad settlement is better than a good trial.” Every year, I pass along this old lawyer saying to students in my Civil Procedure and Legal Ethics classes. The idea is that pushing on to a hearing is expensive, risky, and time-consuming. Even a far-from-ideal settlement might be better overall.

Thus, lawyers must “advise and encourage” clients to settle their disputes so long as there is a “reasonable basis” to do so, according to the Rules of Professional Conduct. Courts and tribunals strongly encourage settlement with mandatory mediation, cost incentives to settle, and judicial pretrials among other mechanisms.

Of . . . [more]

Last month, a Texas lawyer’s “stunning” failure to comply with professional conduct rules and discovery obligations made international headlines.

The errors occurred in the context of a high-profile defamation case. Ultimately, a jury ordered Alex Jones—a far-right radio host and conspiracy theorist with millions of listeners—to pay nearly $50 million to the parents of a child killed in the Sandy Hook Elementary School shooting in 2012. Jones had repeatedly (falsely) asserted that the mass shooting was a hoax in which the children’s families were complicit, in service of a government plot to take away Americans’ firearms.

Mark Bankston, . . . [more]

In the movie Marriage Story, Nicole (Scarlett Johansson) and Charlie (Adam Driver) are divorcing. They have a young child, and the main issue is the child’s parenting arrangements. In the movie, Charlie is the more reluctant spouse, and he has finally booked a consultation with a lawyer. When he arrives at the law firm, he is told by the receptionist that the lawyer he was there to meet cannot see him because Nicole already did. The lawyer has been conflicted out. It turns out that Nicole has met with several lawyers, at her sister’s insistence, before finally retaining the lawyer . . . [more]