“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]

I’ve previously argued that retired Supreme Court of Canada judges should not practice law. This column considers a distinct type of post-judicial activity: the private retention of retired SCC judges by powerful institutions to prepare reports in response to controversial events.[1] Such “fixer” work does not necessarily (and, in many scenarios, would not) involve the provision of legal services. However, it still raises concerns. As I outline below, retired SCC judges taking on this type of work risks threatening public confidence in the Supreme Court itself. I recommend that, going forward, retired SCC judges should decline such mandates.

What

Every year, tens of thousands of Ontarians go through divorce or separation. Should these people have access to family law services provided by non-lawyers? What if these service-providers were paralegals trained in family law, insured, and regulated by the Law Society of Ontario?

At present, the official answer is no. No one who is not a full lawyer is allowed to engage in any independent family law practice in Ontario. However, multiple expert reports have endorsed paralegal family law practice for Ontario.

The Case for Paralegal Family Law Practice

The case for this reform is straightforward. The majority of separating . . . [more]

In November 2021, the Child and Youth Law section, the Family Law section, and the Ethics and Professional Responsibility Subcommittee of the Canadian Bar Association (“CBA”) submitted a proposal for two amendments to the Model Code of Professional Conduct to the Federation of Law Societies of Canada. The CBA recommended that the Model Code include a section for non-adversarial advocacy as well as distinct standards for the practice of family law. To be sure, there are unique qualities to family law, but the question is whether family law is so different that distinct professional rules are required for lawyers. In . . . [more]

Should lawyers be marriage counsellors? The Divorce Act seems to think so. For reasons discussed below, I’m less sure.

The Divorce Act—the federal legislation that governs divorce in Canada— has been the subject of increased attention because of significant amendments made in 2021. On Slaw, for example, Deanne Sowter published two thoughtful columns addressing what these amendments mean for family law lawyers (see here and here). Not having practiced or taught family law, I wasn’t familiar with the details of the legislation, but was interested in the impacts of the 2021 amendments on lawyers. Before I could consider . . . [more]

For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.

Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario . . . [more]

In April, former Alberta Justice Minister Jonathan Denis was found in contempt of court because a letter sent on his behalf threatened to bring an action for defamation against a plaintiff who was in the middle of giving testimony in a civil trial.

The plaintiff, Dr. Sauvageau, was Alberta’s top forensic pathologist from 2011-2014, and was suing the province alleging that she had been forced out of the job because she raised concerns relating to political interference. Mr. Denis was not a defendant in the action, but was the justice minister at the time the allegations pertain to.

As reported . . . [more]

Family law has always had a reputation for being soft law, the area that lady lawyers practice, and a pink ghetto. Family law is not easy. There are upwards of 70 pieces of family law related legislation across Canada, to say nothing of the rules of court and process related legislation and skills, financial complexities, and family violence concerns. When no-fault divorce was introduced in 1968[1], lawyers did not specialize in family law. According to Constance Backhouse “most male lawyers eschewed divorce as odious, describing it as more ‘social work’ than ‘real law,’ and expressing reluctance to . . . [more]

The topic of lawyer confidentiality often yields lively discussions when teaching legal ethics to law students. Some of this engagement flows from high-profile, attention-grabbing case studies like wrongful murder convictions, buried bodies, and concealed videotapes depicting horrific crimes. Even the more routine aspects of lawyer confidentiality, however, spark good conversation. For example, most students are curious about how common behaviours, like working outside the office, sending emails or using social media, may give rise to inadvertent confidentiality breaches.

Another topic that often interests students is whether lawyers can talk about client matters with spouses or significant others. . . . [more]

Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.

JM brings their dispute to that body. JM wants to be heard, by someone who is competent and . . . [more]