The Faculty of Law at Queen’s University has established an Annual Lecture series in Legal Ethics and Professionalism. The program enjoys the generous sponsorship of McCarthy Tétrault LLP. This year’s Annual Lecture is the 1st of a series that will highlight the importance of legal ethics and professionalism in law and amongst all legal professionals.
Our inaugural speaker, for the 2015 Annual Lecture, is former Ontario Court of Appeal Justice, the Honourable Stephen Goudge, Q.C.. On Monday January 26th, at 1 pm, Justice Goudge will speak at Queen’s Law about the intersection between legal ethics and professionalism and the respective roles of the judiciary, lawyers and others, including Law Societies. The event has been accredited for 1.5 hours of professionalism CPD by the Law Society of Upper Canada.
Alice Woolley posted to SLAW on December 29, 2014
Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct. Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)). They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).
How difficult can this be? Quite, according to some recent media reports. While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting? And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?
By Elaine Craig and posted to SSRN October, 2014
Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse.
The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations regarding the commercial expression engaged in by this subset of the criminal defence bar. The first pertains to the parameters of ethical advertising by criminal defence lawyers who practice sexual assault law. A significant subset of lawyers who advertise legal representation services to individuals accused of sexual offences engage in commercial expression that appears to be inconsistent with the limits and guidelines specified in their professional codes of conduct. The study produced a second observation. Examination of these websites offers a window into the narratives about sexual assault that some defence lawyers construct for their clients, and perhaps also the perspectives about sexual assault held by defence lawyers themselves.
By:David Tanovich Published on the Star Thu Nov 06 2014
As a law professor and one who teaches legal ethics, one of the most troubling parts of the Jian Ghomeshi story
for me is the question of the ethics of the civil lawsuit
filed by his lawyers against the CBC for a staggering $55 million.
There are serious systemic problems in our justice system surrounding the treatment of sexual assault complainants. There is a culture of intimidation, denial and blaming by police, lawyers, judges and juries that plays a significant role in explaining why so many women do not report their assault and why there are more acquittals in sexual assault cases than for any other offence.
In my view, lawyers have played a significant role in the silencing of sexual assault. Anyone familiar with the criminal justice system will tell you, if they are honest, that lawyers appear willing to be more zealous in defending a client charged with sexual assault than for any other offence. Indeed, one prominent Ottawa lawyer once told a group of young budding lawyers that their role in cross-examining a sexual assault complaint is to “whack the complainant … if you destroy the complainant … you destroy the head … you’ve got to attack the complainant hard with all you’ve got.” More recently, a senior member of the bar told a group of lawyers that their job was to “kill” the complainant in cross-examination.
Posted to ABlawg on November 3, 2014 by Alice Woolley By: Alice Woolley
The recent scandal surrounding Jian Ghomeshi’s dismissal from the CBC, and the sexual assault allegations relating to that dismissal, have had a polarizing impact on Canadian discussion about sexual assault. First, this comment outlines the legal framework surrounding the sexual assault allegations against Mr. Ghomeshi to clarify what is relevant to the adjudication of those allegations, and what is not. Second, this comment seeks to respond to the polarizing conversation on this issue and argue for a middle ground which preserves the presumption of innocence while simultaneously demanding greater support for the victims of sexual assault.
Posted to SLAW September 30, 2014
The intersection of legal ethics and technological competency has been a recurring theme in Slaw and other forums for a number of years (see, for example, here, here, and here).
Exactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves (for discussion of what minimum tech standards might look like, see Mitch Kowalski’s and Omar Ha-Redeye’s previous Slaw posts here and here). There is a growing consensus, however, that all lawyers require some level of technological competence in order to meet their professional obligations.
But how do we make universal technological competence a reality? I have previouslysuggested that law societies consider amending codes of conduct to add an affirmative duty on lawyers to understand the benefits and risks of available technologies relevant to the modern practice of law. Although professional rules can be effective in disciplining mal-intentioned or underperforming lawyers, they also are limited in their reach. One major constraint is that rules address problems on an after-the-fact basis rather than preventing problems before they occur (for further discussion, see here).
Barrett B Schitka, University of Calgary – Faculty of Law; University of Houston Law Center
September 25, 2014 McGill Law Journal, Forthcoming
Conflicts of interest issues are one of the most complicated areas of the law governing lawyers that lawyers and law firms face on a day-to-day basis. These issues are further complicated when lawyers are licensed in more than one jurisdiction and become subject to multiple ethical regimes. This article investigates what rules and duties are applicable to lawyers licensed in multiple jurisdictions, and what solutions are available to the lawyer when the law governing lawyers from different jurisdictions diverge or conflict. Through a discussion of the Canadian and U.S. rules on conflicts of interest, this article advocates for a two-step “proper law” approach to determine which jurisdiction’s ethical rules should be applied.
Full paper on SSRN
Quick Reference Tool
On October 1, amendments to the Rules of Professional Conduct and the Paralegal
Rules of Conduct come into effect. A quick reference tool and other step-by-step resources are available to assist lawyers and paralegals in complying with the amended rules.
Posted to SLAW September 24, 2014
This summer I again provided the Federation of Law Societies with the syllabus for my legal ethics course. The Federation requested the syllabus for, presumably, the purpose of verifying that the University of Calgary’s course complies with the Ethics and Professionalism Competency as set out in Table B of the Federation’s Implementation Report for the Approved Law Degree. As it did the past two summers fulfilling the Federation’s request left me feeling both uneasy and uncertain.
Uncertain because I am not sure what the Federation wants to do with the syllabus. Are they simply ascertaining that it is a stand-alone course on professional responsibility? Is this just something to let them demonstrate that they really are reviewing those programs they approve? Or are they going to review it more substantively to see if it addresses the broad variety of topics set out in Table B (noted below, and here)? Will they tell me if they do not think I am teaching the right topics? Will they go beyond the syllabus to see what I am actually teaching in various areas? And – ultimately – is the status of our degree as approved at stake as a result of what my syllabus contains? How much freedom do I still have?
Posted to SLAW September 17, 2014
It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.
This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].