A Salyzyn: Tackling Technology

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).

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B Schitka: Private International Law Implications in Conflicts of Interest for Lawyers Licensed in Multiple Countries

Barrett B Schitka, University of Calgary – Faculty of Law; University of Houston Law Center

September 25, 2014 McGill Law Journal, Forthcoming

Abstract:
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

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LSUC: Quick Reference Tool for Rules of Professional Conduct

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.

More information

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A Woolley: Tweeter or Twitter? Teaching a Federation Approved Legal Ethics Course

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?

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M Mercer: Independence and Self-Regulation

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].

More … 

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Legal Ethics Special Issue: GENDER, CARE, LAW AND THE PROFESSION

LEGAL ETHICS Volume 17 . Part 2 . 2014 

Hart Publishing is pleased to let you know that Volume 17. Part 2 of Legal Ethics is now published.  3 Articles with Canadian content.

ONLINE ACCESS  To access this issue online, read the abstracts and purchase individual papers please click here

CONTENT

EDITORIAL

Free to view – please click here

ARTICLES

Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms

Margaret Thornton

Abstract: Although women comprise almost 50 per cent of the practising legal profession in Australia and elsewhere, numerosity is insufficient to overcome the ‘otherness’ of the feminine in corporate law firms. Despite measures to recognise the ethic of a balanced life for those with caring responsibilities, these initiatives are undermined by the contemporary imperative in favour of competition. This article argues that there is a hypermasculinist sub-text invoked by the media reporting of a flurry of mergers between super-élite London-based global law firms and Australian firms with an eye to expansion in the Asia-Pacific. It is suggested that the incommensurability of the discourses of flexible work and hypercompetition symbolically revives and sustains the masculinity of super-élite law firms as the gender tipping point draws nigh. To illustrate the thesis, the representation of the two discourses in the print media between 2011 and 2012 are considered, drawing primarily on The Times (London) and The Australian(Sydney).  Continue reading

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D Wiseman: Alternative Business Structures and Access to Justice

Posted to SLAW on August 28, 2014.  Full post HERE

The Canadian legal profession is currently engaged in a much-needed debate about the future of legal services in general and whether to allow the use of so-called alternative business structures (ABSs) more particularly. Thankfully, the issue of access to justice is figuring prominently in the general debate, as evidenced by the recently released CBA Legal Futures report and the ongoing work of the Action Committee on Access to Justice. Beyond that, the potential for ABSs to improve access to justice is being put forward as a key reason for allowing them, as can be seen in Slaw columns of Malcolm Mercer and in the work of the Law Society of Upper Canada’sWorking Group on ABSs that he co-chairs. However, in relation to the ABS debate, it is necessary to ask: access to justice for whom? The answer is: mostly, the middle class – which, in my view, is good, but not quite good enough.

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CALE Conference October 23 – 25: Last Reminder

The CALE conference is scheduled for October 23-25, 2014 in London, Ontario.  On the evening of Oct 23 there will be dinner and a social event at the Ivey Spencer Leadership Centre and then on Oct 24 we start in the morning with a shuttle over to Western Law.  The conference ends mid-afternoon on Oct 25.  On Oct 24 there will be a dinner sponsored by Lenczner Slaght Royce Smith Griffin LLP followed by a speech by Ian Binnie.  Other sponsors of elements of the conference include Emond Montgomery Publications and the Federation of Law Societies of Canada.

There is no registration fee.  We will be tracking attendees based on your booking of the accommodation (for which you are responsible, logistically and financially) at the Centre or based on you telling us that you are attending but staying elsewhere.  If you are not staying at the Centre and you do not know for sure that I know you are attending, please contact Stephen Pitel at Western.

The Ivey Spencer Leadership Centre is now taking bookings.  You can make your booking over the web (https://resweb.passkey.com/go/WesternLaw) or by phone (1-888-678-6926).  

The conference will feature:

  • a session on teaching covering several issues including the “flipping” of the classroom;
    a session on regulatory developments covering several issues including the notion of principle-based regulation’ and
    three sessions on in-progress research on a wide range of legal ethics topics. 
    If you did not see the earlier calls for volunteers to present or for some reason did not respond, and are interested in presenting, please let me know because it is possible that we might be able to fit you into the program.
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CBA: Ethics and New Information Technologies

The CBA Ethics and Professional Responsibility Committee just recently released an update of its 2008 Guidelines for Practicing Ethically with New Information Technologies.

 

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A Salyzyn: Positivist Legal Ethics Theory and the Law Governing Lawyers: A Few Puzzles Worth Solving

Hofstra Law Review, Vol. 42, No. 4, 2014

Abstract:

Debates about the proper boundaries of a lawyer’s role are far from new. A fresh spin on this old debate, however, has emerged with the “positivist turn” in legal ethics theory. While in legal theory scholarship the label “positivism” carries various nuances and controversies, its use in the legal ethics context is, as a general matter, more straightforward and uniform. Broadly speaking, positivist accounts of legal ethics share a general view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.

Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same “fidelity to law” that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.

What has not been given much, if any, attention is how the law governing lawyers is different from other types of law and how this difference may be consequential for the positivist account. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter—the proper bounds of lawyer behavior—that legal ethics theory itself purports to address. As a consequence, two of the “typical” questions or challenges lobbied at positivist accounts of law—what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral terms—give rise to some outstanding questions in the case of positivist legal ethics theory. Below, some very preliminary thought is given to how these puzzles might be “solved.” Ultimately, however, the main goal of this Idea is to highlight these issues as ripe for further consideration and critique.

 

 

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