On March 30, the Supreme Court of Canada released its decision in Green v. Law Society of Manitoba with the majority agreeing with the courts below that the Law Society of Manitoba (“Law Society”) can impose rules that couple a mandatory CPD program with a possible suspension for failing to meet the program’s requirements.
Justice Abella and Justice Côté authored a dissent, holding (as described in the headnote) that: “A rule that leads to an automatic suspension for failing to attend 12 hours of continuing professional development is so far removed from ensuring the public’s confidence in lawyers that it is manifestly unjust, and therefore, unreasonable.”
This past week, Slaw.ca hosted several very interesting blogs on legal ethics written by law students. They are worth a read! Professor Adam Dodek’s introduction is excerpted below:
In a decade of teaching legal ethics, I have come to realize that students bring different and often fresh viewpoints to their analysis of ethical issues in the profession. Slaw founding Publisher Simon Fodden agreed to provide a forum for our future colleagues at the bar to share these perspectives with a wider audience. We are fortunate that his successor Steve Matthews has continued to do so.
This year seven University of Ottawa students produced interesting and provocative that will be published by Slaw over the course of this Student Week (March 27th through 31st). The issues range from how and where to learn competency, humility as an ethical value and expanding the public safety exception to confidentiality and privilege to include reporting on intimate partner violence. Other papers deal with the professional responsibility of lawyers in dealing with self-represented litigants, government lawyers as superheroes and lawyers behaving badly. And Atticus Finch and To Kill a Mockingbird. Of course. I hope you are challenged by these students as much as I was. And I hope you enjoy their writing as much as I have.
Another recent Slaw.ca column on the topic of legal ethics can be found this week, authored by CALE President Alice Woolley and on the topic of the appropriateness of judges commenting on morals and policy in their reasons.
A new column by Malcolm Mercer is now up on Slaw.ca, which explores the current policy debate in Ontario about the appropriate licensing process for lawyers and difficulties created by challenges in making accurate predictions about the supply and demand of lawyers and the self-interest inherent in a self-regulating profession.
On March 9, 2017, the Canadian Judicial Council released its Report recommending that Justice Camp be removed from office. The CJC’s press release may be found here and the full Report, here.
Following the release of this Report, Justice Camp announced that he would resign and issued an apology. More details can be found here.
This development attracted significant media coverage, including an op ed in the Globe and Mail by CALE President Alice Woolley.
At its February Convocation, the Law Society of Upper Canada voted to amend its conduct rules governing the advertising of legal services with a view to strengthening their ability to protect the public. In the Law Society’s own words, the amended rules:
- Provide detailed guidance on what awards may be used for marketing purposes. Amendments to the rules provide specific direction to the professions on the type of awards and honours that are permitted in advertising.
- Require licensees to identify in their advertising whether they are a lawyer or paralegal. This will enhance the public’s awareness of the different types of licences and help the public make a more informed choice of legal service provider.
- Prohibit advertising of second-opinion services. The Working Group found that the main purpose of second-opinion advertising was to attract already-represented clients with the intention of having the client switch lawyer or paralegal — rather than to market valuable second-opinion services. Under the new rules, second-opinion services are still permitted. The Working Group found that the public is well-informed of the right to seek a second opinion and to change lawyer or paralegal. Advertising of this service is not required.
- Make explicit that lawyers and paralegals may not advertise for work they are not licensed to do, not competent to do or do not intend to do. The amended rules provide additional guidance to lawyers and paralegals in these areas to ensure that they are fully aware of their obligations to the public.
At the same meeting, the Law Society approved a policy to cap and further regulate the fees a lawyer or paralegal may charge for referring a client to another licensee. More details from the Law Society on this change can be found here.
Link to full report is here. Public feedback is being solicited until May 15, 2017. Below is an excerpt from the Ministry of Attorney General’s press release that provides background on the report:
Improving Access to Justice for Families
Making the Family Court System Easier to Navigate
March 6, 2017 12:00 P.M.
Ontario is helping families by making it easier for them to navigate family courts and access the legal assistance they need.
Last year, Ontario and the Law Society of Upper Canada asked the Honourable Annemarie E. Bonkalo to lead a review to consider whether a broader range of service providers could deliver certain family legal services.
Ontario and the Law Society are now seeking public feedback on Justice Bonkalo’s recommendations. People can submit feedback online until May 15, 2017.
The province, together with the Law Society, plans to release an action plan by fall 2017 to address these recommendations.
In addition, Ontario has asked the federal government to support its plans to expand Unified Family Courts provincewide. Expanding these courts would streamline the family court process by ensuring Ontario families only have to go to one court to resolve their legal issues no matter where they live.
Improving access to justice for families is part of our plan to create jobs, grow the economy and help people in their everyday lives.
New scholarship from CALE member Andrew Flavelle Marton published in the Canadian Bar Review on the interesting question of whether the law society can discipline the AG.
The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion and for policy and political functions outside core policy advice and decisions. (The Attorney General for Ontario enjoys extended immunity under a statutory provision that is unique to that province.) The article then argues that the Attorney General should generally be subject to discipline to enhance the rule of law and the protection of the public. If some immunity is necessary, that immunity should require good faith.
Link to here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2889089
Message from Canadian Judicial Council:
Ottawa, 30 November 2016 –The Inquiry Committee reviewing the conduct of Justice Robin Camp has presented its report to the Canadian Judicial Council. An Overview of the Report is also available on the Council’s website.
The Inquiry Committee found that Justice Camp committed misconduct while presiding over the trial in R. v. Wagar and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge within the meaning of paragraphs 65(2)(b) and (d) of the Judges Act.
The Inquiry Committee found that during the Wagar trial Justice Camp made comments and asked questions evidencing an antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials. The Inquiry Committee also found that Justice Camp relied on discredited myths and stereotypes about women and victim-blaming during the trial and in his reasons for judgment.
The Inquiry Committee has expressed the unanimous view that a recommendation by the Council for Justice Camp’s removal is warranted.
Council will now consider the Inquiry Committee’s report, after giving Justice Camp an opportunity to make written submissions.
After considering all the issues, Council will decide on a recommendation to make to the Minister of Justice of Canada in this matter.
Information about the Council, including the process for public inquiries, can be found on the Council’s website at www.cjc-ccm.gc.ca.
New Supreme Court of Canada case addressing solicitor-client privilege.