(2013) 26 Canadian Journal of Administrative Law and Practice

The recent volume of the Canadian Journal of Administrative Law and Practice (26(2)) is legal ethics orientated.  In addition to Alice Woolley’s piece on good character there is an article by Simon Ruel, “What Privileges Arise in the Administrative Context, and When” (at 141) and Michael Morris and Sandra Nishikawa have an article “The Orphans of Legal Ethics: Why government lawyers are different – and how we protect and promote that difference in service of the rule of law and the public interest” (at 171).

A Salyzyn: What if We Didn’t Wait? Promoting Ethical Infrastructure in Canadian Law Firms

Amy Salyzyn posted to SLAW on July 25, 2013

Conventional models of regulating lawyer conduct tend to be largely reactive. In most cases, law society disciplinary regimes respond after a complaint is filed alleging that a lawyer has engaged in some kind of professional misconduct. One obvious shortcoming to this approach is that concerns are addressed only after they become problems. For clients and affected third parties, this type of “after the fact” regulation often provides little solace: lawyer discipline can be a lengthy, time-consuming process that yields little in the way of meaningful relief. Obviously, it would be preferable if the problem never occurred in the first place.

So, what if we didn’t wait for problems to occur? What if problematic lawyer conduct could be prevented? What if we had a more proactive regulatory regime for governing the ethical conduct of lawyers?

To help us think through answers to these questions, we can, once again, look to encouraging developments in other jurisdictions.

For the rest of the post, and comments, go to the SLAW posting HERE

M Love: Donation to charity gets Manitoba Crown fired

Myron Love posted the story on Legal Feeds (the blog of Canadian Lawyer and Law Times), posted July 16, 2013

t may be a case that is unique in legal annals in Canada.

Sean Brennan, a Manitoba Crown prosecutor since 2000, was fired in early July after he reported a situation in which a leading Winnipeg aerospace company made a substantial donation to a charity dear to Brennan’s heart at about the same time that Brennan dropped charges against the company charged with failing to follow required safety guidelines — which resulted in a workplace accident.

“It’s an unusual case,” says Allan Fineblit, CEO of the Law Society of Manitoba. “This was not a situation where the lawyer personally benefitted. The money went to a good cause.”

Professor Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, however doesn’t see Brennan’s actions as differing substantially from any other “garden variety” conflict-of-interest situation despite the former prosecutor not gaining anything personally.

For the rest of the story on Law Feeds, click HERE.

Legal Ethics Volume 16 Issue 1

There continues to be strong Canadian representation and content in the latest edition of the journal “Legal Ethics” published by Hart Publishing in Oxford.

Here is a link to the Table of Contents http://www.ingentaconnect.com/content/hart/legeth/2013/00000016/00000001;jsessionid=cgiqjk09r7q1f.alexandra

It features articles by Canadians/listserv members:

“The Past, Present . . . and Future (?) of Judicial Ethics Education in Canada” by Richard Devlin (Schulich), C. Adele Kent and Susan Lightstone

“The Not Now Habit: Procrastination, Legal Ethics and Legal Education” by Annalise Acorn (Alberta) and Jason Buttuls

“John Rambo v. Atticus Finch: Gender, Diversity and Civility” by Amy Salyzyn (Yale JSD / uOttawa Sessional Professional)

Correspondent’s Report from Canada: Foreclosures, Freemen, Foreign Law Schools and the Continuing Search for Meaningful Access to Justice” Amy Salyzn (*Note all Correspondents’ Reprots are available free online).

Note that Alice Woolley is the Book Review Editor for Legal Ethics.

Members of the Advisory Board include Brent Cotter, Richard Devlin, Adam Dodek and Lorne Sossin.

Job Posting – Melbourne Law School

Melbourne Law School

Melbourne Law School, Australia’s first all-graduate law faculty, seeks new colleagues at levels B to E who share our commitment to a highly collegial and research-intensive professional life.

We specifically encourage applications from scholars researching and teaching in the fields of civil procedure/dispute resolution, competition law, contract and remedies, employment law, intellectual property, legal ethics, property law and public law. Continue reading

A Woolley: Supreme Court of Canada on Conflict of Interest

Our own Alice Woolley wrote a comment for the Legal Ethics Forum on Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.

Today the Supreme Court of Canada issued its judgment in Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.  The decision does not break new ground, but it does clarify the rules governing conflicts between two current clients of a law firm – i.e., that a law firm may not act for clients with directly adverse legal interests, even in matters that are unrelated, without the client’s consent.  That “bright line” rule had been the subject of debate and argument amongst the Canadian legal community, with the Canadian Bar Association arguing that the bright line should only create a rebuttable presumption.  The Supreme Court held that the rule was still in place.  At the same time, they arguably qualified its application insofar as they made it clear that “the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” (para 37).  In addition, they were clear that disqualification of the law firm is  not an automatic response to a finding of conflicts.  Disqualification is required where there is a risk of misuse of confidential information, to avoid the risk of impaired representation or to protect the administration of justice.  When the last of those is at stake the Court may take into account “(i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.” (para. 65)

For the rest of her post, click HERE

For the judgment, click HERE

M Mercer: The Access to Clothing Crisis

Malcolm Mercer just posted a piece on the SLAW website.

(Before you query its relevance for the CALE website, read it – it is not really about access to clothing … )

Access to Clothing[1] is a complex issue that seems almost impossible to effectively address. Some consider it one of our most pressing issues[2]. The well-off continue to be able to afford appropriate clothing for all occasions. The least fortunate amongst us are able to access free or subsidized clothing to be worn during the most important events in their lives. The middle class cannot afford to purchase clothing at all.

To the great discomfort of businesses, restaurants and hosts and hostesses everywhere, most members of the middle-class have given up wearing purchased clothes entirely. Many people now wear home-made clothing that is barely adequate[3] for most occasions. Public policy analysts refer to this group as the self-clothed. Many other people eschew clothing entirely. These are the unclothed.

For the rest of the article, click HERE.