Adam Dodek and Michael Morris on Ethical Challenges of Government Lawyers

A McGill Law Journal podcast on this topic can be found here:


“Despite a significant place in the legal profession, little attention has been given to the unique ethical challenges of the government lawyer. We spoke with Professor Adam Dodek (University of Ottawa) and Michael Morris (Department of Justice) on their efforts to change that.”

Lawyers urged to embrace in-house ethics counsel

Posted to Law Times, January 27, 2014

Law Times article mentions Stephen Pitel’s (Western) comments on in-house ethics counsel, and Amy Salyzyn’s (Ottawa, Yale) comments on regulating law firms.  Comments were made at the recent Conference on Ethical Issues in the Law Firm Setting held by the University of Toronto Program on Ethics in Law and Business.

For the full story, click HERE.


Moore v. Getahun, 2014 ONSC 237 (CanLII)

An important/noteworthy decision on what is appropriate conduct between lawyers and experts retained to prepare reports was released earlier this week – Moore v. Getahun, 2014 ONSC 237 (CanLII), <>
Notable excerpts include: 

[50]           For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

[51]           If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

[52]           I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.

Vesselin Popovski (ed): International Rule of Law and Professional Ethics

You will receive a 20% discount if you order with the information found in the PDF attached.

International Rule of Law and Professional Ethics Feb 2014

This book examines the interesting and relatively understudied area of the evolution of the international rule of law and the role of professional ethics. With chapters contributed by leading names in international law, this book offers analysis and recommends policies to strengthen the rule of law at international level to meet a major global governance demand in ensuring equity, justice, stability and consistency in international affairs.


  • Introduction; From domestic to international rule of law: a long and unfinished journey, Vesselin Popovski;
  • ‘Unqualified human good’ or a bit of ‘ruling-class chatter’? The rule of law at the national and international level, Simon Chesterman;
  • ‘Thin theories’ of the domestic and international rule of law, Charles Sampford; Reflections on the rule of law: its scope and significance for partners in development, John Barker;
  • What is ‘international impartiality’?, Frédéric Mégret;
  • Professions without borders: global ethics and the international rule of law, Charles Sampford;
  • International civil service ethics, professionalism and the rule of law, Lorne Sossin and Vasuda Sinha;
  • International rule of law? Ethics and impartiality of legal professionals in international criminal tribunals, Chandra Lekha Sriram;
  • Judicial ethics at the international criminal tribunals, William Schabas;
  • Conclusion, Vesselin Popovski;
  • Index.

DOJ: Values and Ethics

The Department of Justice has published a Values and Ethics code on their website HERE.

Chapter I – Values


The Government of Canada is committed to ensuring that the federal public sector[1] remains professional, non-partisan and ethical, and worthy of the trust and respect of Canadians. As public servants, we contribute to good governance, to democracy and to the well-being of Canadian society. We are committed to respecting the law and to upholding the highest standards of integrity and fairness.

In accordance with section 6 of the Public Servants Disclosure Protection Act (PSDPA), the Values and Ethics Code of the Department of Justice (the Code) sets out the values and ethics that guide public servants at the Department in all their professional activities. It also provides a set of guidelines and principles to support ethical behaviour and decision making for all public servants. Established in consultation with the Department’s employees and bargaining agents, it is our common guide.

The public servants at the Department are proud to work together, drawing on the richness of its diverse staff. As a group, we are conscious of the fact that Canadians expect transparency and respect for the principle of accountability from public authorities at all levels and that this has an impact on their work.

This firm commitment to the values and ethics enshrined in the Code will allow us to carry out the mandate of the Department and build a healthy and productive work environment that fosters innovation, while at the same time meeting the high expectations of Canadians. This is our collective commitment, and it is our individual responsibility.

Table of Contents

For the full document, go to their website HERE.

A Woolley: “Top Ten Canadian Legal Ethics Stories – 2013”

Posted to ABlawg on January 3, 2014

Once again John Steele at Legal Ethics Forum has compiled his list of the top ten ethics stories of 2013 (here). As was the case last year, his list has inspired me to think about the top ten ethics stories in Canada (2012 is here). On reviewing last year’s list it is clear that a number of the stories of significance in 2012 remained important this year. As well, legal ethics in Canada continues to develop as a matter of practical and intellectual significance, with practitioners, judges, regulators and academics paying attention to the conduct and regulation of lawyers and judges.

Thanks to Professor Annalise Acorn of the University of Alberta, and Malcolm Mercer of McCarthy Tetrault, for their assistance in compiling this list.

For the full list, links and opportunity to comment, click HERE.

S Kierstead and E Abner: “Learning Professionalism in Practice”

Shelley M. Kierstead, York University – Osgoode Hall Law School and Erika Abner, University of Toronto – Postgraduate Medical Education Office

2013 Osgoode CLPE Research Paper No. 59/203


This paper describes exploratory research into learning professionalism, ethics and civility in the legal workplace. We begin by setting out the issue as described by scholars, regulators, insurers, courts, and practicing lawyers, then examine the literature on developing a professional identity through learning at work. We employed a focus group method to gather data on the issues that practicing lawyers experience during their working day, as well as how they learn to define, identify, and manage these professionalism and ethical issues.

Number of Pages in PDF File: 89

To download the paper off SSRN, click HERE


A Woolley “What Do Bad Exam Answers and the Lawyers of the PMO (Maybe) Have in Common?”

Posted to SLAW Dec 30 2013.  For the post and comments on the website, click HERE

We don’t know whether the lawyers who worked in the PMO during the Duffy debacle – Nigel Wright and Benjamin Perrin – engaged in unlawful or unethical conduct. What we do know, though, is that two men with stellar public reputations, one (Perrin) described as a “hero” by Hillary Clinton (here) and the other (Wright) as a man “of good faith, of competence, with high ethical standards” by Jason Kenney (here), became embroiled in a public relations debacle – investigated by the RCMP, disavowed by the Prime Minister and publicly castigated for their potential involvement in the payment of $90,000 to Senator Duffy. How does that happen? How might an honourable and decent person, with good moral judgment in other aspects of his life, as well as legal knowledge and training, make a decision that is legally and morally suspect?

My last few days grading student examinations have given me some perspective on this question. The administrative law examination we assigned had three questions, two very typical of the sorts of questions that students might have expected to see given past exams and the problems we had done in class, and one that was structurally quite different. The nature of the administrative decision raised by the problem was unusual, and the context in which the decision was made even more so.

The answers to the unexpected question were, in a number cases, significantly – and strangely – wrong. The students made statements about the relationship between the legislative, executive and judicial branches that were fundamentally off-base and that I know, given their other answers and the many conversations I have had with them, they do not actually think are true. Yet somehow when answering the question these students lost access to the knowledge that they possess about the functioning of the legal system and the ability to apply administrative law concepts with which, as demonstrated by their other answers, they were relatively familiar.

Why? The problem for these students may have arisen from the cognitive weaknesses to which humans are susceptible. As human beings, we are simply unable to pay attention to or process everything that surrounds us, or all the information we receive. We use heuristics to make decisions, rather than identifying and rationally assessing all of the information available to us. And, when facing something unfamiliar, particularly in an area where we lack expertise, we can often miss the obvious.

Christopher Chabris and Daniel Simons famously documented this last point in their “invisible gorilla experiment”. In the experiment participants were shown a one-minute video of people wearing white and black shirts, passing basketballs. Participants were asked to count how many times the people wearing white passed the ball. About 30 seconds into the video, a woman wearing a gorilla suit walked in front of the players, beat her chest, and walked off – being on screen for about 9 second (you can see the video here). Despite this relatively dramatic incursion onto the screen, about 50% of the participants did not see the gorilla. They did not see the gorilla because of selective attention – the attention they paid to counting the passes prevented them from seeing anything else, even something strange and obvious. In a recent variation on this experiment, researchers inserted an

image of a gorilla into a CT scan of a pair of lungs; 83% of radiologists viewing the scans did not see the gorilla (“Gorillas in the Lung”)

While the problem for my students may have arisen from any number of cognitive gaps, my guess is the main issue was one of selective attention. The unfamiliar context, and their attempt to decipher how administrative law applied to that context, led them to miss obvious aspects of what they were looking at. They were so focused on trying to figure out how what they saw could be fit into their administrative law framework, that they did not really see what they were looking at.

Why, though, did some students not suffer from this problem? Likely because their grasp of the administrative law concepts was sufficiently good to allow them to broaden the focus of their attention, and to be less disorientated by an unfamiliar fact situation. In later iterations of the invisible gorilla experiment, researchers observed that experienced basketball players were more likely to notice the gorilla, presumably because counting basketball passes required less attention for them than for someone without that experience.

And what about Wright and Perrin? As noted at the outset, neither the precise legal or moral quality of their actions, nor even their involvement (in the case of Perrin in particular), is clear. But assume for the moment that their conduct was unethical or unlawful. How could that happen? My guess is that the circumstances of the PMO would create a similar blindness to the actual quality and significance of the acts in which they were engaged. The focus on the political – on the effect for the Conservative Party and the PMO from Duffy’s profligate expenditures – made the legal and moral ramifications of their handling of the situation invisible. Wright and Perrin would want to solve the political problem, and so would not be able to see that the problem also had legal and ethical dimensions. It wasn’t what was salient, and they couldn’t see it.

Under this hypothesis, it would also be significant that neither Perrin nor Wright have spent a significant part of their careers in legal practice. Wright was a lawyer for seven years at Davies, Ward Phillips and Vineberg, but he spent many more years as a businessman, and left legal practice a long time ago (his career is discussed here). Even his role in the PMO was not a legal one. Perrin does not appear to have practiced law at all (his UBC bio is here). That lack of recent (or any) practice experience, or current expertise in legal decision-making, may have further obscured the legal salience of the issues with which they were dealing. Neither Wright nor Perrin would have routinized “thinking like a lawyer” in a way that helped them overcome the problem of selective attention. And, as a consequence, good men may have acted badly.

This column has been largely speculative. But to the extent it contains an element of truth, it suggests the significance for lawyers who wish to avoid ethical trouble of ensuring that they are in a position where the legal and ethical significance of situations will not be obscured. Modern law firm approaches to conflicts of interest – where the identification of such conflicts is systemized – is an example of how that can be done. But in other areas of ethical significance, it may be that lawyers face risks they do not even perceive.