The CBA Ethics and Professional Responsibility Committee just recently released an update of its 2008 Guidelines for Practicing Ethically with New Information Technologies.
Author Archives: amysalyzyn
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.
Commentary: New Brunswick Real Estate Association v. Estabrooks, 2014 NBCA 48
By Stewart McKelvey
http://canliiconnects.org/en/summaries/29119
Conclusion:
“The majority decision in Estabrooks will be a good precedent for professional regulatory bodies sued for malicious prosecution based on disciplinary proceedings that turned out to be unfounded – and for counsel and litigants urging a cautious approach to the expansion of any contested tort. But as the dissent points out, there is now a conflict in the Canadian case law on malicious prosecution. It might take a trip to the Supreme Court of Canada to settle the dispute.”
Composition of the Inquiry Committee established in regard to the Honourable Michel Déziel
Ottawa, 11 August 2014 – The Canadian Judicial Council announced today the composition of the Inquiry Committee established to review the conduct of Justice Michel Déziel.
The Inquiry Committee is comprised of three members: two Chief Justices appointed by the Canadian Judicial Council and one lawyer appointed by the Minister of Justice. The members are: the Honourable Ernest Drapeau, First Vice-chair of Council and Chief Justice of New Brunswick (Chairperson); the Honourable Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba; Mr René Basque, Q.C. of the law firm Actus in New Brunswick.
Ms Suzanne Gagné of the law firm Létourneau Gagné in Québec City has been appointed Independent Counsel in accordance with the Council’s Bylaws. Her mandate is to present the case to the Inquiry Committee, in the public interest.
Under the Judges Act, the Inquiry Committee is deemed to be a Superior Court. The Committee will decide, in the coming weeks, when to hear this matter. Inquiry Committee hearings are normally held in public, although private hearings are possible if required in the public interest and the due administration of justice. The Committee will decide on the scope of its inquiry.
The mandate of the Inquiry Committee is to review all the issues and submit a report to the Canadian Judicial Council, presenting its findings and conclusions on whether or not a recommendation should be made for the removal of the judge from office. The Council will then make a recommendation to the Minister of Justice regarding the judge’s ability to remain in office.
Information about the Council, including the process for public inquiries, can be found on the Council’s website at www.cjc-ccm.gc.ca.
Contact: Norman Sabourin Executive Director and Senior General Counsel (613) 288-1566 ext 313
Composition du comité d’enquête établi au sujet de l’honorable Michel Déziel
Ottawa, le 11 août 2014 – Le Conseil canadien de la magistrature a dévoilé aujourd’hui les noms des membres du comité d’enquête mis en place pour examiner la conduite du juge Michel Déziel.
Le comité d’enquête est composé de trois membres: deux juges en chef nommés par le Conseil canadien de la magistrature et un avocat nommé par le ministre de la Justice. Les membres sont: l’honorable Ernest Drapeau, premier vice-président du Conseil et juge en chef du Nouveau-Brunswick (président), l’honorable Glenn D. Joyal, juge en chef de la Cour du Banc de la Reine du Manitoba et Me René Basque, c.r. du cabinet Actus au Nouveau-Brunswick.
Me Suzanne Gagné, du cabinet Létourneau Gagné à Québec, a été nommée avocate indépendante. Conformément au règlement du Conseil, elle a pour mandat de présenter l’affaire au Comité d’enquête, dans l’intérêt public.
En vertu de la Loi sur les juges, le comité d’enquête est réputé être une Cour supérieure. Le Comité agit de façon indépendante et devra décider, au cours des prochaines semaines, quand il entendra cette affaire. Les rencontres du Comité d’enquête se déroulent normalement en public, bien que des audiences privées sont possibles si l’intérêt public et la bonne administration de la justice le requièrent. Le Comité décidera de la portée de son enquête.
Le mandat du Comité d’enquête est de revoir l’ensemble de l’affaire afin de présenter un rapport au Conseil canadien de la magistrature sur ses conclusions quant à savoir si une recommandation devrait ou non être faite pour relever le juge de ses fonctions. Le Conseil présentera ensuite une recommandation au ministre de la Justice en ce qui concerne l’aptitude du juge à remplir ses fonctions.
Des renseignements sur le Conseil, y compris le processus d’enquêtes publiques, peuvent être consultés sur le site Web du Conseil à www.cjc-ccm.gc.ca.
Personne-ressource : Norman Sabourin Directeur exécutif et avocat général principal (613) 288-1566 poste 313
R Mendleson and R Brennan, Judging of judges should be public: Opposition critics
Critics at Queen’s Park are calling on the province to lift the veil of secrecy that keeps the public in the dark about investigations into complaints against judges.
“There is something suspicious about the whole process when there isn’t even a report put out to the public,” interim Progressive Conservative Leader Jim Wilson said Monday. “I think the government should be held accountable.”
Wilson’s comments come after a Star investigation into a complaint against a Toronto judge who had been repeatedly admonished, and the system that keeps the vast majority of such complaints under lock and key.
Confidential documents, provided to the Star by an unknown source, detailed how the complaint was handled in secret, and the case closed.
According to the Ontario Judicial Council, which probes complaints against judges, there is a “general order,” permitted under Ontario law, banning the publication of any documents and information relating to complaints that don’t result in a public hearing.
The rest of the Toronto Star story HERE
A Dodek: Why won’t MacKay release his legal advice on prostitution?
ADAM DODEK Contributed to The Globe and Mail
Published Tuesday, Jul. 08 2014, 12:34 PM EDT
Last updated Tuesday, Jul. 08 2014, 12:42 PM EDT
Minister of Justice Peter MacKay has confidently asserted two things about Bill C-36, the Government’s new proposed prostitution law: that it will certainly be challenged in the courts and that it is constitutional. Mr. MacKay is undoubtedly correct that there will another round in the legal battle over the country’s prostitution laws that will make its way back to the Supreme Court. Until then, we will not know if he is correct about the bill’s constitutionality.
Mr. MacKay can, however, back up his second claim by showing Members of Parliament and Canadians the legal advice that supports his confident assertion. And he should.
Canadian governments have remained steadfast in their refusal to publicly reveal the legal advice that forms the basis for many of their decisions. Governments love to rely on solicitor-client privilege – the protection afforded by the law to confidential communications between a client and lawyer. The Supreme Court of Canada has recognized solicitor-client privilege as a fundamental legal and civil right that enjoys constitutional protection in certain circumstances. For reasons that I have argued elsewhere, it does not make a lot of sense to talk about the government enjoying such constitutional protection.
For the rest of the post, click HERE
G Hamilton: Judge accused of buying cocaine as a lawyer attempts to halt disciplinary procedure before hearings even begin
National Post article
Graeme Hamilton
Thursday, Jul. 10, 2014
MONTREAL — A Quebec Superior Court judge facing possible removal from the bench over allegations he bought cocaine during his days as a lawyer has gone to court in an attempt to halt a disciplinary procedure before hearings are even held.
In an application for judicial review filed with Federal Court, Justice Michel Girouard is challenging the Canadian Judicial Council’s powers to investigate complaints against judges.
Among other arguments, Judge Girouard is saying the council has no business examining his behaviour when he was practising law before his 2010 appointment to the bench. “Only the provincial authority has the jurisdiction to investigate and draw conclusions on the conduct of a lawyer,” his lawyers write in the application.
The Council, whose members include Supreme Court of Canada Chief Justice Beverley McLachlin and all superior court chief and associate chief justices, announced in February that it would hold a public inquiry into Judge Girouard’s conduct.
“After a careful review of the matter, the members of the [review] panel decided that the issues in question are serious enough that they could warrant the judge’s removal from office,” the council said at the time. A three-person inquiry committee was named last month, but proceedings are on hold until the Federal Court case is resolved.
The rest of the story HERE
Contract on toilet paper slammed by Saskatchewan Law Society
Lawyer was unhappy with being asked to furnish a retainer agreement
CBC News Posted: Jun 24, 2014 5:30 AM CT Last Updated: Jun 24, 2014 5:30 AM CT
A Saskatchewan lawyer who submitted a piece of toilet paper as proof of a contract with his client has been sharply rebuked by the province’s law society.
In a decision recently published to an online legal database, Ron Cherkewich, from Prince Albert, Sask., has been ordered to pay a fine and investigative costs totaling $10,500 for the ill-advised stunt, which the law society said amounted to conduct unbecoming a lawyer.
According to the decision, Cherkewich’s behaviour — described as “rude and provocative” — took place in 2011 while he was representing a client who had filed a claim under Canada’s Indian Residential Schools Settlement agreement.
R N M Graham: Legal Ethics: Theories, Cases, and Professional Regulation (3rd Edition)
Randal N. M. Graham’s casebook: Legal Ethics: Theories, Caes, and Professional Regulation (Emond Montgomery Publications, 2014) available soon.
Order through Emond Montgomery Publications
From the website:
Legal Ethics: Theories, Cases, and Professional Regulation, 3rd Edition is the only Canadian legal ethics text to focus specifically upon the approach applied by regulators in practice, presenting lawyers’ ethical obligations in direct relation to the concepts that are of greatest concern to regulators. This casebook delivers a structured and rational assessment of ethical decision-making by tying it to predictable and measurable costs and benefits, and examining the impact of decision outcomes on the social functions of the legal system.
The third edition of Legal Ethics: Theories, Cases, and Professional Regulation has been adapted to reference the Federation of Law Societies’ Model Code of Professional Conduct as its primary source of ethical rules, so that it may apply to all Canadian jurisdictions. It features an expanded section on the Good Character requirement that applies to students on their admission to the bar, as well as a new section on Civility, and recent developments in the expanding Duty of Loyalty. The regulatory approach presented by the author demystifies nebulous notions of “ethics” and “morality” by examining the efficient functioning of the legal system, the effect of rules on self-interested actors, the goals of deterrence and compensation, and the implications of a self-governing profession.
Throughout this edition of Legal Ethics: Theories, Cases, and Professional Regulation, surprising theoretical situations are introduced to illuminate the intricacies of legal ethics and demonstrate how they are applied in practice. Extensive sample questions, illustrative scenarios, and hypothetical case studies will provoke lively classroom discussion and thoughtful analysis of the ethical principles being considered. This casebook delivers a thorough and methodical account of legal ethics that will equip students with the insight and analytical capacity to apply their knowledge in a wide variety of practical and professional contexts.
Workshop: Ethics and Civility in the Practice of Law
A 1/2 day program on Ethics and Civility in the Practice of Law for the Canadian Institute for the Administration of Justice. The program will be held in Edmonton at the Sutton Place Hotel on September 26, 2014 from 8:30am -12:30pm.
From the flyer:
A half-day, hands-on, practical seminar addressing some of the more intractable ethical issues lawyers, judges, and tribunal members must deal with in practice: Do the courts, and law societies have a role in regulating civility and, if so, how do their roles differ? What role is there for professional bar associations? What unique ethical and civility issues arise in the context of administrative proceedings? What special ethical and civility issues apply to and arise for in-house and government lawyers?
Canadian Association for Legal Ethics / Association canadienne pour l’éthique juridique 