Author Archives: amysalyzyn

M Mercer: I gotta tell ya, it’s complicated! Candour Owed to Clients

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Malcolm Mercer has posted an interesting comment on the duty of candour on the SLAW website.  For the full comment, click HERE

 

In R. v. Neil, Justice Binnie stated that the duty of candour was an aspect of the duty of loyalty. As Justice Binnie put it, an aspect of the duty of loyalty is

a duty of candour with the client on matters relevant to the retainer

The fiduciary duty of candour was the basis for the earlier decision of the Supreme Court of Canada with respect to physicians in McInerney v. MacDonald,

While not previously said quite so plainly, it has long been clear that fiduciaries owe a duty of candour to their beneficiaries. As the B.C. Court of Appeal said in Ocean City Realty Ltd. v. A & M Holdings Ltd.2 (cited with approval by the Court of Appeal for Ontario in Raso v. Dionigi3):

The obligation of the agent to make full disclosure … includes “everything known to him respecting the subject matter of the contract which would be likely to influence the conduct of his principal” (Canada Permanent Trust Co. v Christie) or, as expressed in 1 Hals., 3rd ed, p. 191, para. 443, everything which “. . would be likely to operate upon the principal’s judgment”. ..

This fiduciary duty is mirrored in the Federation of Law Societies Model Code by Rule 3.2-2 which states:

When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.

But like many other statements of professional standards that seem obviously true when stated generally, it just isn’t quite that simple in real life.

To continue reading, click HERE.

NIFTEP Workshop on Teaching Ethics

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APPLY BY JUNE 3 FOR FALL 2013 WORKSHOP ON TEACHING ETHICS 

Fellowship applications are now open for the Fall 2013 workshop of the National Institute for Teaching Ethics & Professionalism (USA). Please forward this announcement to others who may be interested.

The Fall 2013 workshop of the National Institute for Teaching Ethics and Professionalism (NIFTEP) will take place Friday, November 15 – Sunday, November 17, 2013 in Atlanta, Georgia (USA).  The workshop theme is: “Are We Making a Difference? Developing Outcome Measures to Evaluate the Effectiveness of LawSchool Efforts to Teach Ethics and Develop Professionalism.” Fellows must be able to arrive at the Atlanta airport no later than 11:00 AM on Friday, November 15 (or, if driving, at the conference facility by 12:30 pm) and commit to participate to the end of the workshop at 2:00 PM on Sunday, November 17. The Fall 2013 workshop is co-sponsored by the ABA Standing Committee on Professionalism. Former NIFTEP Fellows are welcome to apply. Continue reading →

L Terry: Trends in Global and Canadian Lawyer Regulation

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Thanks to Legal Ethics Forum for the original notice.

Laurel Terry’s paper is forthcoming in the Saskatchewan Law Review and up on SSRN for those that are interested.  Click HERE.

Abstract:

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012). Their article concluded that regulators face issues in common regarding “who” is regulated, “what” is regulated, “when” and “where” regulation occurs, “how” it occurs, and “why” it occurs.

The current article examines Canadian lawyer regulation in light of the global trends Terry, Mark, and Gordon previously identified. The current article asks whether there is evidence in Canadian lawyer regulation of these same who-what-when-where-why-and-how issues. The article concludes that these trends are indeed present in Canada and explains why it is important for Canadian lawyers, regulators, clients, and other stakeholders to be aware of these global trends. The article also addresses the issue of whether these trends matter in a jurisdiction such as Saskatchewan that is not a global financial center on the order of New York, London or Toronto. The answer the article provides is “yes” – these trends are relevant to Saskatchewan and to jurisdictions throughout the world that care about lawyer regulation.

Call for Applications: OBA Fellowships in Legal Ethics and Professionalism

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The OBA Foundation Chief Justice of Ontario Fellowships
in Legal Ethics and Professionalism

Call for Applications for 2013-14

The OBA Foundation, a charity established by the Ontario Bar Association, has assumed funding and administration of The OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism (“Fellowships”), formerly The Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism.  The OBA Foundation is now accepting applications for the two Fellowships for the 2013-14 year. 

The details of the Fellowships, including Fellowship Terms, are available at the OBA Foundation’s Fellowships Web Page.  The deadline for applications is Friday July 19, 2013. Continue reading →

The Canadian Judicial Council will review the conduct of the Honourable Michel Déziel

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Ottawa, 2 May 2013 –The Canadian Judicial Council has indicated that the Chief Justice of the Superior Court of Quebec, having learned of allegations made against the Honourable Michel Déziel during the hearings of the Commission of inquiry into the granting and administration of government contracts in the construction industry, has brought the matter to the attention of the Council. Continue reading →

I Gamble: TCC takes another look at solicitor-client privilege and common interest privilege

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By Ian Gamble and posted to the Thorsteinssons LLP website

In Imperial Tobacco Canada Limited v. The Queen, 2013 TCC 135, the Tax Court of Canada (TCC) usefully examined various elements of solicitor-client privilege and common interest privilege when it ordered the disclosure of certain documents. The judgment arose following an interim motion brought by the Crown seeking disclosure of certain internal communications relating to a cross-border investment involving the Canadian, Australian, and Italian subsidiaries of a UK parent company. The Crown was partly successful. The following useful principles emerge from the judgment, and should be kept in mind by anyone involved in significant corporate transactions. Where reasonable and appropriate, these principles should be expressly referred to on the face of the applicable communication and document.

For the list of principles, click HERE

Prof E Zweibel wins prestigious international teaching award

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For the original article and pictures on the University of Ottawa website, click HERE.

Additional note: Professor Zweibel was a pioneer in the field of teaching Alternative Dispute Resolution, piloting the first course over 15 years ago.  She was able to develop this into a mandatory course in our first year program and integrated ethics into it. 

Common Law Professor Ellen Zweibel  has been awarded the Desire2Learn Innovation Award in Teaching and Learning  for 2013, an international recognition of her exceptional dedication and genuinely innovative approaches to higher education.

“Ellen Zweibel is a true leader in her field and the University of Ottawa is fortunate to have her,” says Dr. Rose Goldstein, Vice-Principal, Research and International Relations at McGill University.  “So many students and teachers have benefited from Ellen’s innovative teaching and this award is extremely well-deserved.” Continue reading →

C Schmitz: “Supreme Court of Canada to look at issue of ex-judges representing clients in court “

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By Cristin Schmitz and posted in Lawyers Weekly, April 12, 2013.  For the original article on the Lawyers Weekly website and photos, click HERE.

Should ex-judges be forever banned from appearing as counsel in their former courts – or indeed in any courts?

Charles Huband of Winnipeg’s Taylor McCaffrey, who sat on the Manitoba Court of Appeal for 28 years before he retired in 2007, doesn’t think so. Manitoba’s Law Society takes the same position — although the opinion of legal regulators across Canada is not unanimous. Continue reading →