New scholarship from CALE member Deanne Sowter now up on SSRN!
Family law is evolving towards non-adversarial dispute resolution processes. As a result, some family lawyers are representing clients who are trying to reach settlements that recognize their interests, instead of just pursuing their legal rights. By responding to the full spectrum of client needs, lawyers are required to behave differently than they do when they are representing a client in a traditional civil litigation file. They consider the emotional and financial consequences of relationship breakdown – things that are not typically within the purview of the family law lawyer. They objectively reality check with their client, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their client as a whole person with interests that are not just legal. This paper draws on an empirical study involving focus groups with family law lawyers, to argue that the Federation of Law Societies of Canada, Model Code of Professional Conduct, needs to be updated to incorporate non-adversarial advocacy. The lawyers in the study viewed non-adversarial advocacy as being responsive to client needs, and in the interest of the client’s children. This paper draws from the study to establish what constitutes non-adversarial advocacy and then it presents a proposal for revising Rule 5 (Advocacy) of the Model Code.
Published in the Alberta Law Review, Vol 52, No 3
Abstract: The extent to which judges should be involved in fundraising for civic and charitable causes is an important issue of judicial ethics. The default principle adopted by judicial councils in Canada precludes judges from fundraising subject to only minor exceptions. Yet anecdotal evidence indicates that some Canadian judges do engage in fundraising. This raises the question of whether there should be a change to the principle so as to allow judges greater scope for fundraising activities. The aim of this article is to review the ethical principles for judicial fundraising and evaluate whether they require modifications for the modern Canadian judiciary. The authors consider several hypothetical fundraising scenarios and propose recommendations to the Canadian Judicial Council’s Ethical Principles for Judges.
Noel Semple, Assistant Professor, University of Windsor Faculty of Law, Canada
Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation’s benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.
LEGAL ETHICS Volume 17 . Part 2 . 2014
Hart Publishing is pleased to let you know that Volume 17. Part 2 of Legal Ethics is now published. 3 Articles with Canadian content.
ONLINE ACCESS To access this issue online, read the abstracts and purchase individual papers please click here
Free to view – please click here
Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms
Abstract: Although women comprise almost 50 per cent of the practising legal profession in Australia and elsewhere, numerosity is insufficient to overcome the ‘otherness’ of the feminine in corporate law firms. Despite measures to recognise the ethic of a balanced life for those with caring responsibilities, these initiatives are undermined by the contemporary imperative in favour of competition. This article argues that there is a hypermasculinist sub-text invoked by the media reporting of a flurry of mergers between super-élite London-based global law firms and Australian firms with an eye to expansion in the Asia-Pacific. It is suggested that the incommensurability of the discourses of flexible work and hypercompetition symbolically revives and sustains the masculinity of super-élite law firms as the gender tipping point draws nigh. To illustrate the thesis, the representation of the two discourses in the print media between 2011 and 2012 are considered, drawing primarily on The Times (London) and The Australian(Sydney). Continue reading
Hofstra Law Review, Vol. 42, No. 4, 2014
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.
Noah Semple’s book, Legal Services Regulation at the Crossroads: Justitia’s Legions will be published by Edward Elgar in 2015.
Updates will be posted here when we have them.
Trevor Farrow, Civil Justice, Privatization, and Democracy (University of Toronto Press, 2014)
Privatization is occurring throughout the public justice system, including courts, tribunals, and state-sanctioned private dispute resolution regimes. Driven by a widespread ethos of efficiency-based civil justice reform, privatization claims to decrease costs, increase speed, and improve access to the tools of justice. But it may also lead to procedural unfairness, power imbalances, and the breakdown of our systems of democratic governance. Civil Justice, Privatization, and Democracy demonstrates the urgent need to publicize, politicize, debate, and ultimately temper these moves towards privatized justice.
Written by Trevor C.W. Farrow, a former litigation lawyer and current Chair of the Canadian Forum on Civil Justice, Civil Justice, Privatization, and Democracy does more than just bear witness to the privatization initiatives that define how we think about and resolve almost all non-criminal disputes. It articulates the costs and benefits of these privatizing initiatives, particularly their potential negative impacts on the way we regulate ourselves in modern democracies, and it makes recommendations for future civil justice practice and reform.
Adam Dodek’s new book Solicitor-Client Privilege (Lexis Nexis, 2014) has finally been published.
Details for the book launch:
- in Ottawa in conjunction with the County of Carleton Law Association and the Cavanagh LLP Professionalism Speaker Series on Tuesday June 24th http://www.ccla-abcc.ca/events/event_details.asp?id=447009&group= Please register for this event; and
- in Toronto on Thursday, June 26th from 5:30-7:30 pm at the LSUC. The Honourable Stephen T. Goudge will provide introductory remarks and refreshments will be served. RSVP to SCPBookLaunch@gmail.com to let me know if you can make it.
Description from the LexisNexis website:
Solicitor-client privilege is the oldest and strongest legally-sanctioned safeguard protecting confidential communications. Yet, lawyers today know very little about the ways in which solicitor-client privilege can be overridden or rendered inapplicable. Most practitioners assume that all lawyer-client communications are protected – they aren’t.
Solicitor-Client Privilege is the only Canadian textbook of its kind to explain key aspects of lawyer-client confidentiality. With a Foreword written by former Supreme Court of Canada justice Ian Binnie, this distinctly Canadian law textbook analyzes the exceptions to privilege, conditions where privilege is unclear, and situations of competing interests that might bring into question the application of privilege.
Especially useful is the examination of privilege in specific contexts, such as in civil litigation, administrative law, corporate settings, and government. Portable and immediately accessible, this useful hardcover book gives lawyers the answers they quickly need, and assurances as to when they can rely on solicitor-client privilege and when they can challenge it.
For more information, and to ORDER
Richard Devlin and Ora Morison have published an article: “Access to Justice and the Ethics and Politics of Alternative Business Structures” (2012) 91:3 Canadian Bar Review 483.
The Abstract: Despite ongoing concern about access to justice in Canada, the problem persists. Meanwhile, the basic model for legal practice in Canada is the same as when the profession first emerged centuries ago in England. Only lawyers can own and control legal practices. This is not the case in other common law jurisdictions where rules have evolved to allow non- lawyers to own the companies that provide legal services. Based on a comparative analysis of the development of these alternative business structures (ABSs) in Australia and the United Kingdom, and the non- development of ABSs in the United States, the authors argue that ABSs may be at least a partial solution to the access to justice problem in Canada. Recent developments indicate ABSs will eventually come to Canada, at which point, the authors argue the legal professional societies will have a crucial role to play in developing appropriate regulation to ensure ABSs improve access to justice.
A new article by Richard Devlin and David Layton “Culturally Incompetent Counsel and the Trial Level Judge: A
Legal and Ethical Analysis” (2014) 60 Criminal Law Quarterly 360-385.