D Martinson and N Bell, “Legal Professionalism and Access to Justice: Lawyers as Champions for Children”

Please find attached the “in press” version of the article “Legal Professionalism and Access to Justice: Lawyers as Champions for Children” which will be published by The Verdict.

It is authored by the Honourable Donna Martinson, QC and Dr. Nancy Bell.  This article makes an important contribution to the Ethics literature and Access to Justice literature by arguing about lawyers and the justice system need to do much more to represent the interests of children.

D. Martinson and N. Bell Legal Professionalism and Access to Justice – Lawyers as Champions for Children

 

L Sossin & M Bacal, Judicial Ethics in a Digital Age

TITLE: Judicial Ethics in a Digital Age

AUTHORS: Lorne Sossin & Meredith Bacal

SOURCE: University of British Columbia Law Review

CITED: (2013) 46 UBC L Rev 629 – 664

One thing seems to me to be clear. In facing the reality of the modern communications revolution, it is crucial that we understand the technology and how it is being used — something lawyers and judges, often castigated as Luddites, may not find easy. And having understood the new technology and its uses, we must do what we are doing today — discuss, reflect, and share experiences and best practices.

Chief Justice Beverley McLachlin1

INTRODUCTION

1 Is there anything distinct about the judicial engagement with social media that would constitute an ethical concern? If judges engage in improper communication, for example, we tend to focus on the substance of the communication, not whether it was in person, in print, over the phone, or through some other medium. With social media,2 however, we confront the question of whether the medium in some real sense may become the message as well.3 In other words, in this context, there are really two issues — one is a question of engagement itself (e.g., should a judge have a Facebook page or a blog?) while the second question is one of substance (e.g., what kinds of tweets are acceptable or unacceptable for members of a court to post?). This brief study is devoted to addressing the question of whether social media represents a field of judicial ethics in Canada or simply a new venue for existing ethical guidelines to be applied. Further, if there are new and distinct ethical quandaries to which social media gives rise, we explore how those issues should be resolved, building on the existing ethical templates both in and out of the courtroom.

2 Ethical guidelines in the context of Canadian judicial conduct are advisory in nature, and designed so that they may be adapted to various scenarios. Unlike fixed and precise rules, the guidelines are meant to be both enduring and evolving. The guidelines ought to be adaptable to developments in law, culture, and technology. That said, it is equally true that guidelines may become outmoded (indeed, the Canadian Judicial Council announced a review of the Guidelines in 2011).4 For example, rules provide judges with the tools to control the flow of information in the courtroom — to close a hearing or issue a publication ban, etc. Those rules cease to have meaning in an era when “citizen journalists” may publish information on trials in their blog, or live tweet a motion, or use their cell phones to record the events transpiring in the courtroom. “Crowdsourcing” justice has the potential to make the judge just a participant in a connective community, rather than the person in control of a legal process. Technology, in this sense, has disruptive potential in the justice system (just as it does in every other system).

3 The rise of social media will provide an unprecedented level of access by the public into the lives of judges, and by judges into the lives of everyone else. Ethical implications of social media include not simply whether judges choose to engage with various new media for connectivity, but also how they respond when they become the subject of interest and scrutiny in those media. The recent tabloid judicial investigation into the conduct of Justice Lori Douglas represents, in this sense, a particular kind of canary in a particular kind of coal mine. Soon, it will be hard to imagine a judicial appointee who does not bring significant social-media baggage of one kind or another. We believe the rise of social media represents one of those occasions where the existing guidelines are insufficient to adapt to the disruptive potential of new technology.

4 This analysis has two parts. In the first part, we explore the current ethical guidelines for federally appointed judges in Canada and how these may be adapted to the realities of social-media connectivity.5 We also highlight what we believe to be the gaps in the current ethical framework. This analysis is complemented by selected comparative insights from peer jurisdictions that face similar challenges. In the second section, we suggest some forward-oriented considerations for reform and further development both of judicial ethics and judicial discretion in the context of social media.

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.

Contents:

  • 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.

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

Abstract:

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

 

Canadian Bar Review – two articles that deal with ethics

The November 2013 issue of the Canadian Bar Review features two articles that deal with ethics:

“Settlement Conferences and Judicial Role: The Scaffolding for Expanded Thinking About Judicial Ethics” by Michaela Keet & Brent Cotter

“Solicitor-Client Privilege for Ethics Counsel: Lessons for Canada from the United States” by Stephen G.A. Pitel & Jordan McKie

The table of contents is at the link below but I think the articles themselves require a subscription to access.

http://www.cba.org/cba_barreview/Search.aspx?VolDate=11/01/2013

A Cockfield: Introduction to Legal Ethics

Arthur Cockfield’s book on legal ethics was recently published by LexisNexis Canada Inc., in May, 2013

Abstract:

This book is designed to help to prepare law students and lawyers for ethical and professional issues that  arise in the practice of law and to understand and apply rules of professional conduct. The book can be used, alone or as a supplement to other texts, to generate discussions among students or within a classroom environment about legal ethics. Undergraduate students, legal clients and other members of the public who are interested in the rules that govern lawyers’ professional lives
may also wish to read the book. Continue reading

(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).

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.

N Semple: Core Values: Professionalism and Independence Theories in Lawyer Regulation”

Noel has a new article available on SSRN if you click HERE.

It has been posted to the Legal Ethics Forum; to make/view any comments, you can click HERE.

Abstract: 

North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of “lawyer,” (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? One school of thought is that lawyers have defended traditional self-regulation in order to protect their own interests. However, North American lawyers supported by functionalist sociologists respond that traditional self-regulation protects the interests of clients and the public by upholding important “core values”. This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation.

A Woolley: Chapter in a New Book

ANNOUNCING A NEW BOOK

How Can You Represent Those People?  Edited by Abbe Smith and Monroe H. Freedman

Palgrave MacMillan, publishers. Discounted pre-publication sales currently available at Amazon.com!

This is the first-ever collection of essays on what criminal defense lawyers call The Cocktail Party Question. Contributors are some of the most experienced and thoughtful lawyers and teachers in the

country: Barbara Babcock, Paul Butler, Tucker Carrington, Angela Davis, Alan Dershowitz, Monroe Freedman, Vida Johnson, Joseph Margulies, William Montross, Ann Roan, Meghan Shapiro, David Singleton, Abbe Smith, Robin Steinberg, Michael Tigar, and Alice Woolley. It is a must-buy for lawyers, law students, and anyone interested in crime, punishment, race, poverty, and the motivations of criminal lawyers.