Published in the Alberta Law Review, Vol 52, No 3
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.
Posted to SLAW June 10, 2015
In many ways, Canadian law societies are now more transparent institutions than ever before. The Law Society of Upper Canada, for example, has adopted innovations like live webcasts of Convocation meetings, online Annual Reports and a frequently used Twitter account which allow for easier access and greater insight into what goes on at Osgoode Hall and why. And, of course, for those interested in what happens to lawyers “gone bad”, there is free public access to discipline-related decisions on CanLII.
Disciplinary decisions seem to be, indeed, one of the things that lawyers and the public are most interested in. In recent years, several high profile cases – including the ongoing civility case involving newly elected Bencher Joseph Groia, and the now-dismissed conflict of interest allegations brought against former Hollinger lawyers – have received considerable attention. Just in the past few months, the proceedings against a Toronto lawyer who received a five-month suspension after admitting to professional misconduct in representing refugee claimants has received significant media attention (see, here, here, and here).
Posted to SLAW on April 1, 2015
For roughly 30 years, some Canadian lawyers have been engaging in a practice that other Canadian lawyers have vociferously criticized as “extortion with letterhead,” “bullying and intimidation”, a “predatory practice” and “an example of legal strong-arming.” Members of the public have also chimed in, characterizing the practice as “morally wrong” and “like being stabbed in the back”.
The practice at issue is the sending of shoplifting demand letters. In short, this involves lawyers acting for retailers sending letters to alleged shoplifters and/or their parents demanding the payment of money.
To take one example reported in the media, in 2004, one mother received a letter from a lawyer for a retailer four months after her daughter was caught trying to steal lip gloss. The letter “demand[ed] [the mother] pay $379 to help defray the cost of shoplifting or face the consequences, threatening a civil lawsuit for as much as $900.” To take another, more recent, example, in 2012, an eighteen year old paid $610 in response to a demand letter after she was caught stealing just over six dollars in cosmetics.
Alice Woolley posted to SLAW on December 29, 2014
Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct. Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)). They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).
How difficult can this be? Quite, according to some recent media reports. While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting? And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?
By Elaine Craig and posted to SSRN October, 2014
Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse.
The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations regarding the commercial expression engaged in by this subset of the criminal defence bar. The first pertains to the parameters of ethical advertising by criminal defence lawyers who practice sexual assault law. A significant subset of lawyers who advertise legal representation services to individuals accused of sexual offences engage in commercial expression that appears to be inconsistent with the limits and guidelines specified in their professional codes of conduct. The study produced a second observation. Examination of these websites offers a window into the narratives about sexual assault that some defence lawyers construct for their clients, and perhaps also the perspectives about sexual assault held by defence lawyers themselves.
The intersection of legal ethics and technological competency has been a recurring theme in Slaw and other forums for a number of years (see, for example, here, here, and here).
Exactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves (for discussion of what minimum tech standards might look like, see Mitch Kowalski’s and Omar Ha-Redeye’s previous Slaw posts here and here). There is a growing consensus, however, that all lawyers require some level of technological competence in order to meet their professional obligations.
But how do we make universal technological competence a reality? I have previouslysuggested that law societies consider amending codes of conduct to add an affirmative duty on lawyers to understand the benefits and risks of available technologies relevant to the modern practice of law. Although professional rules can be effective in disciplining mal-intentioned or underperforming lawyers, they also are limited in their reach. One major constraint is that rules address problems on an after-the-fact basis rather than preventing problems before they occur (for further discussion, see here).
Barrett B Schitka, University of Calgary – Faculty of Law; University of Houston Law Center
September 25, 2014 McGill Law Journal, Forthcoming
Conflicts of interest issues are one of the most complicated areas of the law governing lawyers that lawyers and law firms face on a day-to-day basis. These issues are further complicated when lawyers are licensed in more than one jurisdiction and become subject to multiple ethical regimes. This article investigates what rules and duties are applicable to lawyers licensed in multiple jurisdictions, and what solutions are available to the lawyer when the law governing lawyers from different jurisdictions diverge or conflict. Through a discussion of the Canadian and U.S. rules on conflicts of interest, this article advocates for a two-step “proper law” approach to determine which jurisdiction’s ethical rules should be applied.
Full paper on SSRN
Quick Reference Tool
On October 1, amendments to the Rules of Professional Conduct and the Paralegal
Rules of Conduct come into effect. A quick reference tool and other step-by-step resources are available to assist lawyers and paralegals in complying with the amended rules.