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.
On January 31, 2019, David Layton QC will deliver the F.B. Wickwire Memorial Lecture on the topic of “Criminal Lawyers, Hired Guns & Junkyard Dogs”, looking at the ethics of being a criminal defence lawyer.
The lecture is at 4:30pm in room 105 of the Weldon Law Building at Dalhousie Unversity, Halifax. It is open to the public.
The Forum will be held from 9am to 4:30pm on March 1, 2019 at Osgoode Hall, 130 Queen Street West, Toronto. The Forum is an annual discussion between lawyers, academics and regulators who are interested in legal ethics and professional services regulation. Registration information is available here.
This year the Forum will focus on four topics: modernizing legal regulation, current issues in judicial ethics, entrepreneurial ideas for improving access to justice, and obligations to unrepresented and self-represented parties.
Speakers include Chief Justice Robert Bauman, Dean Adam Dodek, Lisa Eisen, Irwin Fefergrad, Gillian Hadfield, Jacqueline Horvat, Lena Koke, Taryn McCormick, Jacqueline Mullenger, Andrew Pilliar, Darrel Pink, Stephen Pitel, Amy Salyzyn, Darcia Senft, Associate Chief Justice Deborah Smith, Justice Lorne Sossin and David Swayze. The Forum is co-chaired by LSO Treasurer Malcolm Mercer and CALE Vice-President Amy Salyzyn.
In December 2018 the Ontario Judicial Council released its Reasons for Decision (available here) regarding a complaint against Justice Donald McLeod (of the Ontario Court of Justice). The conduct in question involved his role as Chair of the Interim Steering Committee of the Federation of Black Canadians. The Reasons found that Justice McLeod’s conduct was “incompatible with judicial office” (para 92) but that public confidence in his ability to serve as a judge or in the judiciary generally had not been undermined as a result (para 94). Accordingly, the complaint against Justice McLeod was dismissed.
In November 2018 the Canadian Judicial Council released the Report of its Review Panel considering the conduct of Justice Patrick Smith (of the Ontario Superior Court of Justice). The Report addressed issues arising from Justice Smith’s appointment as Interim Dean (Academic) of the Lakehead University Faculty of Law. The report is available here. It concluded that Justice Smith should not have accepted the appointment. However, this was not sufficiently serious to warrant his removal as a judge.
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.
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.
For the rest of the story
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?