Category Archives: Ethics and Professionalism

A Woolley: Independence of the Bar and the Prevention of Money-Laundering

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On ABLawg, May 8, 2013, Alice Woolley considered:  Federation of Law Societies of Canada v Canada (Attorney General) 2013 BCCA 147.

Introduction

On April 4, 2013 the British Columbia Court of Appeal issued its decision in Federation of Law Societies of Canada v Canada (Attorney General), 2013 BCCA 147 which upheld the earlier decision of a chambers judge that aspects of Canada’s money-laundering legislation violate section 7 of the Charter of Rights and Freedoms and cannot be saved under section 1.

In her initial judgment (2011 BCSC 1270) the chambers judge held that aspects of the money-laundering regime undermined the lawyer-client relationship and, in particular, eroded the solicitor-client privilege, which created an unjustified violation of section 7 (para 144). Because the alternative regime implemented by the provincial law societies was an effective alternative that had a more minimal effect on the liberty interests of clients, the money-laundering regime could not be saved under section 1. The law societies’ regulation ensured “that proportionate and dissuasive criminal, civil or administrative sanctions be available for non-compliance with anti-money laundering requirements” (para 154).

To continue reading, and for a PDF of her analysis, click HERE

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.

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.

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 →

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 →

Killer officer’s lawyer owes Ont. thousands

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Published in the Windsor Star – for the website, click HERE
The Canadian Press| Apr 04, 2013 | Last Updated: Apr 04, 2013 – 7:10 UTCThe Canadian Press| Apr 04, 2013 | Last Updated: Apr 04, 2013 – 7:10 UTC

An assessment of the taxpayer-funded legal bills of a former Toronto police officer who killed his lover has found that one of his lawyers overbilled the province by nearly $200,000.

Richard Wills was convicted of first-degree murder in 2007 for killing Linda Mariani then stuffing her body in a garbage can and sealing it behind a wall in his basement. Wills was once a millionaire, but he systematically divested himself of his assets, then ran up a $1.2-million legal bill to Legal Aid Ontario and the Ministry of the Attorney General.

The ministry asked the court to assess the legal bills of two of the several lawyers Wills went through and the court found Wednesday that of the approximately $770,000 that Munyonzwe Hamalengwa billed, about $178,000 was “excessive.”

The government did not pay Hamalengwa, who represented Wills on many pre-trial motions, for the last bill he submitted, so that leaves Hamalengwa owing the province $86,000.

The bills for the other lawyer, Raj Napal, have not yet been assessed and a lawsuit launched by the government to recover money spent on Wills’ defence was put on hold until both assessment proceedings are finished.

The Federation of Law Societies of Canada v Attorney General of Canada 2013 BCCA 147

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http://www.courts.gov.bc.ca/jdb-txt/CA/13/01/2013BCCA0147.htm

Appeal dismissed. Reasons by Hinkson JA. concurred in by Finch CJBC and Neilson JA. Concurring reasons by Frankel JA concurred in by Garson JA

Introduction

[1] Money laundering and terrorist financing involve the process of disguising activities in order to make them appear legal. The objective of these activities is to mask financial resources and criminal conduct from the scrutiny of state authorities.

[2] Beginning in 1989, the federal government introduced legislation aimed at combating these activities. The application of the various forms of legislation to lawyers and notaries proposed by the Attorney General of Canada (“Canada”) has been the subject of disagreement between Canada, and the members of the Federation of Law Societies of Canada (“FLSC”) and its member societies. Continue reading →

S Pitel discusses “Solicitor-Client Privilege for Ethics Counsel: Lessons for Canada from the United States”

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On Friday 15th March, the Schulich School of Law hosted a CALE sponsored Faculty Seminar delivered by Stephen Pitel on his forthcoming paper “Solicitor-Client Privilege for Ethics Counsel: Lessons for Canada from the United States”.

To watch the Faculty Seminar on YouTube, click HERE.

Support for the seminar was provided by Goodmans LLP, the Schulich School of Law and CALE.

22nd Annual F.B. Wickwire Memorial Lecture in Professional Responsibility and Legal Ethics

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On Friday 15th March, the Schulich School of Law hosted  the Twenty-Second annual F.B. Wickwire Memorial Lecture in
Professional Responsibility and Legal Ethics.

This year, they ran a panel discussion entitled “Contextualizing Legal Ethics” in which members of the faculty discussed, in 12-minute pitches, legal ethics in their fields of substantive interest.

The presenters were:

Philip Girard: the historical context

Sarah Bradley: Corporate Law

Brent Cotter: Government Lawyer

Meinhard Doelle: Environmental Law

Geoff Loomer: Tax Law

Rollie Thompson: Family Law

The rapporteur for the session was the indefatigable Stephen Pitel!

To watch the Wickwire panel discussion on YouTube, click HERE.