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?
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.
By:David Tanovich Published on the Star Thu Nov 06 2014
As a law professor and one who teaches legal ethics, one of the most troubling parts of the Jian Ghomeshi story
for me is the question of the ethics of the civil lawsuit
filed by his lawyers against the CBC for a staggering $55 million.
There are serious systemic problems in our justice system surrounding the treatment of sexual assault complainants. There is a culture of intimidation, denial and blaming by police, lawyers, judges and juries that plays a significant role in explaining why so many women do not report their assault and why there are more acquittals in sexual assault cases than for any other offence.
In my view, lawyers have played a significant role in the silencing of sexual assault. Anyone familiar with the criminal justice system will tell you, if they are honest, that lawyers appear willing to be more zealous in defending a client charged with sexual assault than for any other offence. Indeed, one prominent Ottawa lawyer once told a group of young budding lawyers that their role in cross-examining a sexual assault complaint is to “whack the complainant … if you destroy the complainant … you destroy the head … you’ve got to attack the complainant hard with all you’ve got.” More recently, a senior member of the bar told a group of lawyers that their job was to “kill” the complainant in cross-examination.