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.
Posted to SLAW September 24, 2014
This summer I again provided the Federation of Law Societies with the syllabus for my legal ethics course. The Federation requested the syllabus for, presumably, the purpose of verifying that the University of Calgary’s course complies with the Ethics and Professionalism Competency as set out in Table B of the Federation’s Implementation Report for the Approved Law Degree. As it did the past two summers fulfilling the Federation’s request left me feeling both uneasy and uncertain.
Uncertain because I am not sure what the Federation wants to do with the syllabus. Are they simply ascertaining that it is a stand-alone course on professional responsibility? Is this just something to let them demonstrate that they really are reviewing those programs they approve? Or are they going to review it more substantively to see if it addresses the broad variety of topics set out in Table B (noted below, and here)? Will they tell me if they do not think I am teaching the right topics? Will they go beyond the syllabus to see what I am actually teaching in various areas? And – ultimately – is the status of our degree as approved at stake as a result of what my syllabus contains? How much freedom do I still have?
Posted to SLAW September 17, 2014
It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.
This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].
LEGAL ETHICS Volume 17 . Part 2 . 2014
Hart Publishing is pleased to let you know that Volume 17. Part 2 of Legal Ethics is now published. 3 Articles with Canadian content.
ONLINE ACCESS To access this issue online, read the abstracts and purchase individual papers please click here
CONTENT
EDITORIAL
Free to view – please click here
ARTICLES
Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms
Margaret Thornton
Abstract: Although women comprise almost 50 per cent of the practising legal profession in Australia and elsewhere, numerosity is insufficient to overcome the ‘otherness’ of the feminine in corporate law firms. Despite measures to recognise the ethic of a balanced life for those with caring responsibilities, these initiatives are undermined by the contemporary imperative in favour of competition. This article argues that there is a hypermasculinist sub-text invoked by the media reporting of a flurry of mergers between super-élite London-based global law firms and Australian firms with an eye to expansion in the Asia-Pacific. It is suggested that the incommensurability of the discourses of flexible work and hypercompetition symbolically revives and sustains the masculinity of super-élite law firms as the gender tipping point draws nigh. To illustrate the thesis, the representation of the two discourses in the print media between 2011 and 2012 are considered, drawing primarily on The Times (London) and The Australian(Sydney). Continue reading
The CBA Ethics and Professional Responsibility Committee just recently released an update of its 2008 Guidelines for Practicing Ethically with New Information Technologies.
Hofstra Law Review, Vol. 42, No. 4, 2014
Abstract:
Debates about the proper boundaries of a lawyer’s role are far from new. A fresh spin on this old debate, however, has emerged with the “positivist turn” in legal ethics theory. While in legal theory scholarship the label “positivism” carries various nuances and controversies, its use in the legal ethics context is, as a general matter, more straightforward and uniform. Broadly speaking, positivist accounts of legal ethics share a general view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.
Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same “fidelity to law” that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.
What has not been given much, if any, attention is how the law governing lawyers is different from other types of law and how this difference may be consequential for the positivist account. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter—the proper bounds of lawyer behavior—that legal ethics theory itself purports to address. As a consequence, two of the “typical” questions or challenges lobbied at positivist accounts of law—what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral terms—give rise to some outstanding questions in the case of positivist legal ethics theory. Below, some very preliminary thought is given to how these puzzles might be “solved.” Ultimately, however, the main goal of this Idea is to highlight these issues as ripe for further consideration and critique.
By Stewart McKelvey
http://canliiconnects.org/en/summaries/29119
Conclusion:
“The majority decision in Estabrooks will be a good precedent for professional regulatory bodies sued for malicious prosecution based on disciplinary proceedings that turned out to be unfounded – and for counsel and litigants urging a cautious approach to the expansion of any contested tort. But as the dissent points out, there is now a conflict in the Canadian case law on malicious prosecution. It might take a trip to the Supreme Court of Canada to settle the dispute.”
Ottawa, 11 August 2014 – The Canadian Judicial Council announced today the composition of the Inquiry Committee established to review the conduct of Justice Michel Déziel.
The Inquiry Committee is comprised of three members: two Chief Justices appointed by the Canadian Judicial Council and one lawyer appointed by the Minister of Justice. The members are: the Honourable Ernest Drapeau, First Vice-chair of Council and Chief Justice of New Brunswick (Chairperson); the Honourable Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba; Mr René Basque, Q.C. of the law firm Actus in New Brunswick.
Ms Suzanne Gagné of the law firm Létourneau Gagné in Québec City has been appointed Independent Counsel in accordance with the Council’s Bylaws. Her mandate is to present the case to the Inquiry Committee, in the public interest.
Under the Judges Act, the Inquiry Committee is deemed to be a Superior Court. The Committee will decide, in the coming weeks, when to hear this matter. Inquiry Committee hearings are normally held in public, although private hearings are possible if required in the public interest and the due administration of justice. The Committee will decide on the scope of its inquiry.
The mandate of the Inquiry Committee is to review all the issues and submit a report to the Canadian Judicial Council, presenting its findings and conclusions on whether or not a recommendation should be made for the removal of the judge from office. The Council will then make a recommendation to the Minister of Justice regarding the judge’s ability to remain in office.
Information about the Council, including the process for public inquiries, can be found on the Council’s website at www.cjc-ccm.gc.ca.
Contact: Norman Sabourin Executive Director and Senior General Counsel (613) 288-1566 ext 313
Composition du comité d’enquête établi au sujet de l’honorable Michel Déziel
Ottawa, le 11 août 2014 – Le Conseil canadien de la magistrature a dévoilé aujourd’hui les noms des membres du comité d’enquête mis en place pour examiner la conduite du juge Michel Déziel.
Le comité d’enquête est composé de trois membres: deux juges en chef nommés par le Conseil canadien de la magistrature et un avocat nommé par le ministre de la Justice. Les membres sont: l’honorable Ernest Drapeau, premier vice-président du Conseil et juge en chef du Nouveau-Brunswick (président), l’honorable Glenn D. Joyal, juge en chef de la Cour du Banc de la Reine du Manitoba et Me René Basque, c.r. du cabinet Actus au Nouveau-Brunswick.
Me Suzanne Gagné, du cabinet Létourneau Gagné à Québec, a été nommée avocate indépendante. Conformément au règlement du Conseil, elle a pour mandat de présenter l’affaire au Comité d’enquête, dans l’intérêt public.
En vertu de la Loi sur les juges, le comité d’enquête est réputé être une Cour supérieure. Le Comité agit de façon indépendante et devra décider, au cours des prochaines semaines, quand il entendra cette affaire. Les rencontres du Comité d’enquête se déroulent normalement en public, bien que des audiences privées sont possibles si l’intérêt public et la bonne administration de la justice le requièrent. Le Comité décidera de la portée de son enquête.
Le mandat du Comité d’enquête est de revoir l’ensemble de l’affaire afin de présenter un rapport au Conseil canadien de la magistrature sur ses conclusions quant à savoir si une recommandation devrait ou non être faite pour relever le juge de ses fonctions. Le Conseil présentera ensuite une recommandation au ministre de la Justice en ce qui concerne l’aptitude du juge à remplir ses fonctions.
Des renseignements sur le Conseil, y compris le processus d’enquêtes publiques, peuvent être consultés sur le site Web du Conseil à www.cjc-ccm.gc.ca.
Personne-ressource : Norman Sabourin Directeur exécutif et avocat général principal (613) 288-1566 poste 313
“There is something suspicious about the whole process when there isn’t even a report put out to the public,” interim Progressive Conservative Leader Jim Wilson said Monday. “I think the government should be held accountable.”
Wilson’s comments come after a Star investigation into a complaint against a Toronto judge who had been repeatedly admonished, and the system that keeps the vast majority of such complaints under lock and key.
Confidential documents, provided to the Star by an unknown source, detailed how the complaint was handled in secret, and the case closed.
According to the Ontario Judicial Council, which probes complaints against judges, there is a “general order,” permitted under Ontario law, banning the publication of any documents and information relating to complaints that don’t result in a public hearing.
The rest of the Toronto Star story HERE
ADAM DODEK Contributed to The Globe and Mail
Published Tuesday, Jul. 08 2014, 12:34 PM EDT
Last updated Tuesday, Jul. 08 2014, 12:42 PM EDT
Minister of Justice Peter MacKay has confidently asserted two things about Bill C-36, the Government’s new proposed prostitution law: that it will certainly be challenged in the courts and that it is constitutional. Mr. MacKay is undoubtedly correct that there will another round in the legal battle over the country’s prostitution laws that will make its way back to the Supreme Court. Until then, we will not know if he is correct about the bill’s constitutionality.
Mr. MacKay can, however, back up his second claim by showing Members of Parliament and Canadians the legal advice that supports his confident assertion. And he should.
Canadian governments have remained steadfast in their refusal to publicly reveal the legal advice that forms the basis for many of their decisions. Governments love to rely on solicitor-client privilege – the protection afforded by the law to confidential communications between a client and lawyer. The Supreme Court of Canada has recognized solicitor-client privilege as a fundamental legal and civil right that enjoys constitutional protection in certain circumstances. For reasons that I have argued elsewhere, it does not make a lot of sense to talk about the government enjoying such constitutional protection.
For the rest of the post, click HERE
Canadian Association for Legal Ethics / Association canadienne pour l’éthique juridique 