Category Archives: Ethics and Professionalism

G Hamilton: Judge accused of buying cocaine as a lawyer attempts to halt disciplinary procedure before hearings even begin

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National Post article

Graeme Hamilton
Thursday, Jul. 10, 2014

MONTREAL — A Quebec Superior Court judge facing possible removal from the bench over allegations he bought cocaine during his days as a lawyer has gone to court in an attempt to halt a disciplinary procedure before hearings are even held.

In an application for judicial review filed with Federal Court, Justice Michel Girouard is challenging the Canadian Judicial Council’s powers to investigate complaints against judges.

Among other arguments, Judge Girouard is saying the council has no business examining his behaviour when he was practising law before his 2010 appointment to the bench. “Only the provincial authority has the jurisdiction to investigate and draw conclusions on the conduct of a lawyer,” his lawyers write in the application.

The Council, whose members include Supreme Court of Canada Chief Justice Beverley McLachlin and all superior court chief and associate chief justices, announced in February that it would hold a public inquiry into Judge Girouard’s conduct.

“After a careful review of the matter, the members of the [review] panel decided that the issues in question are serious enough that they could warrant the judge’s removal from office,” the council said at the time. A three-person inquiry committee was named last month, but proceedings are on hold until the Federal Court case is resolved.

The rest of the story HERE

Contract on toilet paper slammed by Saskatchewan Law Society

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Lawyer was unhappy with being asked to furnish a retainer agreement

CBC News Posted: Jun 24, 2014 5:30 AM CT Last Updated: Jun 24, 2014 5:30 AM CT

A Saskatchewan lawyer who submitted a piece of toilet paper as proof of a contract with his client has been sharply rebuked by the province’s law society.

In a decision recently published to an online legal database, Ron Cherkewich, from Prince Albert, Sask., has been ordered to pay a fine and investigative costs totaling $10,500 for the ill-advised stunt, which the law society said amounted to conduct unbecoming a lawyer.

According to the decision, Cherkewich’s behaviour — described as “rude and provocative” — took place in 2011 while he was representing a client who had filed a claim under Canada’s Indian Residential Schools Settlement agreement.

The full story

R N M Graham: Legal Ethics: Theories, Cases, and Professional Regulation (3rd Edition)

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Randal N. M. Graham’s casebook: Legal Ethics: Theories, Caes, and Professional Regulation (Emond Montgomery Publications, 2014) available soon.

Order through Emond Montgomery Publications

From the website:

Legal Ethics: Theories, Cases, and Professional Regulation, 3rd Edition is the only Canadian legal ethics text to focus specifically upon the approach applied by regulators in practice, presenting lawyers’ ethical obligations in direct relation to the concepts that are of greatest concern to regulators. This casebook delivers a structured and rational assessment of ethical decision-making by tying it to predictable and measurable costs and benefits, and examining the impact of decision outcomes on the social functions of the legal system.

The third edition of Legal Ethics: Theories, Cases, and Professional Regulation has been adapted to reference the Federation of Law Societies’ Model Code of Professional Conduct as its primary source of ethical rules, so that it may apply to all Canadian jurisdictions. It features an expanded section on the Good Character requirement that applies to students on their admission to the bar, as well as a new section on Civility, and recent developments in the expanding Duty of Loyalty. The regulatory approach presented by the author demystifies nebulous notions of “ethics” and “morality” by examining the efficient functioning of the legal system, the effect of rules on self-interested actors, the goals of deterrence and compensation, and the implications of a self-governing profession.

Throughout this edition of Legal Ethics: Theories, Cases, and Professional Regulation, surprising theoretical situations are introduced to illuminate the intricacies of legal ethics and demonstrate how they are applied in practice. Extensive sample questions, illustrative scenarios, and hypothetical case studies will provoke lively classroom discussion and thoughtful analysis of the ethical principles being considered. This casebook delivers a thorough and methodical account of legal ethics that will equip students with the insight and analytical capacity to apply their knowledge in a wide variety of practical and professional contexts.

Workshop: Ethics and Civility in the Practice of Law

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A 1/2 day program on Ethics and Civility in the Practice of Law for the Canadian Institute for the Administration of Justice. The program will be held in Edmonton at the Sutton Place Hotel on September 26, 2014 from 8:30am -12:30pm.

From the flyer:

A half-day, hands-on, practical seminar addressing some of the more intractable ethical issues lawyers, judges, and tribunal members must deal with in practice: Do the courts, and law societies have a role in regulating civility and, if so, how do their roles differ? What role is there for professional bar associations? What unique ethical and civility issues arise in the context of administrative proceedings? What special ethical and civility issues apply to and arise for in-house and government lawyers?

Agenda and additional information

A Dodek’s new book: Solicitor-Client Privilege

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Adam Dodek’s new book Solicitor-Client Privilege (Lexis Nexis, 2014) has finally been published.

Details for the book launch:

  • in Ottawa in conjunction with the County of Carleton Law Association and the Cavanagh LLP Professionalism Speaker Series on Tuesday June 24th http://www.ccla-abcc.ca/events/event_details.asp?id=447009&group=  Please register for this event; and
  • in Toronto on Thursday, June 26th from 5:30-7:30 pm at the LSUC.  The Honourable Stephen T. Goudge will provide introductory remarks and refreshments will be served.  RSVP to SCPBookLaunch@gmail.com to let me know if you can make it.

Description from the LexisNexis website:

Solicitor-client privilege is the oldest and strongest legally-sanctioned safeguard protecting confidential communications. Yet, lawyers today know very little about the ways in which solicitor-client privilege can be overridden or rendered inapplicable. Most practitioners assume that all lawyer-client communications are protected – they aren’t.

Solicitor-Client Privilege is the only Canadian textbook of its kind to explain key aspects of lawyer-client confidentiality. With a Foreword written by former Supreme Court of Canada justice Ian Binnie, this distinctly Canadian law textbook analyzes the exceptions to privilege, conditions where privilege is unclear, and situations of competing interests that might bring into question the application of privilege.

Especially useful is the examination of privilege in specific contexts, such as in civil litigation, administrative law, corporate settings, and government. Portable and immediately accessible, this useful hardcover book gives lawyers the answers they quickly need, and assurances as to when they can rely on solicitor-client privilege and when they can challenge it.

 For more information, and to ORDER

Maj.-Gen. Blaise Cathcart faces examination in Nova Scotia

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Judge advocate general has gone 3 years without filing reports to defence minister

By James Cudmore, CBC News Posted: May 30, 2014 5:00 AM ET Last Updated: May 30, 2014 5:00 AM ET

Maj.-Gen. Blaise Cathcart, the top lawyer and general in charge of Canada’s military justice system, is under scrutiny by legal regulators after an apparent failure to comply with the National Defence Act three years running.

And CBC News has learned the other two pillars of military justice — the directors of defence and prosecution — have each also apparently broken military regulation for a similar failure.

Cathcart, the military’s judge advocate general, has admitted he failed to provide reports on the administration of military justice, as he is required to do by law.

Full story on the CBC website

Sask CA Decision: Merchant v Law Society of Saskatchewan

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Evatt Francis Anthony Merchant v Law Society of Saskatchewan, [2014] SKCA 56

OTTENBREIT J.A.

I. INTRODUCTION

[1] This case concerns Evatt Francis Anthony Merchant (“Mr. Merchant”), a lawyer who has been disciplined by the Law Society of Saskatchewan pursuant to The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1 (the “Act”) and the Law Society Rules. A Law Society of Saskatchewan Hearing Committee (the “HC”) on December 12, 2011, determined he was guilty of conduct unbecoming in respect of a two count amended formal complaint that
he did:

(i) breach a Court Order of Mr. Justice Smith dated June 4, 2003 (the “Smith order”) that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; Reference Chapter XIII of the Code of Professional Conduct
(ii) counsel and/or assist his client, M.H., to act in defiance of a Court Order of Mr. Justice Smith dated June 4, 2003; Reference Chapter XIII of the Code of Professional Conduct

The full decision

A Woolley: Ethical lawyers are made not born

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Posted to SLAW on May 9, 2014

Prospective employers and recent law grads identify ethics and professionalism as crucial competencies for new lawyers. In a recent articleProfessor Neil Hamilton summarized various empirical studies showing that legal employers rank “integrity, honesty and trustworthiness” as a crucial quality in a prospective lawyer hire, regardless of the type of legal work for which the lawyer is being hired. Similarly, new graduates view professionalism as one of the most important skills for the new lawyer. In his article Hamilton notes a survey by Canada’s own Federation of Law Societies in which lawyers who graduated between 2007 and 2012 indicated that “ethics and professional skills” are essential competencies in legal practice (survey data is here).

From this review Professor Hamilton suggests various conclusions. One is that employers should try to identify hiring criteria to identify those candidates with the necessary “integrity, honesty and trustworthiness” (p. 17). Another is that law schools should incorporate competencies related to “values and virtues”, such as “Commitment to self development toward excellence at all competencies; Initiative/drive/strong work ethic; Integrity, honesty, and trustworthiness; Self awareness, the capacity to recognize strengths and weaknesses, seeks/responsive to feedback” (p. 28)

While I can’t help but be pleased to see this apparent consensus on the importance of ethics and professionalism to legal practice, I think the conversation as framed has the potential to lead us astray. It does so in two ways: by overly generalizing legal ethics as a topic for discussion and by assuming that it is ethical actors who create ethical behaviour.

Is “legal ethics” a thing?

Continue here

LSUC Response to Toronto Star Article re prosecuting lawyers

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Posted to the LSUC website

For the Record: Toronto Star coverage

The Toronto Star’s recent coverage of the regulation and disciplining of lawyers by the Law Society is unbalanced and misleading. Many of the cases cited in the Star’s stories, as well as their principal sources, are significantly outdated. The Law Society provided, in writing and through interviews, enhancements to our regulatory policies and practices implemented over the past several years that improve public protection, increase transparency, and ensure a more efficient exchange of information with law enforcement agencies. Most of these facts were ignored.

The Star cites a list of more than 200 lawyers’ cases, stretching back over a decade, and implies that most, if not all, involved a criminal offence. What the Star says is a criminal offense, however, is untested, and would be disputed in many cases, particularly by the police.

Protecting the public interest

In their focus on criminal prosecution, the Star ignores the essential facts of the Law Society’s role and mandate as the regulator of the legal profession. The Law Society is charged with protecting the public interest by investigating and disciplining lawyers who have broken the Rules of Professional Conduct. In every one of the cases cited by the Star, the Law Society took regulatory action against these individuals. Our prosecution can result in the revocation or suspension of the lawyer’s licence to practice. We moved to protect the public from future harm that might be done to clients by an individual as a legal professional. We removed the lawyer’s ability to provide legal service, and to earn a living as a lawyer. This is our area of responsibility. Criminal investigations and prosecutions are outside our jurisdiction.

In fulfilling our obligations to the public as the regulator of lawyers and paralegals, the Law Society regularly reviews and updates its policies and practices to ensure that they fulfil our mandate and authority. We sought, and obtained, legislative amendments over the last several years that make it easier for us to protect clients by suspending a lawyer’s licence earlier in the investigation process. We have significantly increased the transparency and public access to disciplinary information, again increasing the protection of the client’s interest and allowing greater and more timely access to information for the police.

Cooperation with the police

The Star asserts that other law societies are more proactive in contacting law enforcement agencies when a lawyer may have committed a criminal offence. All law societies are committing to providing the police with information to the full extent under the law. The Star fails to provide any evidence that the public are better protected in any other jurisdiction.

There are many more police forces in Ontario than other provinces. As a result, we need to reach out on a regular basis to a large number of police services, including the RCMP and OPP, in order to provide information about cases, trends, and access to Law Society information. Law Society staff also meet with and assist members of police forces on individual cases on a regular basis.

There are a number of references in the Star stories to notification of police that leave the impression that the Law Society does not talk to the police. This is echoed in a radio interview with Toronto Star reporter Kenyon Wallace. In an appearance on the Jerry Agar show on May 5, 2014, Mr. Wallace commented on his own piece from Star on May 5. Mr. Wallace indicated that the Law Society of Upper Canada told him that we do not provide information to the police about lawyers under investigation, suspension or who have been disbarred.

Mr. Wallace’s assertions are factually incorrect. He mischaracterizes information provided to him clearly and in writing by the Law Society.

The facts:

  • The Law Society has a proactive relationship with police forces in Ontario, through which we explain to their members exactly where and how to find disciplinary information we post on our website about every lawyer and paralegal facing a disciplinary hearing. Law Society staff also meet regularly with members of police forces on individual cases police are investigating. We not only make the police aware of the possibility of criminal activity, we also help police to gather evidence, and, where appropriate, we encourage clients to work with the police.
  • Information about every lawyer and paralegal facing a disciplinary hearing is freely available and can be instantly referenced by any member of the police, or the public.
  • In 2013, for example, Law Society staff presented at 17 different events with police forces. The purpose of these meetings is to ensure that the police know where and how to access law society discipline information quickly and easily, so as to assist police in their investigations.

Toronto Star: Broken Trust: Two Faces of Justice

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Posted to the Toronto Star website

Former lawyer Lawrence Burns runs a North Toronto restaurant. He is also a disbarred lawyer found to have taken close to half a million dollars from his clients. Burns, like many lawyers caught with his hand in a trust account, escaped criminal prosecution. A Toronto Star investigation found most Canadian law societies report members to police. The Law Society of Upper Canada does not.

They treat client trust accounts as their personal piggy banks, facilitate multi-million-dollar frauds and drain retirement savings of the elderly.

While most lawyers caught stealing from their clients are reprimanded, suspended or disbarred by the profession’s regulator, the vast majority avoid criminal charges, a Star investigation reveals.

The Star found that more than 230 lawyers sanctioned for criminal-like activity by the Law Society of Upper Canada in the last decade, stole, defrauded or diverted some $61 million held in trust funds for clients.

Fewer than one in five were charged criminally. Most avoided jail.

“I truly believe there are two laws — a set of rules and regulations for lawyers and a different set for everyone else,” said Richard Bikowski, who was fleeced out of $87,500 by now-disbarred Toronto lawyer Lawrence Burns.

Unlike the law societies in most other provinces, the Law Society of Upper Canada does not, as a rule, report suspected criminal acts by its members to police, no matter how much money lawyers steal.

For the full story, go to the Toronto Star website