Category Archives: Ethics and Professionalism

A Dodek: The Ethics of Articling

Posted on by

It has long been an open secret that our articling system is deeply flawed. But is it unethical?

Articling today is a system that would be equally at home in Downton Abbey and in Booker Prize Winner Hillary Mantel’s Wolf Hall.

While I don’t think articling is inherently unethical, I do believe that it is inherently unequal and therefore creates an environment where unethical behavior is possible. Articling takes a vulnerable and powerless law student who is often carrying a significant financial debt and requires her to be at the beck and call of an experienced lawyer with largely no oversight. Desperate students will do almost anything to obtain articles and they will put up with almost anything to fulfill their articles. Some students even article for free, a possibility that exists only because articling is exempt from general wage and hour legislation that protects most employees.

Read the rest of the post on SLAW here: http://www.slaw.ca/2013/12/09/the-ethics-of-articling/

Canadian Judicial Council announces next steps in the review of a matter involving the Honourable Michel Déziel

Posted on by

For the original post on the CJC website, click HERE

Ottawa, 22 November 2013 –The Canadian Judicial Council announced today that a Panel of three judges will undertake further review of the conduct of the Honourable Michel Déziel.

Allegations surrounding the conduct of Justice Déziel were raised in the context of an ongoing Commission of Inquiry and were brought to the attention of Council in May 2013. In accordance with the Complaints Procedures of Council, these allegations were considered by the Honourable Edmond Blanchard, Vice-Chairperson of the Judicial Conduct Committee of Council. Having considered all the available information, including the judge’s response to the allegations, Chief Justice Blanchard has decided that this matter would benefit from further consideration by a Panel of three judges. Continue reading →

Update on Lori Douglas Inquiry: Inquiry Committee Resigns

Posted on by

From the Canadian Judicial Council website:

Ottawa, 20 November 2013 –The members of the Inquiry Committee appointed to review a matter involving Associate Chief Justice Douglas have announced their resignation, effective immediately. The Committee has released reasons for its decision, which are available on the website of the Canadian Judicial Council. In its reasons, the Inquiry Committee notes a number of factors that led to its decision, and notes that the public interest would not be served by ongoing delays, public expenditures and uncertainty about the process itself.

Currently, the Federal Court is scheduled to hear a challenge from Associate Chief Justice Douglas about a number of issues. Some questions remain about whether these proceedings will go ahead as planned.

Council’s mandate and duty is to ensure that the review of allegations against the judge can proceed in accordance with the provisions of theJudges Act and with Council’s By-laws in a fair and expeditious manner, in keeping with the public interest. In due course, another inquiry committee may be appointed in respect of Associate Chief Justice Douglas.

Contact:
Norman Sabourin
Executive Director and Senior General Counsel
(613) 288-1566 ext 302

Lawyer Deregulation for Access to Justice – Professionalism Speakers Series – Ottawa

Posted on by

“Lawyer Deregulation for Access to Justice: Silver Bullet or Blank Round? What does access to justice have to do with legal services regulation?”

Link to the Ottawa website is HERE

Noel Semple
Post-Doctoral Fellow at the University of Toronto’s
Centre for the Legal Profession

When: October 30, 2013
Room number: FTX 351

This program has been accredited by the Law Society of Upper Canada for 1.5 Professionalism Hours

** Lunch included – All are welcome **

*Photos may be taken at this event and it may be recorded for use on Faculty of Law websites/publications.

M Mercer: A Bright Line Rule of Limited Scope

Posted on by

Malcolm Mercer posted to SLAW

A decade ago, the Supreme Court of Canada introduced a new conflicts rule into Canadian law. The rule was fashioned from the ABA Model Rules of Professional Conduct. This new “bright-line rule” generated substantial controversy within the profession. In July, the Supreme Court released its decision in McKercher which both restated and reformulated the “bright line” rule[i].

The “bright-line rule” as first articulated in Neil provided that a lawyer could not act in a matter directly adverse to the immediate interests of a current client without proper consent. The impact of this rule was said to be somewhat limited by the proposition that professional litigants, such as governments and chartered banks, could be taken as “broad-minded” such that their informed consent could be implied. Also, the Court emphasized judicial discretion as to remedy. Not all “bright-line” crossings would have consequences. For example, where a complaint was viewed by the court as tactical, a remedy could be denied.

The policy basis for the “bright-line rule” was reasonably clear. The rule guarded against impairment of client representation. The lawyer-client relationship might be compromised where a lawyer acted in a matter directly adverse to the immediate interests of his or her client. On the other hand, the lawyer might be tempted to “pull punches” so as not to offend the adverse client. The existing “substantial risk” principle might not fully protect against these risks.

For the rest of the article, click HERE

S Fodden:

Posted on by

Simon Fodden posted to SLAW re. the Groia appeal.

Thanks to a comment Noel Semple on the legal ethics email list to which I belong, I was alerted to the fact that the Advocates’ Society has filed a factum as an intervener in the appeal by Joseph Groia of the finding against him of misconduct — “incivility,” principally — by the Law Society of Upper Canada. (See also the Advocates’ Society note on the matter.) The appeal has yet to be heard. The Advocates’ Society has also placed online Groia’s factum, that of the Canadian Civil Liberties Association as intervener and the respondent Law Society’s factum.

This important matter has been in the legal system for many years. Some time in 2000, during a trial in which the Ontario Securities Commission sought to convict John Felderhof of insider trading and misleading statements in the affairs of Bre-X Minerals Ltd., one of the defence counsel, Joseph Groia, made statements about the (role and) conduct of the prosecutor that were described by Justice Archie Campbell in a subsequent hearing about the trial judge’s possible loss of jurisdiction as “unrestrained attacks on [the prosecutor’s] professional integrity.” Allegations of further incivility and improper conduct as an advocate led, only very eventually, to an application before a Law Society of Upper Canada hearing panel, noticed on November 18, 2009. The allegations are detailed in the notice of application. On June 28, 2012 the hearing panel, in a very lengthy decision, found that the Society had proven all of the allegations of misconduct. And on April 18, 2013 Joseph Groia was suspended for two months and order to pay $246,960.53 in costs. Groia has appealed the finding that his conduct amounted to “incivility” and the penalty imposed.

These documents (together with the Court of Appeal comments upon the appeal of Justice Campbell’s ruling) make a significant package of materials suitable for any teaching situation concerned with professional responsibility and the limits of an advocate’s role.

For the links and comments on SLAW, click HERE

The Advocates’ Society: Selected Submissions – Groia

Posted on by

Intervention in the Groia Appeal before the Law Society of Upper Canada Appeal Panel 

The Advocates’ Society has been granted leave to intervene in the Groia matter and has now filed its factum with the Appeal Panel at the Law Society of Upper Canada.  The Society sought leave to intervene in the appeal because the reasons for decision of the Hearing Panel which convicted Mr. Groia of professional misconduct raise important issues regarding professionalism and civility and regarding the discipline process.

 For more information, go to the website here: http://www.advocates.ca/new/advocacy-and-practice/list-of-submissions.html

M Kowalski: Lawyers and Conflicts – the Myopia Continues

Posted on by

Mitch Kowalski posted to SLAW here: http://www.slaw.ca/2013/08/29/lawyers-and-conflicts-the-myopia-continues/

Yesterday, retired judge Dennis O’Connor resigned from heading up the Toronto Police use of force review. He did so because of a perceived conflict of interest over his role at Borden Ladner Gervais LLP; BLG represents the Toronto Police when they are sued.

According to the Toronto Sun, O’Connor said in a statement, “We were surprised by the objections raised by lawyers for some of the victims’ families to my conducting the review. We had thought that I could structure and conduct the review to satisfy any concern but apparently not….. I regret that this issue has arisen but I am of the view that if there is any possibility of concern in a matter such as this, it is best to address it at the outset.” Continue reading →

S Yatim: Dennis O’Connor resigns from Chief Blair’s police review in wake of streetcar shooting

Posted on by

From the Toronto Star website, August 28, 2013

Dennis O’Connor, the former associate chief justice of Ontario, has decided he is no longer able to assist Toronto Police Chief Bill Blair in a review into the use of force by police.

O’Connor made the surprise announcement following questions raised about his affiliation to the law firm Borden Ladner Gervais.

“The basis for the decision is my position as counsel with Borden Ladner Gervais LLP (BLG), which also acts for the insurers of the Toronto Police Service in civil suits, some of which include allegations of the wrongful use of lethal force,” O’Connor said in a statement released Wednesday.

“As set out in Chief Blair’s August 14 press release, we are both satisfied that my association with BLG would not in fact impair my ability to provide the Toronto Police Service with sound advice on the matters involved in the review.

“However, after the announcement, we were surprised by the objections raised by lawyers for some of the victims’ families to my conducting the review. We had thought that I could structure and conduct the review to satisfy any concern but apparently not.

“Upon careful consideration, I have come to the conclusion that my association with BLG may raise a public discussion about this issue that would be distracting and unfortunate. I regret that this issue has arisen but I am of the view that if there is any possibility of concern in a matter such as this, it is best to address it at the outset.”

O’Connor said Blair would announce a replacement on Friday.

Blair later released a statement saying, “The Honourable Dennis O’Connor, Q.C., has just explained why he felt he had to withdraw from my internal review I announced on August 12, 2013. I have great respect for Mr. O’Connor and his work and I understand his decision.”

For the rest of the story, and analysis, on the Toronto Star website, click HERE