Category Archives: Ethics and Professionalism

J Gallant: Chief Blair insists review will be unbiased despite O’Connor’s law firm client list

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Jacques Gallant published this article in the Toronto Star on Wed, August 14, 2013

Toronto police Chief Bill Blair sought to assure the public on Wednesday the internal review of police’s use of force in dealing with emotionally disturbed persons will be unbiased, although the former judge tasked with leading the review, Dennis O’Connor, works for a law firm that has acted for the insurers of the police in civil suits.

In a statement emailed to reporters, Blair said he is satisfied O’Connor, a retired Ontario associate chief justice who is now employed by Borden Ladner Gervais LLP, will be able to provide him with sound advice on the policies he has been asked to look at.

For the rest of the story on the Star website, click HERE

Y Tadese: Ontario court applies McKercher, allowing lawyer to remain on case

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Published in the Law Times on Monday, 19 August 2013 08:00 | Written By Yamri Taddese

In a decision referencing the Supreme Court’s ruling in Canadian National Railway Co. v. McKercher LLP, an Ontario court has refused to remove counsel from a case because he had formerly represented the opposing party. Richard Hames, a founding shareholder of a construction company, wants to retire but is in dispute with the rest of the shareholders about the terms of his withdrawal from the enterprise. The shareholders’ lawyer, Mark Klaiman, had previously represented Hames and his company.
But while Hames claimed Klaiman was in a conflict of interest due to his former retainer with him, the court didn’t readily agree.
In McKercher, the court made it clear that “it is not sufficient for the former client to make bald assertions that the lawyer had obtained confidential information,” Superior Court Justice David Brown wrote in Hames v. Greenberg on July 24.

For the full story on the Law Times website, click HERE

A Cockfield: Introduction to Legal Ethics

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Arthur Cockfield’s book on legal ethics was recently published by LexisNexis Canada Inc., in May, 2013

Abstract:

This book is designed to help to prepare law students and lawyers for ethical and professional issues that  arise in the practice of law and to understand and apply rules of professional conduct. The book can be used, alone or as a supplement to other texts, to generate discussions among students or within a classroom environment about legal ethics. Undergraduate students, legal clients and other members of the public who are interested in the rules that govern lawyers’ professional lives
may also wish to read the book. Continue reading →

A Dodek: Does Solicitor-Client Privilege Apply to an Attorney-General Who Is Not a Lawyer?

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Adam Dodek posted to SLAW on August 6, 2013.

No, it should not. That’s the best answer under existing doctrine and I think it is also the right answer.

In my previous post The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal Profession, I reviewed the BC courts’ rejection to a challenge to a non-lawyer being appointed to the top legal job in the BC government.

Since then, BC Premier Christy Clark appointed a lawyer (!) as Justice Minister and Attorney General (The Hon. Suzanne Anton).

Despite this, the trend of non-lawyers being appointed as AGs is not abating and the issue of whether Solicitor-Client Privilege covers their advice is likely to come before the courts eventually. Should Solicitor-Client Privilege protect advice from a non-lawyer Attorney General?

For the full article, complete with handy hyperlinks and discussion, go to the SLAW website HERE

(2013) 26 Canadian Journal of Administrative Law and Practice

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The recent volume of the Canadian Journal of Administrative Law and Practice (26(2)) is legal ethics orientated.  In addition to Alice Woolley’s piece on good character there is an article by Simon Ruel, “What Privileges Arise in the Administrative Context, and When” (at 141) and Michael Morris and Sandra Nishikawa have an article “The Orphans of Legal Ethics: Why government lawyers are different – and how we protect and promote that difference in service of the rule of law and the public interest” (at 171).

A Salyzyn: What if We Didn’t Wait? Promoting Ethical Infrastructure in Canadian Law Firms

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Amy Salyzyn posted to SLAW on July 25, 2013

Conventional models of regulating lawyer conduct tend to be largely reactive. In most cases, law society disciplinary regimes respond after a complaint is filed alleging that a lawyer has engaged in some kind of professional misconduct. One obvious shortcoming to this approach is that concerns are addressed only after they become problems. For clients and affected third parties, this type of “after the fact” regulation often provides little solace: lawyer discipline can be a lengthy, time-consuming process that yields little in the way of meaningful relief. Obviously, it would be preferable if the problem never occurred in the first place.

So, what if we didn’t wait for problems to occur? What if problematic lawyer conduct could be prevented? What if we had a more proactive regulatory regime for governing the ethical conduct of lawyers?

To help us think through answers to these questions, we can, once again, look to encouraging developments in other jurisdictions.

For the rest of the post, and comments, go to the SLAW posting HERE

M Love: Donation to charity gets Manitoba Crown fired

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Myron Love posted the story on Legal Feeds (the blog of Canadian Lawyer and Law Times), posted July 16, 2013

t may be a case that is unique in legal annals in Canada.

Sean Brennan, a Manitoba Crown prosecutor since 2000, was fired in early July after he reported a situation in which a leading Winnipeg aerospace company made a substantial donation to a charity dear to Brennan’s heart at about the same time that Brennan dropped charges against the company charged with failing to follow required safety guidelines — which resulted in a workplace accident.

“It’s an unusual case,” says Allan Fineblit, CEO of the Law Society of Manitoba. “This was not a situation where the lawyer personally benefitted. The money went to a good cause.”

Professor Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, however doesn’t see Brennan’s actions as differing substantially from any other “garden variety” conflict-of-interest situation despite the former prosecutor not gaining anything personally.

For the rest of the story on Law Feeds, click HERE.

A Woolley: Supreme Court of Canada on Conflict of Interest

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Our own Alice Woolley wrote a comment for the Legal Ethics Forum on Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.

Today the Supreme Court of Canada issued its judgment in Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.  The decision does not break new ground, but it does clarify the rules governing conflicts between two current clients of a law firm – i.e., that a law firm may not act for clients with directly adverse legal interests, even in matters that are unrelated, without the client’s consent.  That “bright line” rule had been the subject of debate and argument amongst the Canadian legal community, with the Canadian Bar Association arguing that the bright line should only create a rebuttable presumption.  The Supreme Court held that the rule was still in place.  At the same time, they arguably qualified its application insofar as they made it clear that “the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” (para 37).  In addition, they were clear that disqualification of the law firm is  not an automatic response to a finding of conflicts.  Disqualification is required where there is a risk of misuse of confidential information, to avoid the risk of impaired representation or to protect the administration of justice.  When the last of those is at stake the Court may take into account “(i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.” (para. 65)

For the rest of her post, click HERE

For the judgment, click HERE

M Mercer: The Access to Clothing Crisis

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Malcolm Mercer just posted a piece on the SLAW website.

(Before you query its relevance for the CALE website, read it – it is not really about access to clothing … )

Access to Clothing[1] is a complex issue that seems almost impossible to effectively address. Some consider it one of our most pressing issues[2]. The well-off continue to be able to afford appropriate clothing for all occasions. The least fortunate amongst us are able to access free or subsidized clothing to be worn during the most important events in their lives. The middle class cannot afford to purchase clothing at all.

To the great discomfort of businesses, restaurants and hosts and hostesses everywhere, most members of the middle-class have given up wearing purchased clothes entirely. Many people now wear home-made clothing that is barely adequate[3] for most occasions. Public policy analysts refer to this group as the self-clothed. Many other people eschew clothing entirely. These are the unclothed.

For the rest of the article, click HERE.

A Salyzyn: Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest

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Amy Salyzyn, Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest, published on SLAW April 9, 2013.

The Canadian legal profession has never been shy to rationalize and justify its role in society. The public relations campaign launched by the Ontario Bar Association in February is just the latest in a long history of institutional advertising efforts tracing as far back as the 1930s when the Saskatchewan Law Society placed a series of advertisements in a farm weekly.

A new urgency, however, now colours our collective efforts. What it means (and will mean) to be a lawyer has perhaps never been more uncertain. In other jurisdictions, new and disruptive business structures are radically changing once taken-for-granted “rules of the game” for the delivery of legal services. New technology is displacing the need for lawyers to perform certain tasks and will continue to do so. On top of this, our country is neck-deep in a seemingly perpetual access to justice crisis that has seriously undermined the public’s confidence in the ability of the legal profession to respect and protect their interests. The list of challenges, as we all know, goes on.

How should we, then, seek to understand and explain ourselves in this tumultuous time?
For the rest of the article and comments click HERE