Further to the feedback that CALE/ACEJ sent to the CJC on December 20, 2020 regarding its draft Ethical Principles for Judges (EPJs), it sent an additional letter today with comments on the French draft EPJs.
New scholarship by CALE/ACEJ Board Member Pooja Parmar
This paper critically examines the turn to cultural competence as a response to the Truth and Reconciliation Commission (“TRC”) Calls to Action 27 and 28. I suggest that an uncritical embrace of cultural competence, as currently understood, is inadequate and might even prove to be counterproductive despite best intentions. While acknowledging that the focus on cultural competence is often driven by genuine commitments to reconciliation within the legal profession in Canada, I outline concerns which show that a limited and deficient conception of cultural competence is unlikely to assist lawyers in representing Indigenous clients better or change Indigenous peoples’ experience with the legal system more broadly. I suggest that the TRC Calls to Action demand a response that centres accountability, and that the legal profession must recognize Calls 27 and 28 as a unique opportunity to innovate and lead by rethinking legal education, competence, and ethical lawyering in a multi-juridical space such as Canada. I conclude with two suggestions for taking this conversation forward.
The Federation of Law Societies of Canada has initiated a consultation regarding proposed Model Code amendments that address issues related to the duties related to (1) non-discrimination and harassment and (2) ex parte communications with courts and tribunals.
Information can also be found on the Federation’s website.
Professors Amy Salyzyn and Richard Devlin (CALE/ACEJ President and Chair, respectively) have written a column that is now up at Slaw.ca which calls on the Canadian Judicial Council to adopt binding ethics rules (as opposed to just advisory guidelines) for federally-appointed judges in Canada.
Further to its initial feedback to the Canadian Judicial Council (CJC) regarding its review of the Ethical Principles for Judges (EPJs) (see here and here for previous correspondence), CALE/ACEJ has written to the CJC to provide feedback on the draft EPJs released on November 22, 2019. Our letter, sent today, can be found here.
CALE member and Law Society of Ontario Treasurer Malcolm Mercer has a new column up at Slaw.ca that explores the self-regulation of the Canadian legal profession.
CALE Board member Noel Semple has written a column published on Slaw.ca which discusses a case involving judicial review of a lawyer’s fee.
CALE member Deanne Sowter has a new article up on SSRN. Abstract is below:
Family violence creates ethical challenges for all family law lawyers, but it creates unique challenges for collaborative lawyers. Two of the tenets of collaborative practice are good faith and transparency. Two of the fundamental professional duties for lawyers are the duty of loyalty and the near-absolute obligation to keep client confidences. These ideas are at odds with each other, and the impact is problematic where there is family violence. This paper looks at the duties of loyalty and confidentiality, the contractual obligation in collaborative practice of full disclosure, and the presence of family violence. It looks specifically at the ethical challenges that arise when disclosing information pursuant to the collaborative practice participation agreement that create risk of harm for a spouse when there is family violence. Collaborative practice is still in its infancy in Canada, and without regulation, the options lawyers have when there are ethical challenges due to family violence are not conducive to meeting client interests, including promoting safety. Ultimately, this paper presents a solution in the form of collaborative practice legislation, amendments to the Model Code, and practice guidelines. The focus of the paper is collaborative practice, but some of this discussion is relevant to non-CP family lawyers as well, so where possible the recommendations are broad enough to include all family law lawyers.
The agenda for the 2019 CALE Annual General Meeting, which will be held on October 26, 2019 in Windsor, can be found here: 2019 AGM Agenda
An article now up on the Lawyer’s Daily website discusses the issue of retired Supreme Court of Canada judges returning to legal practice and contains commentary from CALE President Amy Salyzyn, CALE Vice-President Stephen Pitel and CALE member Gavin MacKenzie.