New Scholarship: Reconciliation and Ethical Lawyering

New scholarship by CALE/ACEJ Board Member Pooja Parmar

“Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence” (2019) Canadian Bar Review
ABSTRACT

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.

Federation Consultation on Proposed Amendments to the Model Code

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.

The proposed amendments can be found here: English, French. The consultation report can be found here: English, French.

Information can also be found on the Federation’s website.

The deadline for providing feedback is May 29, 2020.
The Board of CALE/ACEJ will review and consider providing feedback. Any feedback that we provide will be posted on our website.

Feedback from CALE/ACEJ to Canadian Judicial Council on its draft Ethical Principles for Judges

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.

 

New Scholarship: Full Disclosure: Family Violence and Legal Ethics

CALE member Deanne Sowter has a new article up on SSRN. Abstract is below:

Abstract

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.