Latest Issue of Canadian Bar Review

The latest issue of the Canadian Bar Review is up with lots of great legal ethics content. Link here.

The abstracts of three articles with a particular focus on the legal profession/legal ethics are below.

PROTECTING THE PUBLIC INTEREST: LAW SOCIETY DECISION-MAKING AFTER TRINITY WESTERN UNIVERSITY

  • Alice Woolley University of Calgary
  • Amy Salyzyn University of Ottawa

Abstract

Can current law society policy-making structures effectively assess and advance the public interest? This article considers whether law societies can fulfill their mandate to regulate in the public interest when benchers make policy decisions in hard cases, using the Canadian law societies’ response to Trinity Western University’s (“TWU”) attempt to open a law school as a case study. In our view, the TWU case highlights the structural obstacles that can impede the law societies’ accomplishment of their public interest mandate. We conclude that current law society decision-making structures create significant challenges and suggest several changes that could enhance the public interest decision-making of the law societies.

 

LEGAL ETHICS AND CANADA’S MILITARY LAWYERS

  • Andrew Flavelle Martin Peter A Allard School of Law, University of British Columbia

Abstract

Military lawyers—lawyers who are legal officers in the Canadian Forces—are virtually ignored in the Canadian legal literature. This article assesses what appear to be the most striking potential legal ethics issues facing military lawyers. Several of these issues arise because military lawyers are both lawyers and military officers at the same time, and therefore face two sets of obligations that interact in complex ways. Some issues, however, arise because of the special practice contexts of military lawyers, for example, advising military commanders on the law of armed conflict.

As context for this discussion, the article examines the relationship and tension between the Judge Advocate General and the Minister of Justice. It concludes with recommendations for amendments to the rules of professional conduct and the legislation governing the Canadian Forces to resolve these ethical issues. The article also proposes legislative amendments to clarify the relationship, and reduce the tension, between the Judge Advocate General and the Minister of Justice.

 

LOYALTY, LEGALITY AND PUBLIC SECTOR LAWYERS

  • John Mark Keyes University of Ottawa

Abstract

This article examines the duties of loyalty that public sector lawyers owe to their government clients and how considerations of legality limit this duty. It focuses on a recent decision of the Federal Court of Appeal in Schmidt v Canada involving a senior government lawyer’s court challenge to the legal position of the Minister of Justice (in whose department he was employed) on the Minister’s statutory obligation to report on the inconsistency of government bills with the Charter and the Canadian Bill of Rights.

The article argues that, while loyalty and legality are both critically important elements that shape the role of government lawyers, neither should be pursued at all costs. Loyalty is essential for maintaining the respect and confidence of public officials in the lawyers who advise them. And although their essential role is to support government adherence to law, this role is tempered by the uncertainty inherent in many aspects of law relating to matters of public policy and the role of the courts to resolve these uncertainties. Public sector lawyers must respect and support the choices of the government officials they advise in all but the clearest circumstances of illegality. The threshold for publicly attacking the legality of government decisions is very high, mirroring the standard the Federal Courts have recognized in Schmidt: no credible argument to support legality. Anything less risks eroding the influence public sector lawyers have with the officials they serve, and ultimately eroding the rule of law itself.

 

 

 

OBA Foundation – Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism – Call for Applications

CALL FOR APPLICATIONS

The OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism

 

The OBA Foundation is now accepting applications for each of these two Fellowships for the 2019-2020 year.  The deadline for applications is July 2, 2019.

 

  • $15,000 will be paid to the recipient of the OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Research.  This Fellowship is open to full-time faculty teaching at a Canadian university or college.

 

  • $5,000 will be paid to the recipient of the OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies.  This Fellowship is open to OBA members who are not full-time faculty teaching at a Canadian university or college.

 

The details of the Fellowships, including any limiting conditions, are available at: oba.org/foundation/fellowshipterms

2019 CALE Conference – Call for Proposals

As previously announced, the 2019 CALE annual conference will be hosted by the University of Windsor. It will follow its traditional schedule, starting on the evening of Thursday, October 24 and ending mid-day on Saturday, October 26, 2019.

Below are the calls for expressions of interest for the Research, Teaching and Regulation streams. If you are unclear as to whether your topic fits best the Research, Regulation, or Teaching stream of the CALE Conference, please feel free to email any of the organizers noted below and they can ensure that your content is considered for the most appropriate stream.

Research

Stephen Pitel and Pooja Parmar invite anyone interested in presenting on research topic to contact them.  They welcome proposals from junior scholars and from those working on legal ethics outside the academy.  The eventual format of the presentations will depend on, among other things, the number of proposals we accept, but we expect that each presenter would have about 15-20 minutes plus time for questions.  There is no need to have a formal paper accompanying your presentation: slides or oral remarks alone are fine.  You need not have a finished product: work in progress is welcome.

Please respond to Pooja (parmar@uvic.ca) and Stephen (spitel@uwo.ca) with expressions of interest on or before May 15, 2019.

Teaching

Richard Devlin and Andrew Martin are collecting expressions of interest for the sessions on legal ethics and professionalism teaching. They welcome all participants with something to share, especially adjuncts and part-time faculty. As with the research sessions, a paper is not required and works in progress are welcome

If interested, please contact Richard (Richard.Devlin@dal.ca) and Andrew (martin@allard.ubc.ca) by May 15, 2019.

Regulation

Amy Salyzyn and Basil Alexander and are gathering expressions of interest for the regulatory stream. They welcome expressions of interest from those working as regulators as well as practitioners and academics for presentations on topics related to the regulation of the legal profession.

Please email Basil (basil.s.alexander@gmail.com) and Amy (amy.salyzyn@uottawa.ca) with your expressions of interest for presenting in the Regulation stream on or before May 15, 2019.

Initial Feedback from CALE/ACEJ to Canadian Judicial Council on the review of the Ethical Principles for Judges

The Canadian Judicial Council (CJC) is currently undertaking a review of its Ethical Principles for Judges. More information can be found here.

In response to an invitation from the CJC, CALE/ACEJ has provided some initial feedback on the substance and process of the proposed review. For those interested in reading more, here is the letter that we have sent.

New Scholarship:The Attorney General’s Forgotten Role as Legal Advisor to the Legislature: A Comment on Schmidt v Canada (Attorney General)

CALE member Andrew Martin has a new article up on SSRN (published in UBC Law Review).

Here is the abstract:

In Schmidt v Canada (Attorney General), the Federal Court of Appeal interpreted a series of provisions requiring the Minister of Justice to inform the House of Commons if government bills or proposed regulations are “inconsistent with” the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. The Federal Court of Appeal, like the Federal Court below, held that these provisions are triggered only where there is no credible argument for consistency. In doing so, both Courts relied, in part, on a separation of powers argument. They stated that the Minister of Justice and Attorney General is not a legal advisor to Parliament. However, this statement was a legal error: federal legislation provides that the Attorney General is, as a matter of law, a legal advisor to Parliament.