Please find attached the “in press” version of the article “Legal Professionalism and Access to Justice: Lawyers as Champions for Children” which will be published by The Verdict.
It is authored by the Honourable Donna Martinson, QC and Dr. Nancy Bell. This article makes an important contribution to the Ethics literature and Access to Justice literature by arguing about lawyers and the justice system need to do much more to represent the interests of children.
Posted to ABlawg on February 11, 2014
Case Commented on: MTM Commercial Trust v Statesman Riverside Quays Ltd.2014 ABQB 16
In his decision in MTM Commercial Trust v Statesman Riverside Quays Ltd. Justice Macleod determined whether Bennett Jones LLP could act for Matco Group, a client of many years, in a dispute with the Statesman Group, for whom Bennett Jones acted on a very limited retainer, and who had been advised that Bennett Jones would act for Matco in the event of a future dispute between the two clients. Somewhat surprisingly, Justice Macleod held that Bennett Jones could not represent Matco. In this comment I will suggest that this judgment supports the position I set out in an ABlawg post in 2011, that “in actual cases judges are less concerned with carefully articulating the applicable rules, and more concerned with reaching the right outcome on the facts, all things considered” (The Practice (not theory) of Conflicts of Interest; see also Conflicts of Interest and Good Judgment).
For the rest of the post on the ABlawg website, click HERE
Adam Dodek posted to SLAW on February 13, 2014.
For the original post and comments, click HERE
In The Lincoln Lawyer, lawyer-hero Mickey Haller learns from his father that “there is no client as scary as an innocent man”. In an interview, author Michael Connelly explained that for the lawyer defending an innocent man there can only be one acceptable outcome: Not guilty. “There can be no middle ground. No deal. No plea bargain.” According to Connelly, this places enormous pressure on the lawyer because if the lawyer fails and the client is convicted and goes to prison, the lawyer “has to live with their own guilt in knowing that an innocent man is in prison because their effort wasn’t good enough.”
If the innocent man is the scariest client for a lawyer, someone like Toronto Mayor Rob Ford may be the most dangerous client. Rob Ford has demonstrated certain qualities that should make any lawyer hesitant to take him as a client. The most critical of these are the trio of an apparent absolute refusal to listen to advice, a belief that the rules do not apply to him and a remarkable capacity for self-delusion. Together, these make for a dangerous combination.
Can a lawyer trust someone like Mayor Ford? Is Rob Ford likely to trust his lawyer? These are critical questions because the lawyer-client relationship is based on mutual trust. The Supreme Court of Canada set out the importance of this trust in articulating the lawyer as a fiduciary in R v. Neil (2002) as confirmed in Canadian National Railways v. McKercher (2013).
The client must trust the lawyer but the lawyer must also trust the client. When there is no trust between client and lawyer, it is both difficult for the lawyer to help the client and also dangerous for the lawyer.
For the rest of the post and comments, click HERE
TITLE: Judicial Ethics in a Digital Age
AUTHORS: Lorne Sossin & Meredith Bacal
SOURCE: University of British Columbia Law Review
CITED: (2013) 46 UBC L Rev 629 – 664
One thing seems to me to be clear. In facing the reality of the modern communications revolution, it is crucial that we understand the technology and how it is being used — something lawyers and judges, often castigated as Luddites, may not find easy. And having understood the new technology and its uses, we must do what we are doing today — discuss, reflect, and share experiences and best practices.
Chief Justice Beverley McLachlin1
INTRODUCTION
1 Is there anything distinct about the judicial engagement with social media that would constitute an ethical concern? If judges engage in improper communication, for example, we tend to focus on the substance of the communication, not whether it was in person, in print, over the phone, or through some other medium. With social media,2 however, we confront the question of whether the medium in some real sense may become the message as well.3 In other words, in this context, there are really two issues — one is a question of engagement itself (e.g., should a judge have a Facebook page or a blog?) while the second question is one of substance (e.g., what kinds of tweets are acceptable or unacceptable for members of a court to post?). This brief study is devoted to addressing the question of whether social media represents a field of judicial ethics in Canada or simply a new venue for existing ethical guidelines to be applied. Further, if there are new and distinct ethical quandaries to which social media gives rise, we explore how those issues should be resolved, building on the existing ethical templates both in and out of the courtroom.
2 Ethical guidelines in the context of Canadian judicial conduct are advisory in nature, and designed so that they may be adapted to various scenarios. Unlike fixed and precise rules, the guidelines are meant to be both enduring and evolving. The guidelines ought to be adaptable to developments in law, culture, and technology. That said, it is equally true that guidelines may become outmoded (indeed, the Canadian Judicial Council announced a review of the Guidelines in 2011).4 For example, rules provide judges with the tools to control the flow of information in the courtroom — to close a hearing or issue a publication ban, etc. Those rules cease to have meaning in an era when “citizen journalists” may publish information on trials in their blog, or live tweet a motion, or use their cell phones to record the events transpiring in the courtroom. “Crowdsourcing” justice has the potential to make the judge just a participant in a connective community, rather than the person in control of a legal process. Technology, in this sense, has disruptive potential in the justice system (just as it does in every other system).
3 The rise of social media will provide an unprecedented level of access by the public into the lives of judges, and by judges into the lives of everyone else. Ethical implications of social media include not simply whether judges choose to engage with various new media for connectivity, but also how they respond when they become the subject of interest and scrutiny in those media. The recent tabloid judicial investigation into the conduct of Justice Lori Douglas represents, in this sense, a particular kind of canary in a particular kind of coal mine. Soon, it will be hard to imagine a judicial appointee who does not bring significant social-media baggage of one kind or another. We believe the rise of social media represents one of those occasions where the existing guidelines are insufficient to adapt to the disruptive potential of new technology.
4 This analysis has two parts. In the first part, we explore the current ethical guidelines for federally appointed judges in Canada and how these may be adapted to the realities of social-media connectivity.5 We also highlight what we believe to be the gaps in the current ethical framework. This analysis is complemented by selected comparative insights from peer jurisdictions that face similar challenges. In the second section, we suggest some forward-oriented considerations for reform and further development both of judicial ethics and judicial discretion in the context of social media.
A McGill Law Journal podcast on this topic can be found here:
http://directory.libsyn.com/episode/index/show/mljpodcast/id/2649055
Description:
“Despite a significant place in the legal profession, little attention has been given to the unique ethical challenges of the government lawyer. We spoke with Professor Adam Dodek (University of Ottawa) and Michael Morris (Department of Justice) on their efforts to change that.”
Posted to Law Times, January 27, 2014
Law Times article mentions Stephen Pitel’s (Western) comments on in-house ethics counsel, and Amy Salyzyn’s (Ottawa, Yale) comments on regulating law firms. Comments were made at the recent Conference on Ethical Issues in the Law Firm Setting held by the University of Toronto Program on Ethics in Law and Business.
For the full story, click HERE.
[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.
[51] If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.
You will receive a 20% discount if you order with the information found in the PDF attached.
International Rule of Law and Professional Ethics Feb 2014
This book examines the interesting and relatively understudied area of the evolution of the international rule of law and the role of professional ethics. With chapters contributed by leading names in international law, this book offers analysis and recommends policies to strengthen the rule of law at international level to meet a major global governance demand in ensuring equity, justice, stability and consistency in international affairs.
Contents:
The Department of Justice has published a Values and Ethics code on their website HERE.
Chapter I – Values
The Government of Canada is committed to ensuring that the federal public sector[1] remains professional, non-partisan and ethical, and worthy of the trust and respect of Canadians. As public servants, we contribute to good governance, to democracy and to the well-being of Canadian society. We are committed to respecting the law and to upholding the highest standards of integrity and fairness.
In accordance with section 6 of the Public Servants Disclosure Protection Act (PSDPA), the Values and Ethics Code of the Department of Justice (the Code) sets out the values and ethics that guide public servants at the Department in all their professional activities. It also provides a set of guidelines and principles to support ethical behaviour and decision making for all public servants. Established in consultation with the Department’s employees and bargaining agents, it is our common guide.
The public servants at the Department are proud to work together, drawing on the richness of its diverse staff. As a group, we are conscious of the fact that Canadians expect transparency and respect for the principle of accountability from public authorities at all levels and that this has an impact on their work.
This firm commitment to the values and ethics enshrined in the Code will allow us to carry out the mandate of the Department and build a healthy and productive work environment that fosters innovation, while at the same time meeting the high expectations of Canadians. This is our collective commitment, and it is our individual responsibility.
For the full document, go to their website HERE.
Posted to ABlawg on January 3, 2014
Once again John Steele at Legal Ethics Forum has compiled his list of the top ten ethics stories of 2013 (here). As was the case last year, his list has inspired me to think about the top ten ethics stories in Canada (2012 is here). On reviewing last year’s list it is clear that a number of the stories of significance in 2012 remained important this year. As well, legal ethics in Canada continues to develop as a matter of practical and intellectual significance, with practitioners, judges, regulators and academics paying attention to the conduct and regulation of lawyers and judges.
Thanks to Professor Annalise Acorn of the University of Alberta, and Malcolm Mercer of McCarthy Tetrault, for their assistance in compiling this list.
For the full list, links and opportunity to comment, click HERE.
Canadian Association for Legal Ethics / Association canadienne pour l’éthique juridique 