Malcolm Mercer posted to SLAW

A decade ago, the Supreme Court of Canada introduced a new conflicts rule into Canadian law. The rule was fashioned from the ABA Model Rules of Professional Conduct. This new “bright-line rule” generated substantial controversy within the profession. In July, the Supreme Court released its decision in McKercher which both restated and reformulated the “bright line” rule[i].

The “bright-line rule” as first articulated in Neil provided that a lawyer could not act in a matter directly adverse to the immediate interests of a current client without proper consent. The impact of this rule was said to be somewhat limited by the proposition that professional litigants, such as governments and chartered banks, could be taken as “broad-minded” such that their informed consent could be implied. Also, the Court emphasized judicial discretion as to remedy. Not all “bright-line” crossings would have consequences. For example, where a complaint was viewed by the court as tactical, a remedy could be denied.

The policy basis for the “bright-line rule” was reasonably clear. The rule guarded against impairment of client representation. The lawyer-client relationship might be compromised where a lawyer acted in a matter directly adverse to the immediate interests of his or her client. On the other hand, the lawyer might be tempted to “pull punches” so as not to offend the adverse client. The existing “substantial risk” principle might not fully protect against these risks.

For the rest of the article, click HERE

Simon Fodden posted to SLAW re. the Groia appeal.

Thanks to a comment Noel Semple on the legal ethics email list to which I belong, I was alerted to the fact that the Advocates’ Society has filed a factum as an intervener in the appeal by Joseph Groia of the finding against him of misconduct — “incivility,” principally — by the Law Society of Upper Canada. (See also the Advocates’ Society note on the matter.) The appeal has yet to be heard. The Advocates’ Society has also placed online Groia’s factum, that of the Canadian Civil Liberties Association as intervener and the respondent Law Society’s factum.

This important matter has been in the legal system for many years. Some time in 2000, during a trial in which the Ontario Securities Commission sought to convict John Felderhof of insider trading and misleading statements in the affairs of Bre-X Minerals Ltd., one of the defence counsel, Joseph Groia, made statements about the (role and) conduct of the prosecutor that were described by Justice Archie Campbell in a subsequent hearing about the trial judge’s possible loss of jurisdiction as “unrestrained attacks on [the prosecutor’s] professional integrity.” Allegations of further incivility and improper conduct as an advocate led, only very eventually, to an application before a Law Society of Upper Canada hearing panel, noticed on November 18, 2009. The allegations are detailed in the notice of application. On June 28, 2012 the hearing panel, in a very lengthy decision, found that the Society had proven all of the allegations of misconduct. And on April 18, 2013 Joseph Groia was suspended for two months and order to pay $246,960.53 in costs. Groia has appealed the finding that his conduct amounted to “incivility” and the penalty imposed.

These documents (together with the Court of Appeal comments upon the appeal of Justice Campbell’s ruling) make a significant package of materials suitable for any teaching situation concerned with professional responsibility and the limits of an advocate’s role.

For the links and comments on SLAW, click HERE

Intervention in the Groia Appeal before the Law Society of Upper Canada Appeal Panel 

The Advocates’ Society has been granted leave to intervene in the Groia matter and has now filed its factum with the Appeal Panel at the Law Society of Upper Canada.  The Society sought leave to intervene in the appeal because the reasons for decision of the Hearing Panel which convicted Mr. Groia of professional misconduct raise important issues regarding professionalism and civility and regarding the discipline process.

 For more information, go to the website here: http://www.advocates.ca/new/advocacy-and-practice/list-of-submissions.html