A Dodek: CALE Listserv Year End Report for 2013

Posted on by

As the creator and the host of the Canadian Legal Ethics listserv, it is my pleasure to provide this year end report to the now more than 100 of you who are members of this listserv.  How did this happen?

The listserv was founded at the University of Ottawa’s Faculty of Law in October 2010 after the 5th meeting of the group variously known as the Canadian Legal Ethics teachers network and other names.  Since we don’t have much in the way of competition, there is much risk in our using many names. Let me thank my Law School, the University of Ottawa, for hosting the listserv.

At that meeting in October, we also decided to formally create an organization – the Canadian Association for Legal Ethics (CALE) who had its founding corporate meeting at ILEC 5 in Banff in July 2012.  The CALE website can be found at https://ethicsincanada.com/ and is run by Chantal Morton an expatriate Canadian legal ethics teacher now teaching in Melbourne.  If you would like to post information on the CALE website please e-mail Chantal at Chantal.Morton@unimelb.edu.au  .  Chantal often posts articles that people post on this listserv to our public CALE website.

In 2013, the listserv grew from 75 members to over 100.  If we were a company, that would be double-digit growth and we might be rich!  But, alas, we are ethicists!   This listserv is not public.  However, with more than 100 people it is hard to consider things confidential and I would caution people appropriately.  The list is predominantly made up of full-time law teachers in Canada with some part-time law teachers/ full-time lawyers as well.  There are also regulators, several judges and some other lawyers who actively contribute to conversations.   When I mention listserv members in a post I try to identify them as as such so people know.

We had a great conference in Saskatoon in October – thank you Brent Cotter.  And we have much to look forward to in 2014: ILEC VI in London June 10-12, 2014 http://www.city.ac.uk/international-legal-ethics-conference  and the CALE Conference at Western October 23-25, 2014.

Let me invite all of you to share news of your publications and of those of others.  Let me send a special invitation to our graduate / post-graduate students to send me your work and your news to share with others.

As our listserv has grown over the year, I have no longer been able to welcome and introduce each new member of the listserv.  I am proud to say that we now have representatives from every Common Law law school in the country on the listserv.  Let me give a special welcome to Mariette Brennan and Frances Chapman from Lakehead – Canada`s newest Law School which opened its doors this past September.

 

For those who tweet, you can follow some of us on twitter: @franceschapman, @noelsemple @woolleylaw, @CLPatUofT, @sfodden @pavLAWich @LeeAkazaki @AmySalyzyn, @DeanSossin, @mmercertoronto, @micahrankin, @julahughes, @dwwiseman, @ADodek.  If you are on Twitter, let me know and I will circulate – Chantal will add links to our CALE website for all.

Finally, just a reminder – you can post directly to the listserv by e-mailing cmlethics-l@listserv.uottawa.ca or replying ALL to an old message (change the subject line).  Or send to me and I’ll post.  I love to share news about you with others.   We changed the settings on the listserv this year so if you reply to a message it is sent only to the person who sent it and not to the whole list.

 

I believe that it is ethical and appropriate to wish those celebrating Christmas a Merry Christmas, a Happy Holidays to everyone and all the best to everyone for a Happy and Ethical 2014.  May the Canadian Legal Ethics community continue to grow.

Adam Dodek

Moderator, Canadian Legal Ethics Listserv
Secretary and Treasurer, Canadian Association for Legal Ethics (CALE)
Vice-Dean Research & Associate Professor
Faculty of Law, Common Law Section
University of Ottawa

A Dodek: The Ethics of Articling

Posted on by

It has long been an open secret that our articling system is deeply flawed. But is it unethical?

Articling today is a system that would be equally at home in Downton Abbey and in Booker Prize Winner Hillary Mantel’s Wolf Hall.

While I don’t think articling is inherently unethical, I do believe that it is inherently unequal and therefore creates an environment where unethical behavior is possible. Articling takes a vulnerable and powerless law student who is often carrying a significant financial debt and requires her to be at the beck and call of an experienced lawyer with largely no oversight. Desperate students will do almost anything to obtain articles and they will put up with almost anything to fulfill their articles. Some students even article for free, a possibility that exists only because articling is exempt from general wage and hour legislation that protects most employees.

Read the rest of the post on SLAW here: http://www.slaw.ca/2013/12/09/the-ethics-of-articling/

2014 CALE conference October 23 – 25 in London, Ontario

Posted on by

Please save the dates for the annual CALE conference scheduled  for October 23 – 25, 2014.  

Sessions will be devoted to teaching, research and regulatory developments.  

Thursday, October 23:  check in and dinner. 

Friday, October 24 – 25: conference with a reception and dinner on Friday. 

There is no registration fee.

More details will follow.

Canadian Judicial Council announces next steps in the review of a matter involving the Honourable Michel Déziel

Posted on by

For the original post on the CJC website, click HERE

Ottawa, 22 November 2013 –The Canadian Judicial Council announced today that a Panel of three judges will undertake further review of the conduct of the Honourable Michel Déziel.

Allegations surrounding the conduct of Justice Déziel were raised in the context of an ongoing Commission of Inquiry and were brought to the attention of Council in May 2013. In accordance with the Complaints Procedures of Council, these allegations were considered by the Honourable Edmond Blanchard, Vice-Chairperson of the Judicial Conduct Committee of Council. Having considered all the available information, including the judge’s response to the allegations, Chief Justice Blanchard has decided that this matter would benefit from further consideration by a Panel of three judges. Continue reading →

Update on Lori Douglas Inquiry: Inquiry Committee Resigns

Posted on by

From the Canadian Judicial Council website:

Ottawa, 20 November 2013 –The members of the Inquiry Committee appointed to review a matter involving Associate Chief Justice Douglas have announced their resignation, effective immediately. The Committee has released reasons for its decision, which are available on the website of the Canadian Judicial Council. In its reasons, the Inquiry Committee notes a number of factors that led to its decision, and notes that the public interest would not be served by ongoing delays, public expenditures and uncertainty about the process itself.

Currently, the Federal Court is scheduled to hear a challenge from Associate Chief Justice Douglas about a number of issues. Some questions remain about whether these proceedings will go ahead as planned.

Council’s mandate and duty is to ensure that the review of allegations against the judge can proceed in accordance with the provisions of theJudges Act and with Council’s By-laws in a fair and expeditious manner, in keeping with the public interest. In due course, another inquiry committee may be appointed in respect of Associate Chief Justice Douglas.

Contact:
Norman Sabourin
Executive Director and Senior General Counsel
(613) 288-1566 ext 302

Canadian Bar Review – two articles that deal with ethics

Posted on by

The November 2013 issue of the Canadian Bar Review features two articles that deal with ethics:

“Settlement Conferences and Judicial Role: The Scaffolding for Expanded Thinking About Judicial Ethics” by Michaela Keet & Brent Cotter

“Solicitor-Client Privilege for Ethics Counsel: Lessons for Canada from the United States” by Stephen G.A. Pitel & Jordan McKie

The table of contents is at the link below but I think the articles themselves require a subscription to access.

http://www.cba.org/cba_barreview/Search.aspx?VolDate=11/01/2013

Lawyer Deregulation for Access to Justice – Professionalism Speakers Series – Ottawa

Posted on by

“Lawyer Deregulation for Access to Justice: Silver Bullet or Blank Round? What does access to justice have to do with legal services regulation?”

Link to the Ottawa website is HERE

Noel Semple
Post-Doctoral Fellow at the University of Toronto’s
Centre for the Legal Profession

When: October 30, 2013
Room number: FTX 351

This program has been accredited by the Law Society of Upper Canada for 1.5 Professionalism Hours

** Lunch included – All are welcome **

*Photos may be taken at this event and it may be recorded for use on Faculty of Law websites/publications.

M Mercer: A Bright Line Rule of Limited Scope

Posted on by

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

S Fodden:

Posted on by

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