M Love: Donation to charity gets Manitoba Crown fired

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Myron Love posted the story on Legal Feeds (the blog of Canadian Lawyer and Law Times), posted July 16, 2013

t may be a case that is unique in legal annals in Canada.

Sean Brennan, a Manitoba Crown prosecutor since 2000, was fired in early July after he reported a situation in which a leading Winnipeg aerospace company made a substantial donation to a charity dear to Brennan’s heart at about the same time that Brennan dropped charges against the company charged with failing to follow required safety guidelines — which resulted in a workplace accident.

“It’s an unusual case,” says Allan Fineblit, CEO of the Law Society of Manitoba. “This was not a situation where the lawyer personally benefitted. The money went to a good cause.”

Professor Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba, however doesn’t see Brennan’s actions as differing substantially from any other “garden variety” conflict-of-interest situation despite the former prosecutor not gaining anything personally.

For the rest of the story on Law Feeds, click HERE.

Legal Ethics Volume 16 Issue 1

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There continues to be strong Canadian representation and content in the latest edition of the journal “Legal Ethics” published by Hart Publishing in Oxford.

Here is a link to the Table of Contents http://www.ingentaconnect.com/content/hart/legeth/2013/00000016/00000001;jsessionid=cgiqjk09r7q1f.alexandra

It features articles by Canadians/listserv members:

“The Past, Present . . . and Future (?) of Judicial Ethics Education in Canada” by Richard Devlin (Schulich), C. Adele Kent and Susan Lightstone

“The Not Now Habit: Procrastination, Legal Ethics and Legal Education” by Annalise Acorn (Alberta) and Jason Buttuls

“John Rambo v. Atticus Finch: Gender, Diversity and Civility” by Amy Salyzyn (Yale JSD / uOttawa Sessional Professional)

Correspondent’s Report from Canada: Foreclosures, Freemen, Foreign Law Schools and the Continuing Search for Meaningful Access to Justice” Amy Salyzn (*Note all Correspondents’ Reprots are available free online).

Note that Alice Woolley is the Book Review Editor for Legal Ethics.

Members of the Advisory Board include Brent Cotter, Richard Devlin, Adam Dodek and Lorne Sossin.

Job Posting – Melbourne Law School

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Melbourne Law School

Melbourne Law School, Australia’s first all-graduate law faculty, seeks new colleagues at levels B to E who share our commitment to a highly collegial and research-intensive professional life.

We specifically encourage applications from scholars researching and teaching in the fields of civil procedure/dispute resolution, competition law, contract and remedies, employment law, intellectual property, legal ethics, property law and public law. Continue reading →

A Woolley: Supreme Court of Canada on Conflict of Interest

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Our own Alice Woolley wrote a comment for the Legal Ethics Forum on Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.

Today the Supreme Court of Canada issued its judgment in Canadian National Railway Ltd. v. McKercher LLP 2013 SCC 30.  The decision does not break new ground, but it does clarify the rules governing conflicts between two current clients of a law firm – i.e., that a law firm may not act for clients with directly adverse legal interests, even in matters that are unrelated, without the client’s consent.  That “bright line” rule had been the subject of debate and argument amongst the Canadian legal community, with the Canadian Bar Association arguing that the bright line should only create a rebuttable presumption.  The Supreme Court held that the rule was still in place.  At the same time, they arguably qualified its application insofar as they made it clear that “the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” (para 37).  In addition, they were clear that disqualification of the law firm is  not an automatic response to a finding of conflicts.  Disqualification is required where there is a risk of misuse of confidential information, to avoid the risk of impaired representation or to protect the administration of justice.  When the last of those is at stake the Court may take into account “(i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.” (para. 65)

For the rest of her post, click HERE

For the judgment, click HERE

M Mercer: The Access to Clothing Crisis

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Malcolm Mercer just posted a piece on the SLAW website.

(Before you query its relevance for the CALE website, read it – it is not really about access to clothing … )

Access to Clothing[1] is a complex issue that seems almost impossible to effectively address. Some consider it one of our most pressing issues[2]. The well-off continue to be able to afford appropriate clothing for all occasions. The least fortunate amongst us are able to access free or subsidized clothing to be worn during the most important events in their lives. The middle class cannot afford to purchase clothing at all.

To the great discomfort of businesses, restaurants and hosts and hostesses everywhere, most members of the middle-class have given up wearing purchased clothes entirely. Many people now wear home-made clothing that is barely adequate[3] for most occasions. Public policy analysts refer to this group as the self-clothed. Many other people eschew clothing entirely. These are the unclothed.

For the rest of the article, click HERE.

CALE 7th Annual Legal Ethics Teaching and Research Symposium – October, 2013

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                  CANADIAN ASSOCIATION OF LEGAL ETHICS

                  SEVENTH ANNUAL LEGAL ETHICS TEACHING AND RESEARCH SYMPOSIUM

                                                      Saskatoon, Saskatchewan

October 25-26, 2013

SAVE THE DATES!

Colleagues:

The College of Law at the University of Saskatchewan will host the Seventh Annual Legal Ethics Teaching and Research Symposium on Friday, October 25 and Saturday, October 26.  The tentative schedule for the Symposium follows.  [Unless otherwise noted, all events will take place at the College of Law on the campus of the University of Saskatchewan.] Continue reading →

A Salyzyn: Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest

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Amy Salyzyn, Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest, published on SLAW April 9, 2013.

The Canadian legal profession has never been shy to rationalize and justify its role in society. The public relations campaign launched by the Ontario Bar Association in February is just the latest in a long history of institutional advertising efforts tracing as far back as the 1930s when the Saskatchewan Law Society placed a series of advertisements in a farm weekly.

A new urgency, however, now colours our collective efforts. What it means (and will mean) to be a lawyer has perhaps never been more uncertain. In other jurisdictions, new and disruptive business structures are radically changing once taken-for-granted “rules of the game” for the delivery of legal services. New technology is displacing the need for lawyers to perform certain tasks and will continue to do so. On top of this, our country is neck-deep in a seemingly perpetual access to justice crisis that has seriously undermined the public’s confidence in the ability of the legal profession to respect and protect their interests. The list of challenges, as we all know, goes on.

How should we, then, seek to understand and explain ourselves in this tumultuous time?
For the rest of the article and comments click HERE

J Rozenburg: Judges Could Quit Over Pensions

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Monday 17 June 2013 by Joshua Rozenberg wrote a brief article for the Law Gazette in the UK, on Judges, pensions and work in retirement.  Click HERE

Stephen Pitel and Will Bentolin discuss a range of issues that arise in retirement for Judges in their article “Revising Canada’s Ethical Rules for Judges Returning to Practice” available on SSRN HERE. Continue reading →

T Taddese: Defence counsel not alter egos of clients: judge

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Posted on the Law Times June 3, 2013.

Yamri Taddese has an interesting piece on the Law Times website on the discussion in R v Faulkner that considers the relationship between client and solicitor.  Taddese’s analysis of Justice Michael Code’s judgment highlights the way in which “[t]he lawyer erred in thinking she had to get a green light from Faulkner before making every move”.

For the full article and link to the decision, click HERE.  

N Semple: Core Values: Professionalism and Independence Theories in Lawyer Regulation”

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Noel has a new article available on SSRN if you click HERE.

It has been posted to the Legal Ethics Forum; to make/view any comments, you can click HERE.

Abstract: 

North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of “lawyer,” (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? One school of thought is that lawyers have defended traditional self-regulation in order to protect their own interests. However, North American lawyers supported by functionalist sociologists respond that traditional self-regulation protects the interests of clients and the public by upholding important “core values”. This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation.