PDF version: Lawyers regulating lawyers? 

Decision considered: Law Society of British Columbia v Laarakker Law Society of British Columbia Disciplinary Hearing Reports, September 21, 2011

Introduction

A disciplinary decision by the Law Society of British Columbia does not fall within the usual mandate of ABlawg. It is not an Alberta decision, nor even a judicial one, and has no direct precedential significance for Alberta lawyers or courts. The decision warrants comment, however, because the threat it creates to the legitimacy of lawyer self-regulation applies to all Canadian law societies. Specifically, the misdirection in regulatory energy reflected by the decision of the Law Society of British Columbia in this case is something to which all Canadian law societies have shown themselves to be susceptible.

This comment is a plea to the law societies to think more carefully about the cases they pursue; to take more seriously conduct by lawyers that undermines the rule of law; and, to allow lawyers to hold each other to account in circumstances where there is a reasonable basis to allege misconduct, even if lawyers sometimes do so with “incivility”. Law societies suggest that the public will lose faith in the legal profession if we do not treat each other with courtesy and civility, perhaps thinking that our own criticisms will make the public critical, and less able to access legal services even if they need them. I want to offer an alternative suggestion: the public will lose faith in us if we silence legitimate criticism and debate, and if we do nothing about lawyers who engage in conduct that could be reasonably characterized as extortion with letterhead.

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PDF version: Conflicts of Interest and Good Judgment

Case considered: Dow Chemical Canada Inc. v Nova Chemicals Corporation, 2011 ABQB 509

Previously on ABlawg I have suggested that outcomes in conflicts cases turn more on a judge’s overall impression of the facts and the equities than on the precise articulation and application of specific rules (here). A recent judgment of the Alberta Court of Queen’s Bench aligns with this perception, insofar as the outcome of the case seems closely linked to the judge’s assessment of the good faith and propriety of the conduct of the law firm alleged to be in conflict. The case also, though, shows the continued evolution of the principles that govern conflicts of interest. Specifically, Chief Justice Wittmann’s judgment provides new analysis of the principles governing what is necessary for a client to consent to a conflict in advance, how imputation rules operate in national firms, lawyers transferring between law firms, and the intersection between law society rules and judicial determinations in assessing conflicts. In this way the judgment may indicate that contrary to my earlier suggestion, conflicts cases are in fact like other legal judgments, with outcomes determined by a complex interplay of principles, rules, facts and, above all, the “judgment” of the judge, what in the context of moral decision-making David Luban and Michael Milleman have described as the ability to identify “which principle is most important given the particularities of the situation” (”Good Judgment: Ethics Teaching in Dark Times,” (1995-96) 9 Geo J of Legal Ethics 31 at 39). In other words, it’s not so much whether judges perceive lawyers to have been “good” or not, as it is whether judges perceive lawyers to have been good enough that the applicable principles do not require that they be removed from a file. This does mean that the interplay of fact and law matters more than the precise articulation of the law - i.e., that there is some legitimacy to my general feeling that the fights between the CBA and the Federation of Law Societies over the precise wording of conflicts rules is not a very good use of anyone’s time. But it does not mean that principles are irrelevant.

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PDF version: A New Concord Between Bar and Academy? The Governor General’s Speech to the Canadian Bar Association

It is hardly an everyday occurrence for a viceroy to call publicly for a meeting with law deans to talk about legal education. But that is exactly what happened last week in Halifax. In his speech to the annual conference of the Canadian Bar Association, Governor General David Johnston spoke extremely candidly about what he saw as the challenges facing the legal profession today. He did not mince words; the picture he painted of the reality of legal practice in Canada was not soothing. And he laid a stark challenge before all of us who claim to believe that lawyers are the key to the survival of the rule of law. (more…)

PDF version: Unauthorized practice and access to justice 

Case considered: Lameman v Alberta, 2011 ABQB 396

The Beaver Lake Cree Nation have commenced an action against the federal and provincial Crowns claiming that their treaty rights have been infringed by the Crown “taking up so much of their traditional territory that [they] have no meaningful right to hunt, trap or fish” (Lameman v Alberta, 2011 ABQB 396, para 12). The Crown brought applications to strike the Nation’s actions, the hearings in respect of which were adjourned on the basis of the Nation’s impecuniosity.

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PDF version: Pleading Fairly 

Case considered: R. v. Nixon, 2011 SCC 34

Introduction

In its June 3, 2011 Throne Speech, the Canadian government announced its plan to introduce an omnibus crime bill. Based on the limited information provided in the Speech, it appears that this legislation will increase the sanctions for some crimes, and eliminate judicial discretion on some matters of criminal sentencing:

Our Government will move quickly to reintroduce comprehensive law-and-order legislation to combat crime and terrorism. These measures will protect children from sex offenders. They will eliminate house arrest and pardons for serious crimes. They will give law enforcement officials, courts and victims the legal tools they need to fight criminals and terrorists. Our Government will continue to protect the most vulnerable in society and work to prevent crime. It will propose tougher sentences for those who abuse seniors and will help at?risk youth avoid gangs and criminal activity. It will address the problem of violence against women and girls (Throne Speech, p. 12).

The Throne Speech emphasized that the purpose of this legislation would be to protect “the personal safety of our citizens” and to “place the interests of law-abiding citizens ahead of criminals” (Throne Speech, p. 12).

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PDF version: Confidentiality and Context: Lawyers’ obligations of confidentiality and loyalty when acting in both lawyer and non-lawyer roles for a client 

Case considered: Kent v. Martin, 2011 ABQB 298

Lawyers owe clients a duty of confidentiality, and also a fiduciary obligation to act in furtherance of their clients’ legal interests. The duty of confidentiality and the duty of loyalty are related. Breach of a client’s confidences without the client’s consent obviously has the potential to undermine accomplishment of the client’s legal objectives. The ability of a client to repose confidence in her lawyer has been identified by the Supreme Court as important to permit the lawyer to provide “sound legal advice” to that client (Smith v. Jones [1999] S.C.J. No. 15 at para. 46).

The specific obligations arising from lawyer duties of confidentiality and loyalty can be complex, however, particularly when a lawyer acts in more than one capacity for a client, and where the client’s interests may be both legal and non-legal. A recent Alberta case highlights these issues.

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PDF version: The Practice (not theory) of Avoiding Conflicts of Interest

Cases commented on: Novotny v. LePan, 2011 ABQB 205, R. v. Lewis, 2011 ABQB 227

As I have written about previously on this blog (e.g., here), the question of how disqualifying conflicts of interest should be identified has divided the profession and caused tension between it and the judiciary. The result has been not only dissensus, but also on occasion increasingly complicated ways of articulating when a conflict should be disqualifying, and when it should not be. The Canadian Bar Association’s Model Code of Professional Conduct, for example, has conflict of interest rules and commentaries that extend for some 27 pages (CBA Model Code).

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PDF version: Advocacy and Independence 

Case considered: Goold v. Alberta (Child and Youth Advocate), 2011 ABCA 63

Linda Goold was a lawyer on the roster of lawyers eligible to represent children through the Office of the Child and Youth Advocate. She was removed from the roster on January 15, 2008 due to allegations of unprofessionalism, and in particular allegations of persistent rudeness to caseworkers and others involved in the child welfare system. In addition, it was alleged that she did not comply with policies of the Legal Representation Service. Goold sought judicial review of this decision but her application was dismissed on the grounds of prematurity; she then sought review through the Office of the Child and Youth Advocate. By way of a letter dated October 3, 2008, Goold was advised that a review hearing would take place before the Advocate on October 30. In response to further correspondence from Goold, the Advocate advised that the process would allow her counsel to make submissions, and that he may have questions for her. On October 29, 2008 Goold advised the Advocate that she would not be attending the review hearing, requested a transcript and offered to answer questions in writing. The Advocate advised that given her non-attendance he would review her case by reviewing the documents before him, which included the affidavits prepared by Goold as part of her earlier judicial review application.

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PDF version: The True Bright Line Conflicts Rule

Case considered: Kovac v. Opus Building Corp., 2010 ABQB 366

That a “lawyer must not represent opposing parties to a dispute” (Alberta Code of Professional Conduct, Ch. 6, Rule 1) may be the most obvious, best understood and least frequently violated rule on conflicts of interest. Sometimes lawyers have problems when a joint representation properly undertaken with consent, develops unanticipatedly into a dispute. One cannot readily imagine, however, circumstances in which a lawyer would file a statement of claim that seeks relief for a party, and from a party, both at the same time.

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Case considered: R. v. B.P., 2010 ABQB 204

PDF version: Lawyer, Not Intervenor

In R. v. B.P., 2010 ABQB 204, Madam Justice Strekaf denied intervenor status to the former lawyer for the appellant accused. The accused had entered a plea to a charge of possession of a weapon for a dangerous purpose. He sought to have the plea set aside on the basis of ineffective assistance by his trial lawyer, Mr. McAviney. Mr. McAviney sought intervenor status in the appeal on the basis that the argument for ineffective assistance of counsel gave him a “direct interest in the outcome of the case” (B.P. at para. 8). He suggested that the “real lis” of the appeal was between Mr. McAviney and the accused, rather than between the accused and the Crown.

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