Case considered: Polis v. Edwards, 2009 ABQB 520

PDF version: A Custodian of a lawyer’s practice is like a . . . [what?]

There are very few written decisions on the powers, rights and duties of custodians appointed by the Court of Queen’s Bench at the request of the Law Society of Alberta (LSA) pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Unfortunately, this decision does not add to that small body of precedents. Although the question of whether a custodian is entitled to tax the accounts of the member of the LSA whose legal business they were appointed to manage or wind up was squarely before the court, Madam Justice Jo’Anne Strekaf declined to answer the question, deciding it instead on a more factual basis. This is to be regretted, not only because there is so little law in the area, but also because, in answering these types of questions, the courts have tended to rely on interesting analogies with others in roles that require them to stand in the shoes of another person and because the answer to the question about taxation seems like an easy one.
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Case considered: Hughes (Estate) v. Brady, 2009 ABCA 187

PDF version: Opportunity Lost

In an earlier post (Conflicting Interests, Conflicting Judgments and the Ethical Obligations of Lawyers and Judges) I commented on Justice Alan Macleod’s dismissal in part of Lawrence Hughes’ lawsuit against Shane Brady and David Gnam. Mr. Hughes’ lawsuit was brought in his capacity as the Administrator ad litem of the estate of his daughter Bethany Hughes, who died of cancer in 2002. Bethany Hughes was a mature minor and had been raised as a Jehovah’s Witness. Ms. Hughes sought to resist blood transfusions necessary for the treatment of her cancer. She was unsuccessful in doing so because it was found by Justice Adele Kent that she had been subject to undue influence from those around her, such that she could not make an independent and informed choice about the matter (B.H. (Next friend of) v. Alberta (Director of Child Welfare), 2002 ABQB 371). Mr. Hughes’ lawsuit was based on a number of allegations against Mr. Gnam, Mr. Brady, the Watch Tower Bible and Tract Society of Canada and others. Mr. Hughes alleged, inter alia, that Mr. Gnam and Mr. Brady had been in an improper conflict of interest in their representation of Ms. Hughes and that they had violated obligations of confidentiality owed to her.

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PDF version: Dressing Down CPLED (Canadian Centre for Professional Legal Education)

As the warmth of spring has replaced the cold of winter, so too have our occasionally idiosyncratically attired law students been replaced by suit wearing post-graduates attending the Canadian Centre for Professional Legal Education (CPLED) course. Attendance at CPLED, and successful completion of its various assignments, is a pre-requisite for any person wishing to become a member of the Law Society of Alberta.

So too, it turns out, is donning a suit. The 2008-2009 Handbook for students attending CPLED in Alberta states:

Please wear business attire to class. You may not be allowed into class, and a note may be placed on your Law society [sic] file, if you are not dressed appropriately.

Students attending CPLED are, apparently, further advised that “business attire” means attire appropriate for students working at a large law firm, i.e., suits.

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Cases Considered: Nazarewycz v. Dool, 2009 ABCA 70.

PDF Version:  No one wins when relatives fight over an estate, lawyers behave with incivility, and judges are asked but refuse to recuse themselves

There is little in this case that shows estate work in a good light. It involves relatives accused of a multitude of sins in their fight over a deceased aunt’s property, lawyers accused of being uncivil, and judges accused of bias. All were vindicated in one way or another by the judgment of the Court of Appeal, but no one won. There was too much strife among relatives; too much manoeuvring for a piece of someone else’s pie. And when counsel and the presiding judge became embroiled in the dispute and appeared to take it personally, the legal system was also diminished.

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Considered: Maclean’s Second Annual ranking of Canadian Law Schools

PDF Version:  Macleans ranking Canadian law schools

Is this a blessing or a curse? Law school rankings have come to Canada. Brian Leiter was hired by Macleans magazine to design measurement criteria, compile data and rank the schools. This year’s ranking - the second that Leiter has done - has just been published at Macleans (here). In many ways Leiter’s rankings are a useful contribution. As he has suggested of rankings in the US, they may “unleash academic talent and ambition,” (Brian Leiter, “How to Rank Law Schools” (2006) 81 Ind. L.J. 47 at 52) and, as Macleans argues, they might provide prospective students with information about which law school they “will get the most out of.” The measures that he uses also appear generally legitimate. They have the virtue of being not (at least as far as I can imagine) susceptible to the law school gaming that Leiter and William Henderson have been critical of with respect to the US News and World Report analysis (Andrew P. Morriss and William Henderson, “Measuring Outcomes: Post-Graduation Measures of Success in the US News and World Report Law School Rankings”. Having said that, I think there are some points that Leiter might not have fully taken into account in assessing Canadian (as opposed to US) law schools. There are also some weaknesses in the data points.

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Cases Considered: Hughes Estate v. Hughes [2008] A.J. No. 739 (Q.B.) (Q.L)
Note: We will add a link when this judgment is posted on the Alberta Courts website.

PDF Version: Conflicting Interests, Conflicting Judgments and the Ethical Obligations of Lawyers and Judges

Introduction
At what point do a lawyer’s personal beliefs create a disqualifying conflict of interest? What are the obligations of a judge when a party is unrepresented by counsel? In addition to other issues (not discussed here), the Alberta Court of Queen’s Bench judgment in Hughes Estate v. Hughes [2008] A.J. No. 739 (hereinafter “Hughes Estate“) raises these problems, the first directly and the second indirectly.

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Cases Considered: Toliver v. Koepke, 2008 ABQB 37

PDF Version: Counsel Shall Not Bear Witness: Clarifying the Obligation of Counsel to Withdraw When Required to be a Witness

During divorce litigation the Plaintiff and Defendant disputed the existence of a settlement respecting distribution of matrimonial property. The dispute was directed for trial by Justice Moreau of the Alberta Court of Queen’s Bench, at which point counsel for the Defendant (who was newly appointed and therefore had not been involved in discussions related to the settlement) brought an application to remove counsel for the Plaintiff. The application was brought on the grounds that Plaintiff’s counsel was a potential witness at the trial of the settlement issue. Justice Eric Macklin of the Court of Queen’s Bench granted the application.

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Cases Considered: Dabrowski v. Robertson, 2007 ABQB 680

PDF Version: Fading to Brown: Limits on Evergreen Discovery in Alberta

This decision by Madam Justice Joanne Veit of the Alberta Court of Queen’s Bench clarifies that counsel and parties to litigation in Alberta do not currently have an obligation to provide “evergreen” oral discovery. Counsel may have an obligation to disclose “after-acquired information” if it is requested by opposing counsel, and may have an obligation to correct misleading evidence provided by a witness. However, neither of those obligations requires them or their clients to disclose that the witness’s evidence at trial will be different from that given at discovery because the witness’s memory of events has now improved. The case also clarifies that while the Law Society remains the “best authority on compliance by its members with its Code of Professional Conduct,” “a lawyer’s ethical responsibility exists at common law, independently of any Code of Conduct” (para. 22 and 26).

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