Author: Alice Woolley Page 12 of 20

LL.M. (Yale), LL.B. (Toronto), B.A. (Toronto).
Professor. Member of the Alberta Bar.
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In the fall of 2011 the Law Society of Alberta implemented a new Code of Professional Conduct. The new Code is based on the Model Code of the Canadian Federation of Law Societies. Its implementation resulted in the repeal of the prior Law Society of Alberta Code of Conduct (“1995 Code”), the implementation of which in 1995 may be the most innovative step ever taken by a Canadian law society. The 1995 Code rejected the Canadian Bar Association Model Code, which all Canadian law societies had to that point followed, more or less, with its narrow scope and tendency towards the aspirational. Instead the 1995 Code set out clear and comprehensive guidelines establishing the essential obligations of lawyers working across practice contexts, and covering the spectrum of the tasks that lawyers do.

Lawyers regulating lawyers (redux)?

By Alice Woolley

On June 11, 2012

In Ethics and the Legal Profession

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Matter considered: Law Society of Upper Canada Complaint, Case No. 2012-105128

Introduction

On November 3, 2011 I wrote a blog on the Law Society of British Columbia’s decision to discipline Gerry Laarakker for unethical conduct (here). Laarakker had written rude things about (and to) a lawyer, M, who had sent a demand letter to Laarakker’s client. The demand letter claimed recovery of $521.97 on the basis that Laarakker’s client’s daughter had shoplifted from M’s client. In my earlier blog I suggested that directing regulatory attention at Laarakker’s incivility was a poor use of the Law Society’s regulatory resources. My argument was that lawyers who send demand letters without a legal basis for the claim made in the letter, and with no intention to pursue the claim in court, act unethically. Law societies do not, however, appear to discipline lawyers for sending improper demand letters. The only real sanction for those lawyers is social shaming and shunning. Disciplining lawyers who are uncivil in response to arguably unethical conduct takes away the only sanction on that behaviour, and may encourage it. Such discipline is, for that reason, problematic.

Mandatory Minimums and Lawyers’ Ethics

By Alice Woolley

On May 31, 2012

In Criminal, Ethics and the Legal Profession

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Statute commented on: Safe Streets and Communities Act, Bill C-10, 60-61 Elizabeth II, Assented to March 13, 2012

Introduction

This week the New York Times had an article highlighting two recent federal court decisions criticizing the effect of mandatory minimums on criminal justice. One, a sentencing memorandum by a District Court judge in U.S.A. v Gurley, USDC, Mass., May 17, 2012, criticized the diminution of the role of the jury in the criminal trial that results from plea bargaining . The judge held that jury leniency must be taken into account in determining the range of minimum sentences to be applied, but noted that the increased place of plea bargaining in the American system had rendered the role of the jury functionally irrelevant, and the judge largely so. “Prosecutors run our federal criminal justice system today. Judges play a subordinate role – necessary yes, but subordinate nonetheless. Defense counsel take what they can get” (p. 50). The other, also a sentencing memorandum but this time from the District Court of New York, USA v Dossie, USDC, NY, March 30, 2012, was even harsher in its indictment. The accused in that case was a drug user who engaged in a minor way in the sale of drugs. As summarized by Judge Gleeson, “His sole function was to ferry money to the supplier and crack to the informant on four occasions for a total gain to himself of $140” (p. 8). Unfortunately, however, Dossie’s four transactions involved quantities of crack cocaine in excess of 28 grams. As a consequence, he fell within the mandatory minimum sentence for such offences of 5 years. The prosecutor sought that sentence, and Judge Gleeson had no choice but to impose it, even though in his view “It was not a just sentence” (p. 19). Judge Gleeson noted that this result was a product of a misapplication of the original intention of the mandatory minimum sentencing laws – in which quantities of drugs sold was intended to be a proxy for individuals who were managers or leaders in the drug trade – and of excessive prosecutor zeal.

No (Soup) Practice For You!

By Alice Woolley

On May 22, 2012

In Access to Justice

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Case considered: Lameman v Alberta, 2012 ABCA 59

Introduction

On March 1, 2012 the Alberta Court of Appeal upheld the judgment of Justice Yamauchi dismissing the application of the Beaver Lake Cree Nation to have English lawyers appear on their behalf. In a blog on Justice Yamauchi’s decision, I suggested that the decision was legally sound but raised questions of public policy in relation to whether the practice of law should be so rigorously constrained. Specifically, I questioned whether “there [could] not be a more nuanced or careful approach to the provision of legal services, in which consumer and public interests are protected, but the availability of competent and helpful legal advice is not irrationally restricted.” (Unauthorized Practice and Access to Justice).

True Questions of Jurisdiction: Administrative Law’s Unicorns?

By Alice Woolley

On January 22, 2012

In Administrative Law

PDF version: True Questions of Jurisdiction: Administrative Law’s Unicorns?

Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61

Introduction

In its recent decision reversing the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (Teachers’ Association), 2010 ABCA 26, the Supreme Court of Canada made significant statements with respect to issues of administrative law. In particular, a majority of the Court held:

When an issue is not raised before an administrative decision-maker it may nonetheless be raised in an application for judicial review. A court may, however, exercise its “discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (para 22).
In such cases deference may still be granted: “Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear because the issue was not raised before the tribunal” (para 50).
In order to be deferential in such circumstances, the court may take into account the reasons that the administrator could have given had the issue been put before it. If a “reasonable basis for the decision is apparent to the reviewing court” then that will suffice (para 55). The court may also look at reasons offered by the administrative decision-maker on the issue in other cases to determine whether the decision-maker’s approach to the issue is reasonable. In some circumstances the court may remit the matter to the decision-maker to allow reasons to be prepared.
Finally, and most significantly, a majority of the Court, in reasons prepared by Justice Rothstein, called into question the ability to identify a “true question of jurisdiction” to which deference should not be granted. Justice Rothstein stated that he was “unable to provide a definition of what might constitute a true question of jurisdiction” (para 42).
Justice Rothstein held that when an administrative decision-maker interprets its home statute it is presumptively entitled to deference (para 34). Deference will not be offered where the interpretation raises constitutional questions, a question regarding the jurisdictional lines between tribunals or a question of law “that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise” (para 43). If a party claims that deference is not owed because the matter is a true question of jurisdiction, that party will “be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness” (para 39).
Finally, Justice Rothstein held that once a deferential standard has been identified, it is not necessary to question further how deferential the court should be: “Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted” (para 47).

Author: Alice Woolley Page 12 of 20

In Memoriam: The Law Society of Alberta Code of Professional Conduct, 1995-2011 (1995 Code)

Lawyers regulating lawyers (redux)?

Mandatory Minimums and Lawyers’ Ethics

No (Soup) Practice For You!

True Questions of Jurisdiction: Administrative Law’s Unicorns?