PDF version: The Top Ten Canadian Legal Ethics Stories – 2012
At the blog Legal Ethics Forum John Steele recently published a list of the top ten legal ethics stories in America in 2012 (here). With contributions from Adam Dodek (University of Ottawa), Malcolm Mercer (McCarthy Tetrault), Richard Devlin (Dalhousie), and other members of the Canadian Legal Ethics Listserv, here is my articulation of a Canadian edition:
Cases commented on: University of Alberta v Chang, 2012 ABCA 324 (CanLII) and Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center (Supreme Court of Canada Case number 34304)
The Alberta Court of Appeal decision in University of Alberta v Chang – from which the quote in the title of this post was taken (para 18) – was released November 13. The judgments appealed from consisted of cut-and-pasted excerpts taken verbatim from the written arguments of counsel for both parties and raised (in)sufficiency of reasons issues. The Court of Appeal decided the matters would have to be re-argued and re-heard in order to receive “a proper adjudication.” Coincidently, the Supreme Court of Canada heard an appeal from a different copy-and-paste judgment on November 13, although it reserved its judgment and it will probably be months before a decision in Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center is handed down. Although both are copy-and-paste judgments, Cojocaru is quite different from Chang on its facts. The trial decision in Cojocaru was almost totally copied-and-pasted, but exclusively from the plaintiff’s written arguments. The Cojocaru case therefore raised issues of bias not raised by Chang. It will be interesting to see whether the approach adopted by the Supreme Court to decide Cojocaru will define the law for all copy-and-paste judgments. It could if the court decided the source of a judge’s reasons is irrelevant to determining their sufficiency.
PDF version: The immorality (and morality) of morality-based judging
Case commented on: R v Zentner, 2012 ABCA 332
Introduction
On November 22, 2012, in its decision in R v Zentner, 2012 ABCA 332, the Alberta Court of Appeal reversed the sentencing decision of Provincial Court Judge G.K. Krinke, in which Judge Krinke imposed a conditional discharge on a funeral director convicted of fraud. The Court did so on the grounds that Judge Krinke failed to follow applicable (and binding) precedent and did not comply with the requirements of the Criminal Code. The Court held that the “legal foundation of the sentence imposed was either non-existent, or was installed upside down” (para 60).
PDF version: In Memoriam: The Law Society of Alberta Code of Professional Conduct, 1995-2011 (1995 Code)
Comment on: The new Law Society of Alberta Code of Conduct.
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.
PDF version: Lawyers regulating lawyers (redux)?
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.
