Category Archives: Ethics and the Legal Profession

Unauthorized practice and access to justice

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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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Pleading Fairly

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

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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The Practice (not theory) of Avoiding Conflicts of Interest

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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Advocacy and Independence

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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