Category Archives: Ethics and the Legal Profession

Advocacy and Independence

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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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The True Bright Line Conflicts Rule

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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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Lawyer, Not Intervenor

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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Reflecting on the Supreme Court’s Reassertion of Judicial Control Over Lawyer Withdrawal and Its (Non) Impact on the “Perjury Trilemma”

Cases Considered: R. v. Cunningham, 2010 SCC 10; R. v. White, 2010 ABCA 66

PDF version: Reflecting on the Supreme Court’s Reassertion of Judicial Control Over Lawyer Withdrawal and Its (Non) Impact on the “Perjury Trilemma”

In its March 26, 2010 decision in R. v. Cunningham, 2010 SCC 10, the Supreme Court of Canada rejected the position of the Yukon Territory Court of Appeal that courts have no jurisdiction to prevent counsel from withdrawing from a scheduled criminal proceeding, even if the withdrawal is only for non-payment of fees (Cunningham v. Lilles, 2008 YKCA 7). The Supreme Court affirmed the position taken by most other provincial courts of appeal, that both superior and statutory courts may require that counsel apply for leave when seeking to withdraw from scheduled criminal proceedings, and that in exceptional circumstances the application to withdraw may be denied (See R. v. C (D.D.) (1996), 110 C.C.C. (3d) 323 (ABCA); R. v. Deschamps, 2003 MBCA 116); Bernier v. 9007-1474 Québec Inc., [2001] J.Q. No. 2631 (Que. CA); Mireau v. Canada (1995), 128 Sask. R. 142 (C.A.); R. v. Brundia, 2007 ONCA 725; Contra see Re Leask and Cronin (1985), 18 C.C.C. (3d) 315 (BCSC)).

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A custodian of a lawyer’s practice is not a “mere warehouseman”

Case considered: Polis v. Edwards, 2010 ABCA 59

PDF version: A custodian of a lawyer’s practice is not a “mere warehouseman”

There are few written decisions on the rights, liberties, powers and immunities of custodians appointed by the court to wind up or manage another lawyer’s practice pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Polis v. Edwards, 2010 ABCA 59 adds to that small body of law, although its ability to do so was limited by the fact the appellants were self-represented – and apparently not very well self-represented at that. The Court of Appeal notes (at para. 4) that there were at least 23 different issues or grounds of appeal set out in the appellants’ joint factum and, although there might have been more, they were incomprehensible in law. Nevertheless, one legal question of interest to more than the parties was squarely before the Court of Appeal and that was the question of whether a custodian is entitled to tax the accounts of the member of the Law Society of Alberta (LSA) whose legal business they were appointed to manage or wind up. That question was, not surprisingly, answered in the affirmative.

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