Category Archives: Ethics and the Legal Profession

Unhappy differences arise in R. v. Cunningham

Case considered: R. v. Cunningham, 2008 YKCA 7

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On November 17, 2009 the Supreme Court of Canada will hear argument in R. v. Cunningham, an appeal of a judgment by the Yukon Territory Court of Appeal released June 25, 2008. If the Court upholds the YKCA decision in Cunningham it would change the law in many other Canadian provinces, including Alberta (R. v. D.D.C., (1996) 43 Alta. L.R. (3d) 1 (C.A.), generally referred to as Ferguson), Saskatchewan (Mireau v. Canada et al., (1995) 128 Sask. R. 142 (C.A.)), Manitoba (R. v. M.B.D., 2003 MBCA 116) and Ontario (R. v. Chatwell, (1998) 38 O.R. (3d) 32 (C.A.)).

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

Case considered: Polis v. Edwards, 2009 ABQB 520

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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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Opportunity Lost

Case considered: Hughes (Estate) v. Brady, 2009 ABCA 187

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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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Dressing Down CPLED (Canadian Centre for Professional Legal Education)

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

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

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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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