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Category: Ethics and the Legal Profession Page 3 of 20

The Purposes and Limits to a Client’s Right to A Review of Lawyer’s Accounts

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On August 16, 2018

In Access to Justice, Ethics and the Legal Profession

By: Clayton Swan

PDF Version: The Purposes and Limits to a Client’s Right to A Review of Lawyer’s Accounts

Case Commented On: Eryn B Logie Family Law v West, 2017 ABQB 339 (Logie QB); West v Logie Family Law, 2018 ABCA 255 (Logie CA).

Recently, the Alberta Court of Appeal addressed an important issue in lawyer-client relations: the right and ability of a client to submit their lawyer’s bill for review. The technical term for this process is ‘taxation.’ The chain of cases that I will discuss begins with a highly contested family law file and a retainer that lasted 3 years. The lawyer-client relationship ended with the client having paid 98.5% of his bill. The client applied to a Master, and received, an order allowing an extension on the time limit for reviewing a lawyer’s bill without being required to provide notice to his lawyer or having to justify his request. The lawyer appealed the order and was ultimately successful in the Court of Appeal. This blog post will focus on the reasons of the Court of Appeal and provide some commentary on what this judgment could mean for both clients and lawyers in the future.

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Regulating Lawyer-Client Sex

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On July 4, 2018

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Regulating Lawyer-Client Sex

In Canada we allow lawyers to have sex with their clients.  Or, to be precise: we do not prohibit lawyers from having sex with their clients.

Canadian law societies do regulate lawyer-client sex in a limited way.  Almost all law societies prohibit sexual harassment. And most law societies also identify lawyer-client sex as potentially creating conflicts of interest.  They identify sexual relationships with clients as the sort of thing that may “conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client” and which may “permit exploitation of the client” (FLS Model Code Rule 3.4-1, Commentary 11(d), adopted in BC, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Newfoundland, PEI and the territories).  Ontario has not adopted the FLS Commentary.  The Commentary in Ontario says instead “the judgment of a lawyer who has a close personal relationship, sexual or otherwise, with a client who is in a family law dispute is likely to be compromised” (Rule 3.4-1, Commentary 4).  Alberta has also not adopted the FLS Commentary.  Alberta’s Code does not reference sexual relationships anywhere in its conflicts rules.  Indeed, apart from its harassment rules, Alberta’s Code does not mention sex at all.

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Supreme Court Sides with Law Societies in Trinity Western University Litigation

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On June 15, 2018

In Administrative Law, Constitutional, Ethics and the Legal Profession, Supreme Court of Canada

This morning the Supreme Court of Canada released its decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII) and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (CanLII). A majority of the Court upheld the decisions of the Law Societies of British Columbia and Upper Canada to deny accreditation to or approval of Trinity Western University (TWU) law school. For readers wanting more context for the Supreme Court decisions, please see previous ABlawg posts on TWU here, and watch for analysis of the decisions on ABlawg in the coming days.

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

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On June 5, 2018

In Criminal, Ethics and the Legal Profession

By: Lisa Ann Silver

PDF Version: Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

Case Commented On: Groia v The Law Soceity of Upper Canada, 2018 SCC 27

The hot off the presses decision in Groia v The Law Society of Upper Canada confirms my belief that criminal law matters in all areas of law. Criminal law principles are foundational and have a reach beyond criminal case law. This is most evident in the rules of evidence where those principles do not distinguish between areas of law. Evidence is evidence no matter the context. It is the courtroom that gives the rules of evidence its perspective, not any particular area of law. There is a caveat to that proposition: some evidential rules blossom and find deeper meaning in the criminal law context where Charter rights provide a signpost to evidential rulings. In many ways, Groia borrows from the texture of criminal law, not only in the specific areas I will touch upon in this blog posting. The concept of fearless and resolute advocacy, peppered throughout the Groia decision, defines the criminal defence lawyer’s duty to her client. A client who faces the ultimate sanction of our justice system, a potential loss of liberty and societal condemnation. In some ways, the fact that Justice Moldaver, who authored the majority decision in Groia and began his litigation career as a criminal lawyer, references criminal law principles in the Groia judgment should not surprise anyone. Yet, to see not only outright usage of criminal principles but to also detect an almost metaphysical reliance on criminal law analysis brings a welcome richness to this decision. It also helps that the case is situated in a quasi-criminal law environment as a prosecution by the securities commission. A prosecution with a decidedly criminal law bent as Jay Naster started his career as a Crown prosecutor.

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An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of Colten Boushie

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On February 21, 2018

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of Colten Boushie

We understand the ethical duties of lawyers and judges in a criminal trial – what they ought to do, what their office requires of them. Sure, we argue about the details (e.g., me on prosecutors), but in general we know what defence lawyers, prosecutors and judges ought to do. Yet as shown by Gerald Stanley’s acquittal by a jury on charges of murder and manslaughter after his admitted killing of Colten Boushie, lawyers and judges are not the only people relevant to the functioning of a criminal trial. Juries also hear evidence and decide outcomes.

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