By: Alice Woolley

PDF Version: The Top Ten Canadian Legal Ethics Stories – 2015

Year’s end invites assessment of what has passed. For me, that includes reflection on the most significant developments in legal ethics over the year (Reflections from past years here: 2014, 2013 and 2012).

As usual, my assessment of significance isn’t one that I claim to be objective or right; it is better characterized as, “things that happened in 2015 I thought were especially interesting” (with assistance from Richard Devlin, Adam Dodek and Amy Salyzyn). Some things drop off the list that could have stayed on it; access to justice remains a crucial and unsolved problem in Canada, but fell off the list because it was more chronic than involving specific developments or discussion, at least this year. Others are on the list for the fourth consecutive year; Trinity Western’s law school was proposed in 2012, remains controversial, and law society decisions in relation to it are before several Canadian courts.

The one thing that constructing this list makes clear, however, is that the ethics and regulation of Canadian lawyers and judges remains an important and fruitful topic for our consideration: there is certainly no shortage of subject-matter.

Continue reading →

By: Alice Woolley

PDF Version: Liability and Lawyers

Case Commented On: Mraz v Herman, 2015 ABQB 573

The recent decision of Justice W.P. Sullivan in Mraz v Herman succinctly disposes of claims made against two Alberta lawyers. The first claim, based on a real estate lawyer’s failure to make proper disclosure to his client, Mrs. Mraz, failed because the lawyer had discussed matters with Mr. Mraz, whom the Court found was Mrs. Mraz’s agent (at para 18). The second claim, based on advice allegedly received from a lawyer participating in the Law Society of Alberta’s lawyer referral service, failed because the plaintiff did not provide any evidence to demonstrate that the lawyer’s conduct fell below the standard of care (at para 77).

Continue reading →

By: Alice Woolley

PDF Version: The Volkswagen Scandal: When We Ask, “Where Were the Lawyers?” Do We Ask the Wrong Question?

Every institutional ethics scandal – Watergate, the 2008 Financial Crisis, Enron, the Savings and Loan Scandal, the Daily Mail hacking scandal – prompts the question: where were the lawyers?

In its asking, “the question” expresses both faith and disappointment – faith that lawyers help ensure lawful conduct; disappointment that in this case (whichever case it is) they appear not to have done so. “The question” is, in short, fundamentally optimistic. While it acknowledges that here the lawyers failed, it rests on the premise – or at least maintains the hope – that, somehow, lawyers can do better: lawyers can prevent unlawful things from happening.

Continue reading →

By: Alice Woolley

PDF Version: The Authority of Law?

Case Commented On: R v L.L. 2015 ABCA 222

In R v L.L. 2015 ABCA 222, the Alberta Court of Appeal reversed an award of costs made against the Crown at trial. In an earlier blog post I had strongly criticized the trial judge’s costs award, and the Court of Appeal’s reversal indicates it shared my concerns. The costs award amounted to improper second-guessing of counsel (at para 13) and also an improper interference with prosecutorial discretion given the trial judge did not find that the Crown had abused the court’s process (at para 11).

I am not going to revisit those issues here. Rather, I want to consider a question that the trial judgment raises and, somewhat surprisingly, so does the Court of Appeal’s: why do courts get the law wrong? To be clear, I don’t mean – “why do they interpret the law in a way that I don’t agree with” (although obviously I sometimes think that too). I mean – what ought we to make of the fact of judicial error?

Continue reading →