For the last two years I have written up the Top 10 Canadian legal ethics stories for the prior year (2013 and 2012). This year I initially wondered whether it would be possible to identify 10 important legal ethics stories. It wasn’t. Moreover, it is fair to say that some of these stories now justify the descriptor “saga,” making their third consecutive appearance on the list.
It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the Top 10 descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “10 Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with Top 10.
1. Trinity Western’s approval revoked
On Dec. 11, 2014 the British Columbia Minister of Advanced Education revoked the consent it had previously granted to Trinity Western University to open a law school. It did so based on the “current uncertainty over the status of the regulatory body approval” for the law school, arising from decisions by the law societies in British Columbia, Ontario, New Brunswick, and Nova Scotia either not to approve the admission of graduates of TWU or to do so only conditionally.
The Trinity Western law school proposal is one of the legal ethics sagas. It has raised significant issues in legal ethics, particularly in relation to the effectiveness of the Federation of Law Societies (whose approval process was in the end not treated as binding or even given much weight); the scope of anti-discrimination and protection of diversity with respect to admission to the profession; the role of the law societies in determining that scope and protection (as opposed to, say, human rights commissions); the process used by law societies to consider Trinity Western’s application; and, finally, the role of law societies in regulating the content of legal education.
2. Settlement of the complaint against Lori Douglas
On Nov. 24, 2014 the Canadian Judicial Council stayed its investigation into the conduct of Associate Chief Justice Lori Douglas in consideration for her agreement to retire effective May 2015. The investigation into ACJ Douglas had been ongoing for four years and cost approximately $3 million. The legitimacy of the investigation was – and continues to be – fiercely criticized. Most recently critics focused on the CJC’s insistence on viewing the pictures of ACJ Douglas, even though the basic content of those pictures was widely known.
The settlement agreement prevents the continuation of proceedings that seemed most unlikely to reach any satisfactory and fair conclusion given the muddied issues they raised.
The agreement also means, however, that the significance of online sexual pictures to future judicial applicants remains unclear. From a policy perspective, given the increased prevalence of such pictures in a digital age, what would the effect of compulsory disclosure of such pictures be on applications by women to the bench relative to men over the longer term? These are questions that merit further consideration and clarification.
3. The Canadian Bar Association Futures Report
In August, the CBA published the report of its Legal Futures Initiative, “Transforming the Delivery of Legal Services in Canada.” The result of extensive consultation and research, the report offered a considered assessment of issues and challenges facing the legal profession, and made recommendations for changes to the regulation and education of Canadian lawyers. The most controversial of those recommendations are those supporting liberalization of the legal services market and that lawyers be permitted to practice in alternative business structures.
The merits of the CBA’s proposals can be debated. But of independent significance is the fact that the CBA has been willing to engage in this process, and to take positions that challenge the regulatory status quo. There is nothing modest or timid about the CBA’s approach. When faced with a similar opportunity the American Bar Association ducked, declining to consider any liberalization to the rules preventing non-lawyer ownership. I am not an impartial observer — I was a member of the CBA’s futures committee – but in my view the CBA is to be commended for its initiative and openness to new ways of regulating the profession.
4. Alternative business structures
As noted, one of the key recommendations of the CBA was to permit alternative business structures, law firms that are owned, at least in part, by non-lawyers. In September the Law Society of Upper Canada released its discussion paper on ABS seeking input from its membership.
The debate around ABS focuses on their risks and rewards, with opponents suggesting that ABS pose significant risks to lawyers’ integrity and their provision of services to clients, while creating few real benefits to access to justice. Proponents suggest that there is evidence to support ABS’s positive effect on access to justice and that, in any event, the risks posed by ABS to the legal profession ought not to be overstated. The questions now are whether any law society will be willing to proceed with ABS, if so which one and if so will others follow suit?
5. Jian Ghomeshi’s statement of claim
The serious criminal allegations against Jian Ghomeshi were one of the top news stories in Canada in 2014. But the allegations also had a legal ethics dimension. Specifically, was it ethical to file a statement of claim that was arguably meritless and may have been intended to suppress legal claims against Ghomeshi?
6. British Columbia regulatory task forces
As noted, the CBA Futures Project recommended the adoption of compliance-based entity regulation. In 2012, the B.C. Legal Profession Act was amended to give the Law Society of British Columbia the authority to regulate law firms. The LSBC has struck a task force to “recommend a framework for the regulation of law firms.”
Of perhaps even greater note, however, is that in December, B.C.’s legal services regulatory framework task force recommended that “the Benchers seek an amendment to the Legal Profession Act to permit the Law Society to establish new classes of legal service providers to engage in the practice of law, set the credentialing requirements for such individuals, and regulate their legal practice.”
7. A2J
Access to justice continues to be a significant issue for Canadian lawyers and the public, and for good reason. Two major reports on access to justice were published in 2013 and, as indicated by the B.C. task forces, the CBA Futures Report and the debate over ABS, legal regulators and the legal profession are taking the access to justice problem seriously. They are trying to remove barriers to the provision of legal services and to facilitate access to lawyers and legal services. Until some material progress is made, however, access to justice will properly remain a top legal ethics story in Canada.
8. The Boyle recusal
On Sept. 4, Tax Court Justice Patrick Boyle wrote a 47-page decision recusing himself from further participation in a matter in which he had previously issued a decision that was now under appeal to the Federal Court of Appeal. He did so on the basis of submissions made by the appellants and, in particular, what he felt were unfair allegations that he had been “untruthful, dishonest and deceitful” in his judgment, and what were “clear untruths” about him. Some commentators have suggested that the factum of the appellants was not particularly unusual or out of order while others have suggested it was “unusually aggressive” and contained “ad hominem” attacks.
Whatever the ethics of counsel’s conduct, however, Boyle’s decision to engage with the merits of the case in a recusal decision raises its own ethical problems. The effects of Boyle’s judgment is now before the Federal Court of Appeal, which recently allowed taxpayer’s counsel to amend its grounds of appeal to include the question of whether the reasons for recusal compromised “the appearance and reality of a fair process in this case such that a new trial is necessary.” In his decision Justice David Stratas said “the recusal reasons, by responding to the appellant’s memorandum of fact and law, depart from the norm.
9. The collapse of Heenan Blaikie
On Feb. 5, 2014 Heenan Blaikie, announced its dissolution. Even though the firm’s economic foundations had been relatively solid, a diminution in partner earnings early in the year led to a “run on the bank” with 30 partners leaving and the firm dissolving soon after.
From the distance of a few months the broader significance of Heenan’s collapse seems less clear; it may have been a product of broader challenges and issues in the legal services market, but it may also simply reflect pathologies specific to Heenan at that time. A determination of its broader significance perhaps awaits future events.
10. The LPP path to articling
2014 saw the first entrants into Ontario’s new alternate path to articling, the Law Practice Program. The LPP has been praised as opening up the profession to law school graduates who would otherwise be precluded from practice.
The LPP has also, however, been subject to criticisms in relation to the significant increase in articling fees associated with the program, the unavailability of student loans for participants and the fact that students are not always paid for practicum placements. Some critics, as evidenced by the comments to the article on Articling fees and access to justice, also complain that the LPP is enabling an unjustified expansion in the number of lawyers in Ontario.
As a final note, on Dec. 27 Canada lost a legal icon with the death of Eddie Greenspan. For good and occasionally not so good reasons, Greenspan was an outsized figure in the Canadian profession and in relation to issues of legal ethics. In the casebook I co-edit and co-author he appears in a less positive light from time to time. But Greenspan was also an ardent defender of Joe Groia in relation to the Law Society of Upper Canada’s prosecution of Groia for incivility and actively worked to improve the quality of the Canadian legal system, both for his own clients and more generally. . . .
This is an edited version of University of Calgary law professor Alice Woolley’s Top 10 legal ethics post from Ablawg. Click here to read the full version.
It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the Top 10 descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “10 Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with Top 10.1. Trinity Western’s approval revoked
On Dec. 11, 2014 the British Columbia Minister of Advanced Education revoked the consent it had previously granted to Trinity Western University to open a law school. It did so based on the “current uncertainty over the status of the regulatory body approval” for the law school, arising from decisions by the law societies in British Columbia, Ontario, New Brunswick, and Nova Scotia either not to approve the admission of graduates of TWU or to do so only conditionally.
The Trinity Western law school proposal is one of the legal ethics sagas. It has raised significant issues in legal ethics, particularly in relation to the effectiveness of the Federation of Law Societies (whose approval process was in the end not treated as binding or even given much weight); the scope of anti-discrimination and protection of diversity with respect to admission to the profession; the role of the law societies in determining that scope and protection (as opposed to, say, human rights commissions); the process used by law societies to consider Trinity Western’s application; and, finally, the role of law societies in regulating the content of legal education.
2. Settlement of the complaint against Lori Douglas
On Nov. 24, 2014 the Canadian Judicial Council stayed its investigation into the conduct of Associate Chief Justice Lori Douglas in consideration for her agreement to retire effective May 2015. The investigation into ACJ Douglas had been ongoing for four years and cost approximately $3 million. The legitimacy of the investigation was – and continues to be – fiercely criticized. Most recently critics focused on the CJC’s insistence on viewing the pictures of ACJ Douglas, even though the basic content of those pictures was widely known.
The settlement agreement prevents the continuation of proceedings that seemed most unlikely to reach any satisfactory and fair conclusion given the muddied issues they raised.
The agreement also means, however, that the significance of online sexual pictures to future judicial applicants remains unclear. From a policy perspective, given the increased prevalence of such pictures in a digital age, what would the effect of compulsory disclosure of such pictures be on applications by women to the bench relative to men over the longer term? These are questions that merit further consideration and clarification.
3. The Canadian Bar Association Futures Report
In August, the CBA published the report of its Legal Futures Initiative, “Transforming the Delivery of Legal Services in Canada.” The result of extensive consultation and research, the report offered a considered assessment of issues and challenges facing the legal profession, and made recommendations for changes to the regulation and education of Canadian lawyers. The most controversial of those recommendations are those supporting liberalization of the legal services market and that lawyers be permitted to practice in alternative business structures.
The merits of the CBA’s proposals can be debated. But of independent significance is the fact that the CBA has been willing to engage in this process, and to take positions that challenge the regulatory status quo. There is nothing modest or timid about the CBA’s approach. When faced with a similar opportunity the American Bar Association ducked, declining to consider any liberalization to the rules preventing non-lawyer ownership. I am not an impartial observer — I was a member of the CBA’s futures committee – but in my view the CBA is to be commended for its initiative and openness to new ways of regulating the profession.
4. Alternative business structures
As noted, one of the key recommendations of the CBA was to permit alternative business structures, law firms that are owned, at least in part, by non-lawyers. In September the Law Society of Upper Canada released its discussion paper on ABS seeking input from its membership.
The debate around ABS focuses on their risks and rewards, with opponents suggesting that ABS pose significant risks to lawyers’ integrity and their provision of services to clients, while creating few real benefits to access to justice. Proponents suggest that there is evidence to support ABS’s positive effect on access to justice and that, in any event, the risks posed by ABS to the legal profession ought not to be overstated. The questions now are whether any law society will be willing to proceed with ABS, if so which one and if so will others follow suit?
5. Jian Ghomeshi’s statement of claim
The serious criminal allegations against Jian Ghomeshi were one of the top news stories in Canada in 2014. But the allegations also had a legal ethics dimension. Specifically, was it ethical to file a statement of claim that was arguably meritless and may have been intended to suppress legal claims against Ghomeshi?
6. British Columbia regulatory task forces
As noted, the CBA Futures Project recommended the adoption of compliance-based entity regulation. In 2012, the B.C. Legal Profession Act was amended to give the Law Society of British Columbia the authority to regulate law firms. The LSBC has struck a task force to “recommend a framework for the regulation of law firms.”
Of perhaps even greater note, however, is that in December, B.C.’s legal services regulatory framework task force recommended that “the Benchers seek an amendment to the Legal Profession Act to permit the Law Society to establish new classes of legal service providers to engage in the practice of law, set the credentialing requirements for such individuals, and regulate their legal practice.”
7. A2J
Access to justice continues to be a significant issue for Canadian lawyers and the public, and for good reason. Two major reports on access to justice were published in 2013 and, as indicated by the B.C. task forces, the CBA Futures Report and the debate over ABS, legal regulators and the legal profession are taking the access to justice problem seriously. They are trying to remove barriers to the provision of legal services and to facilitate access to lawyers and legal services. Until some material progress is made, however, access to justice will properly remain a top legal ethics story in Canada.
8. The Boyle recusal
On Sept. 4, Tax Court Justice Patrick Boyle wrote a 47-page decision recusing himself from further participation in a matter in which he had previously issued a decision that was now under appeal to the Federal Court of Appeal. He did so on the basis of submissions made by the appellants and, in particular, what he felt were unfair allegations that he had been “untruthful, dishonest and deceitful” in his judgment, and what were “clear untruths” about him. Some commentators have suggested that the factum of the appellants was not particularly unusual or out of order while others have suggested it was “unusually aggressive” and contained “ad hominem” attacks.
Whatever the ethics of counsel’s conduct, however, Boyle’s decision to engage with the merits of the case in a recusal decision raises its own ethical problems. The effects of Boyle’s judgment is now before the Federal Court of Appeal, which recently allowed taxpayer’s counsel to amend its grounds of appeal to include the question of whether the reasons for recusal compromised “the appearance and reality of a fair process in this case such that a new trial is necessary.” In his decision Justice David Stratas said “the recusal reasons, by responding to the appellant’s memorandum of fact and law, depart from the norm.
9. The collapse of Heenan Blaikie
On Feb. 5, 2014 Heenan Blaikie, announced its dissolution. Even though the firm’s economic foundations had been relatively solid, a diminution in partner earnings early in the year led to a “run on the bank” with 30 partners leaving and the firm dissolving soon after.
From the distance of a few months the broader significance of Heenan’s collapse seems less clear; it may have been a product of broader challenges and issues in the legal services market, but it may also simply reflect pathologies specific to Heenan at that time. A determination of its broader significance perhaps awaits future events.
10. The LPP path to articling
2014 saw the first entrants into Ontario’s new alternate path to articling, the Law Practice Program. The LPP has been praised as opening up the profession to law school graduates who would otherwise be precluded from practice.
The LPP has also, however, been subject to criticisms in relation to the significant increase in articling fees associated with the program, the unavailability of student loans for participants and the fact that students are not always paid for practicum placements. Some critics, as evidenced by the comments to the article on Articling fees and access to justice, also complain that the LPP is enabling an unjustified expansion in the number of lawyers in Ontario.
As a final note, on Dec. 27 Canada lost a legal icon with the death of Eddie Greenspan. For good and occasionally not so good reasons, Greenspan was an outsized figure in the Canadian profession and in relation to issues of legal ethics. In the casebook I co-edit and co-author he appears in a less positive light from time to time. But Greenspan was also an ardent defender of Joe Groia in relation to the Law Society of Upper Canada’s prosecution of Groia for incivility and actively worked to improve the quality of the Canadian legal system, both for his own clients and more generally. . . .
This is an edited version of University of Calgary law professor Alice Woolley’s Top 10 legal ethics post from Ablawg. Click here to read the full version.
