The Power of Perspectives

The Canadian Bar Association

Gavin & Brooke MacKenzie

Conduct becoming

Working through ethical dilemmas

By Gavin & Brooke MacKenzie June 18, 2018 18 June 2018

Working through ethical dilemmas

 

This spring, litigators from across the province gathered at a Law Society of Ontario roundtable to discuss the complex issues that arise in practice surrounding ethics in litigation. As co-chairs of the roundtable, we organized a session to work through a series of mock problems, raising issues like joint retainers, the duty of candour, preparing clients as witnesses, and working with expert witnesses. Over the course of the subsequent panel discussion, participants shared and debated their findings and practical tips. Of the many valuable takeaways, here are three that we thought were most worth sharing.

1. There is value in working through professional conduct issues with colleagues

Although the rules of professional conduct may appear straightforward, it can be difficult to apply them to a real problem in your practice – especially if you are personally invested in the matter. It’s also easy to lose perspective when you’re used to advocating for your client, or when there is tension between your personal interests and professional obligations. 

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Conduct becoming

Have legal regulators lost sight of the public interest?

By Gavin & Brooke MacKenzie March 10, 2018 10 March 2018

Have legal regulators lost sight of the public interest?

 

In December, a British disciplinary tribunal suspended a barrister for six months because he gave £2,300 ($3,930 CDN) to a legal aid client who had told him that she could not afford food or electricity. The barrister, who had recently reported earnings of £787,000 ($1.3-million CDN) a year from legal aid, told the disciplinary panel that he wanted to help the woman, who struggled with drug addiction, “turn her life around.”

The panel found that the barrister had compromised his independence, and that his conduct was “likely to diminish the trust and confidence which the public place in the profession”.

The disciplinary tribunal’s decision can be explained in part by the differences between the British and Canadian systems of legal regulation; in Britain the bar has traditionally enforced a more stringent view on the distance required between lawyers and clients. The penalty was also influenced by the panel’s finding that the barrister had failed to co-operate with the regulator.

Nevertheless, the panel’s conclusion is dubious or worse. The barrister’s decision to give money to a struggling client for food and shelter was “likely to diminish the trust and confidence which the public place in the profession”? Really? The opposite is true. There may have been a technical breach here, but given lawyers’ longstanding public image problem, such good faith acts of generosity are likely to improve the public’s trust in our profession.

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Conduct becoming

Ontario’s Statement of Principles: overreach or overdue?

By Gavin & Brooke MacKenzie December 8, 2017 8 December 2017

Ontario’s Statement of Principles: overreach or overdue?

 

Ontario’s Law Society has sparked a vigorous debate over its decision to require lawyers, including retired and non-practising members, to adopt a Statement of Principles. Lawyers must declare that they have an “obligation to promote equality, diversity, and inclusion generally, and in their behaviour towards colleagues, employees, clients, and the public”. Our columnists weigh in.

Gavin: The Law Society’s express purpose is to “accelerate a culture shift” and to educate lawyers about their obligations to bring about “cultural and attitudinal change”. But aren’t principles personal? Don’t lawyers have the right to think and speak for themselves?

Brooke: Absolutely – but I’ve found the opposition to the Statement of Principles to be hyperbolic, and to misconceive both the problem and the proposed remedy. Queen’s Professor Bruce Pardy wrote in an op-ed in the National Post that upon learning about it he felt the need to check his passport to make sure he wasn’t in North Korea. “Godwin’s Law” states that once someone invokes an analogy to Nazi Germany, they lose the argument. I think that should apply equally to comparisons to North Korea and Orwell’s 1984. I also have concerns, but we need to do what we’re trained to do as lawyers: consider the intent of the policy, examine the facts, and then get into a fight about it.

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Conduct becoming

Should referral fees be regulated or prohibited?

By Gavin & Brooke MacKenzie September 15, 2017 15 September 2017

Should referral fees be regulated or prohibited?

 

In 2002, the Law Society of Upper Canada amended its Rules of Professional Conduct to allow lawyers to pay referral fees to other lawyers. The rationale was that referral fees would encourage lawyers to refer work to lawyers better able to serve a client’s interests, reducing the likelihood that the lawyer would accept a retainer to act on a matter that may be beyond his or her ability. Ultimately, it would be a “win-win-win”: the referring lawyer would receive a payment, the referee lawyer would obtain a new client, and the client would be served by a lawyer well-qualified to act.

Conditions were put in place to prevent abuses. The referral had to be made because of the expertise of the referee lawyer. Referral fees could not be paid where the referral was made because of a conflict of interest. The referral fee had to be reasonable and could not increase the total fee charged to the client. The client had to be informed about the arrangement, and consent.

When the Federation of Law Societies developed its Model Code of Professional Conduct, it adopted the Ontario rule on referral fees. Today the Ontario rule is in place in all Canadian common law jurisdictions.

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Conduct becoming

First come, first served: Revisiting the cab rank rule

By Gavin & Brooke MacKenzie June 16, 2017 16 June 2017

First come, first served: Revisiting the cab rank rule

 

Lawyers agree about the importance of competent legal representation for accused persons in criminal matters even when the charges relate to the worst offences imaginable. But do Canadian lawyers have any responsibility to represent unpopular parties in civil cases?

In Britain, barristers are bound by the “cab rank” rule: barristers, like taxis, must accept work on a ‘first-come, first-served’ basis. Barristers must accept matters appropriate for their experience irrespective of the client's identity, the nature of the case, or “any belief or opinion which [they] may have formed as to the character, reputation, cause, conduct, guilt, or innocence of the client”.

Canadian lawyers are not subject to the cab rank rule per se. We are entitled – in criminal and civil cases alike – to decline a retainer because we disagree with a client’s cause or conduct, but our regulators discourage this. 

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Gavin MacKenzie and Brooke MacKenzie practise together in Toronto as MacKenzie Barristers, with a focus on civil appeals and professional responsibility issues. You can find them at 
www.mackenziebarristers.com. Gavin MacKenzie et Brooke MacKenzie pratiquent ensemble sous la raison sociale MacKenzie Barristers à Toronto. Ils sont spécialisés dans la responsabilité professionnelle et la plaidoirie en appel. On les trouve au www.mackenziebarristers.com.

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