Legal Profession Commons^™

The Borders Of Responsibility, The Democratic Intellect, And Other Elephants In The Room, Liam Mchugh-Russell

Dalhousie Law Journal

What can André Zucca’s photos, taken during the Nazi occupation of Paris, tell us about the law to come or the challenges it will pose to lawyers, legal scholars and legal educators? In short: Zucca’s photos serve not just as a cipher for a past in need of reckoning but as a caution about abiding a present in which crisis is always just out of frame. In the throes of slow-motion apocalypse, what should an intellectual be? And for whom? In 80 years, when someone is rifling through an attic shoebox of our history, will we appear like the subjects …

Anchoring Lifeline Criminal Jurisprudence: Making The Leap From Theory To Critical Race-Inspired Jurisprudence, Danardo S. Jones

Dalhousie Law Journal

This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims …

Law Society Regulation And The Lawyer-Academic, Andrew Flavelle Martin

Dalhousie Law Journal

Can, and should, law societies regulate and discipline lawyers for their teaching and research? This article explores these largely overlooked but critically important questions in order to establish a foundation for further debate and discussion by lawyers, legislators, and law societies. It argues that professionalism precludes only low-value teaching and research—teaching and research with little pedagogical or epistemic value such that it is unlikely or unworthy to be protected by academic freedom—and that any chilling effect on lawyer-academics comes as much from uncertainty as from actual danger of regulatory consequences. The author concludes that law societies and other stakeholders should …

The Stubborn Persistence Of The Lawyer Exemption In Canadian Collective Bargaining Legislation, David J. Doorey

Dalhousie Law Journal

In 1948, the Canadian government introduced transformative collective bargaining legislation that would serve as a template for provincial labour law in the postwar period. However, some employees were excluded entirely from this legislation, including employees in five professions, law among them. By the 1970s, the federal government and most provinces had repealed the professional exclusion from the primary collective bargaining legislation. However, four jurisdictions—Ontario, Alberta, Nova Scotia, and Prince Edward Island (Exclusionary Provinces)—have stubbornly preserved the exclusion. This essay traces the history and justifications proffered for the lawyer exclusion from Canadian collective bargaining legislation from the 1940s to present day. …

Billing Without Bilking: Regulating Time-Based Legal Fees, Noel Semple

Dalhousie Law Journal

The billable hour is the most common method for calculating legal fees in Canada. Codes of conduct state that time-based fees must be “fair and reasonable” and “disclosed in a timely fashion,” but provide very little additional guidance. Throughout a time-based retainer, lawyers and clients are confronted with ethical ambiguity. This creates both opportunities for exploitation and conflicts of interest.

This article argues that clear rules and efficient procedures are required to determine what specific billing and disclosure practices are “fair,” “reasonable,” and “timely.” Detailed rules are already replacing vague standards for contingency fees, and time- based fees should move …

A Less Private Practice: Government Lawyers And Legal Ethics, Jennifer Leitch

Dalhousie Law Journal

Government lawyers are public servants and legal professionals. How they differ from private lawyers has much to do with whom they purport to represent and how they exercise power as a lawyer. I will look at a particular case-study—the St. Anne’s Residential school adjudication. This case study illustrates the challenges that government lawyers face in fulfilling their professional duty within a traditional private lawyer framework. St. Anne’s Residential School involved some of the most egregious physical, sexual and psychological abuse of Indigenous children between 1941 and 1972. St. Anne’s Residential School litigation is used as a cautionary (and truly tragic) …

Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond

Dalhousie Law Journal

The summary judgment is a procedural mechanism that is meant to improve the efficiency of civil litigation by allowing a judgment to be delivered in a summary way, and without the need for a full trial. It is seen as an important tool for dealing with the growing problem of access to justice in Canada. Reform to Ontario’s summary judgment rules in 2010, and a liberal interpretation of the Ontario rules in the case of Hryniak v Mauldin, 2014, have led to a greater reliance by parties on summary judgment motions in Ontario. This trend is also apparent in other …

The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …

Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

Are government lawyers different than lawyers in private practice? If so, why does it matter? While these questions have been addressed piecemeal in the Canadian legal ethics literature, Elizabeth Sanderson's Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form answer to them.1 As Adam Dodek hints in the foreword 2 and has noted elsewhere,3 the degree to which government lawyers have been overlooked in the Canadian legal literature is incongruent with their sheer numbers as a proportion of the legal profession in Canada. The need for this book is pronounced.

Of Lodestars And Lawyers: Incorporating The Duty Of Loyalty Into The Model Code Of Conduct, Colin Jackson, Richard Devlin, Brent Cotter

Dalhousie Law Journal

The "conflicts quartet" ofcases decided by the Supreme Court of Canada can be understood as part of a long-standing tension in Anglo-Canadian jurisprudence between two competing conceptions of a lawyer's professional identity In the most recent of these cases, C.N. Railway v. McKercher, the Supreme Court conclusively preferred the loyalty-centred conception of the practice of law over the entrepreneurial conception. While the Federation of Law Societies of Canada amended its Model Code of Professional Conduct in 2014 in response to the Supreme Court's decision in McKercher, this article argues that those amendments did not go far enough. The authors propose …

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa Daum Shanks

Dalhousie Law Journal

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

The Judicial Regulation Of Lawyers In Canada, Amy Salyzyn

Dalhousie Law Journal

The question of whether Canadian lawyers ought to be trusted to govern themselves has been repeatedly raised by the public, policy-makers and the academy over the past several decades. The legal profession has responded on a number of fronts, adopting what has been characterized as a "regime of defensive self-regulation." The analysis in this article complements and complicates this account by arguing that, alongside the profession's efforts at defensive self-regulation, there has been a steady stream of aggressive judicial regulation. The central argument of this article is two-fold: first, that courts have come to occupy an increasingly active role as …

Cravath By The Sea: Recruitment In The Large Halifax Law Firm, 1900-1955, Jeffrey Haylock

Dalhousie Law Journal

The traditional view is that regularized, meritocratic hiring in Canadian law firms had to wait until the 1960s, with the rise in importance of Ontario university law schools. There was, however, more regional variation than this view allows. After an overview of the rise of large firms in the U.S. and Canada, and of the modern hiring strategies (the "Cravath system") that developed in New York in the early twentieth century, the author considers whether Halifax firms were employing these strategies between 1900 and 1955. Nepotistic hiring continued unabated; however, the three large firms of the period recruited young students …

Tending The Bar: The "Good Character" Requirement For Law Society Admission, Alice Woolley

Dalhousie Law Journal

Every Canadian law society requires thatapplicants for bar admission be of "good character" The author assesses the administration of this requirement and its statedpurposes ofensuring ethical conductby lawyers, protecting the public and maintaining the profession's reputation. In particular, the premise underlying the use of the good character requirement to fulfill those purposes - that character is the "well-spring of professional conduct in lawyers" - is subjected to critical examination through the theoretical principles of Artistotelian virtue ethics and the empirical evidence of social psychology. The primary thesis of this paper is that as currently justified, administered and applied the good …

Law's Ambition And The Reconstruction Of Role Morality In Canada, David M. Tanovich

Dalhousie Law Journal

There is a growing disconnect and alienation between lawyers and the legal profession in Canada. One cause, which is the focus ofthe article, is philosophical in nature. There appears to be a disconnect between the role lawyers want to pursue (i.e., a facilitator of justice) and the role that they perceive the profession demands they play (i.e., a hired gun). The article argues that this perception is a mistaken one. Over the last fifteen years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, an ethic of client-centred zealous advocacy has slowly begun …

Breach Of Contract?: The New Economy, Access To Justice And The Ethical Responsibilities Of The Legal Profession, Richard Devlin

Dalhousie Law Journal

In the last several years, there has been a growing awareness within the legal profession that access to justice, that is, to legal advice and representation, is becoming increasingly difficult. Nowhere is this more obvious than in the cuts to legal aid programmes. The author argues that the response of the legal profession is inadequate because it remains trapped in a welfarist paradigm of legal aid that is insensitive to the impact of the new economy and the newly emergent social investment state. The author explores the possibility of an alternative response - the adoption of a mandatory pro bono …

Reconceptualizing Professional Responsibility: Incorporating Equality, Rosemary Cairns Way

Dalhousie Law Journal

Are legal professionals concerned with "doing good" or just with "doing well" financially? In an age of increasing and intensifying public scrutiny there is a need to examine and challenge the legal profession's conception of professional responsibility, and how it translates into practice. This paper expresses the concern that the profession has moved too far in the direction of a "billable hours" culture, a culture that is falling short of the legal profession's obligation as a self-regulated entity to consider and acknowledge the public interest at all points. The author calls for a broader conception of professionalism, one that encompasses …

Multi-Disciplinary Professional Practices: A Consumer Welfare Perspective, Michael Trebilcock, Lila Csorgo

Dalhousie Law Journal

Multi-disciplinary professional practices (MDPs) involving lawyers, accountants and otherprofessionals, have been the subject of considerable industrystudyand controversy in Canada and abroad. In this article, the authors evaluate the advantages and disadvantages of MDPs strictly from a consumer welfare perspective. They argue that, although MDP critics' concerns surrounding such issues as solicitor-client privilege, independence, conflicts of interest, and unauthorized practice are valid, they are often overstated and are, in many cases, encountered even today by professionals outside the MDP context. The advantages to consumers of permitting the evolution of such practices would, in any event, significantly outweigh such disadvantages. The authors'analysis …

Inside The Law: Canadian Law Firms In Historical Perspective, Douglas C. Harris

Dalhousie Law Journal

This collection of essays edited by Carol Wilton' chronicles the changing character of Canadian law firms from the "golden age" of the sole practitioner in the nineteenth century to the mega-firms of the late twentieth. Most of the essays describe the changing profession through a case study of a single lawyer or firm, and Wilton has collected a representative sample of firms from across the country. Some of the firms remained small or disappeared, while others grew into full-service corporate commercial law firms of several hundred lawyers. Most of the essays focus on the personalities of the lawyers involved, their …

A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs

Dalhousie Law Journal

Professor Arthurs argues that with the growth and diversification of knowledge, the common body of knowledge that underpins a unified profession is becoming more difficult to sustain. The desire to know, the need to know and the resources to know have divided lawyers into subprofessions, increasingly defined by the non-lawyers with whom they work and the clienteles they serve, bound togetherif at all-only by nostalgia and some residuum of self-interest.

A Comment On The Canadian Bar Association's Gender Equality Task Force Report, Dianne Pothier

Dalhousie Law Journal

The Canadian Bar Association's Gender Equality Task Force Report sets out to challenge the traditions of a male model of the legal profession. The title of the Report, Touchstones for Change: Equality, Diversity, and Accountability, announces the challenge. Although in a formal sense the legal profession has been open to women since well before the Judicial Committee of the Privy Council acknowledged women's eligibility to be Senators, the sad truth is that, in many respects, the legal profession is still not a welcoming environment to women. While women are entering the profession in greater numbers than ever before, they are …

Quebec Legal Education Since 1945: Cultural Paradoxes And Traditional Ambiguities, J Ec Brierley

Dalhousie Law Journal

Some remarkable things have occurred in Quebec legal education over the last forty years. All phases of the educational process have been the object of an official government enquiry (as a consequence of widespread student discontent that led to street demonstrations); a major sociological and futuristic study of the profession and of university studies has attempted to stimulate a major shift in the intellectual orientations of legal education to ready us for the year 2000; the loss by the Quebec legal professions of lawyers and notaries of substantial power to the profit of a government agency regulating all professions in …

Note On The Measurement Of Governmental Continuity With Its Implications For The Legal Profession, Curtis A. Amlund

Dalhousie Law Journal

Because legal practice requires attorneys to apply themselves to the specifics of individual cases, it may be useful to generalize to an idea framework whose object is to measure the level of continuity existing in the legal system within which lawyers function. The relevance is that owing to the nature of the practitioner's work it is necessary that within the governing structure of a country there be present a reasonable level of governmental continuity. The latter is germane to the practice of law, for attorneys can work with adversarial proceedings and cases at suit only if there is certainty about …

Lawyers, Courts, And The Rise Of The Regulatory State, R. C. B. Risk

Dalhousie Law Journal

In 1883, when Dalhousie Law School was created, lawyers in England, the United States, and Canada stood at the edge of a watershed. Massive changes in the law began during the late nineteenth and early twentieth centuries - changes in doctrine, institutions, practice, and ways of thinking. I cannot imagine how I might describe these changes in one short paper, even if I understood them all. Instead, I have chosen to talk about one large strand, regulation, because it is an important feature of law in the twentieth century and because it offers an opportunity to consider some distinctive characteristics …

On Criminal Procedure, Bruce P. Archibald

Dalhousie Law Journal

Quebec jurists are sometimes want to decry, and justifiably so, the absence of recognition accorded the works of their Quebec colleagues by judges, practitioners and academics in the common law provinces of Canada.' In the field of criminal law this situation exists, even though one might have thought that practical pressures to present the latest argument on a general criminal defence or some aspect of criminal procedure would drive English speaking lawyers across linguistic barriers in search of solutions. Irene Lagarde's Droit pdnal canadien2 was the standard reference source for the francophone practitioner of Canadian criminal law for years, but …

Necessity As A Justification: A Critique Of Perka, Donald Galloway

Dalhousie Law Journal

In his characteristically trenchant and influential investigation, "A Plea for Excuses",' J. L. Austin reminded us that we can and do use different strategies of defending a person when it is claimed that he has done wrong. He drew attention to two distinct tactics: One way of going about this (defending a person) is to admit that he, X, did that very thing, A, but to argue that it was a good thing, or the right or sensible thing, or a permissible thing to do . . . To take this line is to justify the action, to give reasons …