Law 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 …

The Future Harm Exception: Coercive Control As Serious Psychological Harm And The Challenge For Lawyers’ Ethics, Deanne Sowter

Dalhousie Law Journal

Can a lawyer use the future harm exception to prevent her client from coercively controlling his former spouse? Lawyers are required to keep their clients’ secrets unless an exception applies. One of those exceptions is where there is a clear and imminent risk of serious bodily harm or death to an identifiable group or person. The exception provides that serious psychological harm constitutes serious bodily harm, but there is very little guidance as to what type of threat might meet the test. Coercive control is a type of family violence whereby an abusive spouse will use a pattern of tactics …

Re-Thinking The Process For Administering Oaths And Affirmations, Colton Fehr

Dalhousie Law Journal

Courts around the world require witnesses to swear an oath to a religious deity or affirm to tell the truth before providing testimony. It is widely thought that such a process has the potential to give rise to unnecessary bias against witnesses based on their religious beliefs or lack thereof. Scholars have offered two main prescriptions to remedy this problem: (i) abolish the oath and have all witnesses promise to tell the truth; or (ii) require oath-swearing witnesses to invoke a non-specific reference to God. The former proposal is problematic as it rests on the unproven assertion that giving an …

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) …

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 …

"Uncivil By Too Much Civility"?: Critiquing Five More Years Of Civility Regulation In Canada, Alice Woolley

Dalhousie Law Journal

The author revisits criticisms of the civility movement made in an earlier paper ("Does Civility Matter?" (2008) 46 Osgoode Hall LJ 175). She argues that Canadian law societies remain concerned with lawyer incivility, despite bringing surprisingly few formal prosecutions against lawyers for incivility. In a few cases the law societies' concern can be justified insofar as lawyer incivility in those cases appears to correlate with serious professional dysfunction. Generally however, the focus on incivility is counter-productive. First, in several cases the focus on lawyer incivility elides the complex and difficult ethical issues raised by the behaviour of the lawyers in …

Service To The Nation: A Living Legal Value For Justice Lawyers In Canada, Josh Wilner

Dalhousie Law Journal

Lawyers working within a living government require a living ethics, an approach to ethics that accounts for their day-to-day professional lives within the Department of Justice Canada. There are different archetypes of Justice lawyers, and thus a living ethics is also an ethics of place, one which is sensitive to the government institutions within and for which lawyers work and the functions they accomplish. The focus of this paper, which employs a virtue ethics methodology, is primarily civil litigators. Distinguishing between values (enduring beliefs that influence action) and ethics (the application of values in practice), the paper proposes "service to …

A Conflict Is A Conflict Is A Conflict: Fiduciary Duty And Lawyer - Client Sexual Relations, Matthew Certosimo

Dalhousie Law Journal

Does a lawyer breach his' fiduciary duty by engaging in sexual activity with a client?' The Nova Scotia Barristers' Society is attempting to answer this very question with a proposed Rule in the Legal Ethics and Professional Responsibility Handbook : Chapter 24 on Sexual Relation-ships with a Client. The purpose of this paper is to review the proposed Rule in the context of a lawyer's fiduciary duty to his client.

Teaching Professional Responsibility In Law School, Alvin Esau

Dalhousie Law Journal

After eight years of teaching a three-credit course on The Legal Profession and Professional Responsibility to second- and third-year law students, I am left with a sense of great dissatisfaction with the whole enterprise. So deep is my dissatisfaction that I am questioning whether to continue or move into a different course instead. This paper is an opportunity to take stock of my experience and attempt to map out the causes of my dissatisfaction, and to seek some vision, if possible, of what the course should be about, how to teach it, and why I should bother. To give the …

Legal Competence Yesterday And Tomorrow, Leon E. Trakman

Dalhousie Law Journal

Attacks have been lodged against the legal profession for many years, indeed, since even before Shakespeare commented in Henry VI, "The first thing we do, let's kill all the lawyers." However, it is only more recently, with the growth of mass education and public awareness and with technological advances, that suspicions of the incompetence of lawyers has arisen again with a vengeance. Some would credit this new trend to the condemnation of alleged incompetence among trial lawyers by Chief Justice Burger of the American Supreme Court. But to limit the attack on lawyers to this Chief Justice is to ignore …

The Euthanasia Of Radically Defective Neonates: Some Statutory Considerations, E. H. W. Kluge

Dalhousie Law Journal

Advances in medical technology, discoveries in pharmacology, an developments in bio-engineering have made it possible for the modem physician to save and/or sustain the lives of individuals who but a few decades ago would have died. These developments have proved a mixed blessing. While on the one hand they have allowed the physician to exercise his profession more successfully, on the other they have opened up before him a domain of decision problems that few of his predecessors have had to face. The thrust of these problems may be focussed into a single question: Ought he to employ the techniques, …

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 …