Why judges’ political activism also hurts lawyers

The Law Times reported that an Ontario Superior Court Justice is facing a complaint by an oil sands advocacy group to the Canadian Judicial Council for his role in a public mock trial of environmentalist David Suzuki at the Royal Ontario Museum this past November 6.  The basis for the complaint is that the judge’s participation in a political event compromised his judicial impartiality.  Another judge of the same court had originally agreed to participate, but later withdrew in the face of a similar objection.

Judges have long been criticized for “judicial activism,” especially since the advent of the Canadian Charter of Rights and Freedoms.  Whatever one’s view of this subject, it is important to differentiate the judge’s role in representing community values, when interpreting law, from use of the judicial office to support a personal view on a political issue.  Judicial power resides in the authority to state what the law is and the limits of how the law can be applied.  The easily-understood reason for discouraging judges from partisan politics is that interference with constitutionally valid legislative and executive power generates a perception of bias.  It is for this reason that courts, even when they strike down laws or set aside administrative actions as ultra viresdo not formulate amendments or suggest more appropriate courses of actions.  A Canadian judge taking the stage in a political event broadcasts a personal opinion outside the context of a properly constituted, pleaded and justiciable dispute.  A perception of bias, in turn, diminishes the rule-stating authority which allows the judiciary to function.

The following anecdote illustrates a message that is more difficult to explain: why judges’ self-restraint is also important to lawyers’ function as clients’ trusted advisers and representatives.

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Plain-Language Legal Resources in French Now Just a “Cliquement” Away

Cliquez-justiceDid you know that every Ontario lawyer has an obligation to advise francophone clients of their linguistic rights in the justice system?  It will not be long, in my estimation, before a client brings a complaint or a professional liability suit against a lawyer after defeat in a civil, family or criminal matter because the client was not fully able to express himself or herself as witnesses at trial, or on the basis that a bilingual judge or jury would have decided a case differently.

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Beware of the chain-link limitation expiry

A lawyer phoned to tell me about a limitations matter.  He said that if the case was time-barred, the time expired long before the client retained him.  Then he told me there was a prior lawyer.  I told him to report himself to the Ontario Lawyers’ Professional Insurer, LawPro, just in case.  (Ouch!) Continue reading

Buttonholed by a family member?

“In times when access to justice is ever precious, isn’t it great to have a lawyer in the family?”

In the May Canadian Lawyer, the Accidental Mentor helps you navigate dealing with the clients you can’t completely fire.

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“Maintenant que l’accès à la justice soit si précieux, n’est-il pas terrible que notr’ cousin(e) est avocat(e)?”

Dans ma colonne de mai dans Canadian Lawyer, vous trouverez des conseils au sujet de l’interaction avec les clients que vous ne pourriez vraiment pas virer.

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Unbundling the civil litigation retainer

“A significant proportion of middle-income Ontarians can afford to pay for some legal services.  Developing innovative programs to harness this market, whether through unbundling, legal expense insurance, or other forms of subsidized legal services, would represent an important step forward.”

– Report of the Ontario Civil legal Needs Project, 2010, p. 56

(la version française suit)

Uncharted territory, albeit well-trodden

What is your experience so far with limited scope retainers, otherwise known as “unbundling”?  At the moment, Ontario lawyers appear to be slow adopters of this mode of legal service delivery, at least with that label.  Fingers crossed, no one has been successfully sued or disciplined for an error or omission in an “unbundled” retainer.  Look up “unbundling” in the law reports or the Law Society of Upper Canada discipline decisions and you won’t find anything – yet. Continue reading