From Occupational Hazards and Tips

A Very Canadian “Mexican Standoff” of an American Contest between Executive and Judicial Power

Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action.  At least, that is what the U.S. courts have subsequently repeated.  In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S. Supreme Court were sharply defined.  Was Marbury a boundary wall it built to assert its jurisdiction, or one behind which it retreated? One criticism that can be leveled against the Marbury court was that it institutionalized a mechanical, semi-democratic vision of judicial action.  American governments now operate within a constitution…

Judicial Ethics in Real Time: Commentary D.9 to Principle D.3 of Ethical Principles for Judges

This morning, the Chief Justice of Canada responded to a statement from the Prime Minister’s Office that, last summer, she initiated a call to the Minister of Justice regarding the nomination of Justice Marc Nadon.  Media reports have suggested the eruption of a very public battle of statements.  As lawyers, we respect and honour our Chief Justice, and take her at her word.  As I read her office’s release, I wondered: What could have possessed her? The press release issued by the Chief Justice’s office described the July 31, 2013, interaction with the Minister thus: On July 31, 2013, the Chief Justice’s office called…

“Micro-ethical” issues key to teaching professionalism

In a much-anticipated research paper on training lawyers to be ethical professionals, Shelley M. Kierstead of York University’s Osgoode Hall Law School and University of Toronto’s Erika Abner have published groundbreaking work in “Learning Professionalism in Practice.”  How and where do lawyers learn to be professional?  What are the modes of learning?  Is professional ethics the responsibility of law society regulators, the legal academy, or the profession?  Can ethical lawyers bring “swimmers” onto their lifeboat? The paper, funded by a fellowship grant from the Chief Justice of Ontario’s Advisory Committee on Professionalism (now the OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism),…

2013 : The year of ethical lapses among high-performing professionals

If there has been a mystery from the events of 2013, it is the emergence in Canadian public life of respected professionals as instigators of questionable deals and conflicts of interest.  The intrigue surrounding Senator Mike Duffy captured national attention, but we were also mindful of the fact that, in Québec, it was getting hard to find anyone with a clean past to step into the glare of municipal politics.  In law, we ended the year with the disappearance and death of Javed Heydary, and the trail of missing millions from his trust account. What is common to the cast…

Aucune substitution pour la lecture ~ Read what it says, not what you think it says

Last week, was speaking to a lawyer about a document, when I sensed he hadn’t even read it. It was in French.  ‘How’s your French,’ I asked.  ‘Awful,’ he replied.  ‘I guess you haven’t read it,’ I continued.  ‘I expect it says what you say it says,’ he explained.  Alas. In the final article in the Accidental Mentor, I share my memory of the late George Miller, an extraordinary lawyer.  He taught me never to interpret a document without reading it first.  Simple enough?  How many times have you broken that rule?  Scan or click on the QR Code above-right, to…

Lawyers as the public conscience of their clients

On October 16, as part of their joint professional development seminar, Current Topics in Ethics & Professionalism, the Toronto Lawyers Association and University of Toronto’s Centre for the Legal Profession will be staging “A Great Debate:  Should Lawyers Consider Themselves the Moral Conscience of their Clients?”  I will be debating in favour of the resolution. If you are attending and want to prep for the debate, or can’t make it, read my September, 2013, column in the Canadian Lawyer entitled “Lawyers and their demons.” (click on graphic, above right) ~  ~  ~ Le 16 octobre, l’Association des juristes de Toronto et le Centre…

Avoir le dernier mot, qu’importe? ~ Does getting in the last word matter?

French Presidential Candidate Ségolène Royal tries too hard to hang on to the last word.  La candidate Ségolène Royal essaie trop fort d’avoir le dernier mot. (Watch how many times during the segment 1:50-3:00 she points her finger at him.  Durant le segment 1:50-3:00, combien de fois lui montre-t-elle son doigt?) Les avocats et les avocates se luttent d’avoir le dernier mot, que ce soit une dispute, ou même une collaboration.  Mais voilà le piège: le dernier mot semble être l’opportunité ultime de persuader, et ce peut ouvrir à une contre-attaque pure et élégante.  De toute façon, la qualité du…

Mentoring Site Launched for Real Estate Lawyers by OBA, CDLPA and ORELA

Real Property Lawyers: Are you in need of a mentor?  Would you mentor someone if you had the time?  Here is a possible solution for both.  The Working Group on Lawyers and Real Estate has undertaken a mentoring initiative on their web site, http://www.lawyersworkinggroup.com.  This mentoring initiative is set up so that everyone can participate with little effort.  Go to the site, see the question of the month, click on the suggested answers provided or add a comment and you’re done. The Working Group encourages all Ontario real estate lawyers to visit the web site regularly or sign up for the…

Removing exceptions for better legal drafting ~ Supprimez les exceptions et rédiger mieux!

Here you are, but —  You see how the word ‘but’ is the harbinger of bad faith, how the grantor never intended to give without taking away or wanting something in return.  What flows from the use of the conjunction is a natural source of ambiguity.  The use of the exceptionalist style, so pervasive among lawyers, is also poor form because it weakens the product of our work.  In the July, 2013, Canadian Lawyer, my column explains how this happens and how we can reduce our addiction to the use of the word.  Click on the image to the right, to read…

L’Humour juridique – jamais insolite, mais souvent efficace

Dans l’article du Accidental Mentor du mai 2013, “The Persuasive Art of Coded Understatement,” j’ouvre la Boîte de Pandore.  Qui utilise l’humeur dans le monde juridique?  Et qui devrait bien l’éviter?  Les avocats et les avocates peuvent vous faire rigoler, mais ceci n’est pas, ou ne doit pas, être le but.  Sans blague. Terms of use / Mentions légales