We lawyers can sometimes adopt a herd mentality. A senior lawyer or judge says something. You go back and read the case. You may be reluctant to voice your difference. That’s how we, as a profession, can just get things wrong. The example here comes from insurance law, but you can apply it to your area of expertise.
(le sommaire français suit) Discussion of the 2000 Court of Appeal for Ontario decision, Fellowes McNeil v. Kansa, in my recent article, “No Unbundling of Negligence,” has tapped into a continuing discussion of the precise ethical obligations of lawyers and law firms retained by liability insurers to defend parties in lawsuits, and who “stumble upon” information that may jeopardize the coverage and the insurer’s provision of a defence. The Supreme Court did grant leave to appeal, but the case was settled before Canada’s top court could hear it. Eleven years later, you’ll hear it here first, folks: Fellowes was wrongly decided.