LS test 1

The adversarial system

Traditional role of the lawyer was rooted in this system that forms base of our justice system

Trial by Ordeal

-        Undergoing painful exercise to determine innocence or guilt of the accused

-        Anyone left unscathed deemed innocent

-        Problems? —> Instruments used were torturous

Example of legal misconduct

Diamond & Diamond (2017)

- Personal injury lawyer Jeremy diamond fails to provide financial records from the firm to the law society

Joe Groia (2018)

-        Fined for incivility in the courtroom

-        Dubbed the “rude lawyer.”

-        1 month suspension and $200,000 in costs

-      Decision to support ruling against him by law society overturned by supreme court

Of Good character

May be refused for being “of low character”

o   Little consensus on what the requirement of moral character entails

o   Rests the assumption thar applicants are suitable

the provincial bar association

-        Seldom use provision to deny applicants

-        No standardization of application of the term

o   Unless clear evidence of contrary, admission granted

-        No background checks ; simply application

-        Note ; rare for association to disbar

Public perception of Lawyers

-        admired and reviled.

-        honorable – defenders of the poor and dispossessed

-        also viewed with disgust

o    Stemming from ethical issues/dilemmas that surround a case

o   Trained by those who represent (murderers)

o   Overrepresented in positions of power – corruption and scandals

Legal monopoly

-        Provincial statutory frameworks that prohibits unauthorized person from practicing law

o   Intended to ensure confidence for clients

-        Although intended to protect the public. Also leads to a monopoly of the provision of legal services

Law society has legal authority to set standards for/accredit paralegals

Canadian bar association

-        Used to impose set of ethical standard s that lawyers have to follow

-        Key players in the administration of justice

o   Cannot undermine public trust

o   Code establishes specific behaviours and expectations

Rules of the conduct : Three Aspects

1.    Representative of client

a.     Advise of legal rights, responsibilities, courses of action, likely consequences

Rules of the conduct : Three Aspects

1.    As an officer of the legal system

a.     Act within the law with respect to other legal players

b.    Use legal procedures in legitimate and non-abusive manner

c.     Must not act in a way to bring justice system into disrepute

Rules of the conduct : Three Aspects

1.    As a public citizen

a.     More ambiguous than 1 and 2

b.    Law should be accessible to all, ergo the disadvantaged

c.     Contribute to reform, improve legal process

d.    Fulfill civic and public duties

       i. Develop an ethical practice of the law

e.     Rules are vague and subjectively interpreted, leading to lawyers acting in contradictory ways

Traditional role of lawyers

-        Hired Hands in adversarial system

-        Lawyers perceive themselves as neutral when it comes to play in the lawyering roe

o   Take either side in a dispute and make use of law as a given (work with confines of the law)

o   Legal interest are incongruent with societies sense of ethics; interests are privileged

Role of Crown Attorney

-         Representative of the govt

-        Ensure due process

-        Can only proceed with criminal charge if “substantial likelihood of conviction”

-        Discretionary power; continue with charges , drop them, trial tactics, stay of proceedings, accept  plea bargains

plea bargains

-        95% of criminal charges never go to trial

-        Secure a plea of guilty from a defendant in exchange for leniency in charge/sentence

o   Defendants give up right to trial and acquittal.

-        McJustice – expediting the case

-        Crown forgoes a stiffer sentence.

-        Judges are removed from plea process

o   impartiality

plea bargains pt 2

-        Charge: Can plea he charge or dispute it

-        Sentence : Can plea the sentence to get fewer years or a lesser sentence

-        Fact –

-        Joint submission – key factor in plea bargains:

o   Eliminate judges

• Can “jump “denying plea bargains and give higher sentence on two conditions

  • Abusive power from lawyers

  • Courts must act in a predictable manner.

o   Eliminate victims.

• Post sentence

Advantages of plea bargains

-        Avoid length, cost of trials with uncertain outcomes, avoid re-victimization

-        Crown ought to consult with the victims and explain need for plea.

-        Defense ought to explain pros and cons of plea to client without undue influence

-        Must satisfy to judge that accused’s consent to plea is voluntary and informed

Crown: Fairness, impartiality

-        Represents public interests’ ; fair and impartial

-        Duty not to obtain convictions, but seek truth and ensure that the accused has a fair trial

-        Only pursue a line of argument that they believe to be true (unlike counsel)

Part 2: Ethics and Lawyer Client Obligation

• partisanship

-        Lawyer acts in a FIDUCIARY CAPACITY

-   Because of imbalance In power, clients have right to a higher standard of attention that other types of service contracts

o   Element of good faith

-        Law societies prohibit harm to third parties

Debate over when duty of zealous partisanship should give way to public interest

Competence

-        Code requires that service are delivered “in a consciences manner”

-        Standard – “ a competent lawyer in a like situation”

o   Should only accept cases in their respective areas

-        Rarely will law societies discipline for lack of competence.

o   Reactive and little monitoring on regular/serious basis

Loyalty

-        Client interests placed above all else

-        Lawyers are prohibited from engaging in activities that would jeopardize client interest

-        Obligation to disclose conflicts of interest to client (personal and familial)

Candor

-        Deal with clients in a open and honest way

-        Advise and guidance

o   Merits of a case and probable outcomes

o   Should not overstate merits and refrain from bold assurances that misled clients into inadvisable action

Disclose all monetary costs for services

Pro-Action

-        Proactive vs reactive

-        Pursue in a vigorous manner

-        Zealous approach but not over-zealousness

o   To ensure honorable means to obtain info

o   Not delay or harass the other party to forward clients interest

Confidentiality: evidentiary privilege

-   All information that comes into their possession while fulfilling their professional duties must be held ‘strict confidence.’

- Only relieved of this duty through client wavers or court order

Release of info to benefit or disadvantage client in any way, not permitted

Part 3: Critique of legal profession from a conflict perspective

-        Advanced by Marxist theory

-        Clients are not treated the same ($$)

o   Law is business, clients with money

-        Represents the interests of those with power

o   Poor under-represented and overwhelmed in legal cases

Permitted exceptions to disclosure.

-        If a crime is going to be committed

o   Imminent risk of injury or bodily harm or death

Difference between rich and poor - Lives of the rich

o   Problem free, any problems that do arise are not systemic

o   Problems are sporadic and use lawyers to deal with occasional bumps in otherwise smooth life

Difference between rich and poor - Lives of the poor

o   Numerous problems, continuous and systemic

o   Social, economical, and legal problems constitute and define much of their life

Law as an instrument for the rich

-        Advantaged clients want lawyers to use the system to remedy discrete conflict

-        Poor people want change to the system to escape continual round of legal difficulties and bureaucratic hassles

o   In liberal democracy, we accept a certain amount of bureaucracy

-        Law is therefore not a neutral exercise

o   (change vs. resistance to change)

Law as status quo

-        Lawyers are custodians of the status quo

By renouncing responsibility for the system their actions hold in place, lawyers maintain false image as independent and impartial

Law as ineffective in democratic society

-        Practice of law prevents meaningful social change that would benefit the poor it also,

o   A) wastes energy and undermines efficiency

B) fails to involve citizens as democratic participants in the process of change

Exploring Legal Ethics: The Ken Murray Case —> Exceptions to solicitor client privilege

-  Overruled when and if:

o   Innocence is at stake

o   Communications themselves are criminal

o   Protection of public safety

Legal definition: obstruction of justice

-        “everyone who willfully attempts to obstruct, pervert, or defeat the course of justice, is guilty of a indictable offence and liable to imprisonment for a term not exceeding 10 years”

- Obstruct

-  Impede

-  Interpose

- Hinder

Defeat

The Downside of Obstruction Provisos ex 1

o   Cases of Domestic Violence , complainant may face obstruction charges for recanting a statement to the police.

• Rationale- misleading law enforcement; wasting public resources.

The Downside of Obstruction Provisos ex 2

o   During election periods, obstruction cases will not be investigated as per policy.

• E.g., Trudeau – SNC Lavalin investigation on hold until further notice

• Obstruction investigations are not held during election period to avoid bias against the politician.

The Downside of Obstruction Provisos ex 3

o   Language, tone, and context

•   Capacious comments/remarks

• Lots of room for interpretation

• Could be aggressive

Scope Of Offence: What Is Permissible?

-        Take physical possession of item to defend client – YES

-        Temporary removal of evidence of a crime for purpose of preventing seizure by police – NO

o   A defense attorney can not actively impede a police investigation

Professional obligation:

• When a defense attorney discovers evidence and is unaware of its content they have a obligation to bring evidence forward

• Oddly very rare that defense lawyers are charges with obstruction of justice under the CCC for holding onto evidence

• PROSECUTORIAL INDEPENDENCE

  o   Discretion

  o   autonomy

Professional obligation: pt2

• D.P.A. – Deferred Prosecution Agreement

• Agreement to defer prosecution until a certain period of time

o   Used in cases where prosecution goes after a company for fraudulent activity

o   PROS ;

• encourages compliance

• self – disclosure

• monitoring of corporation

o   CONS;

• Public trust is diminished

• Too lenient

• Not a lot of court involvement

• In order to properly execute DPA courts must be heavily involved to ensure transparency

The Murray case: fundamental ethical issues

two fundamental elements of this relationship between criminal defense lawyer and his/her client pertinent to Murray case

Solicitor client privilege

-        Objective – not to assist the crown.

Duty to confidentiality

-        Limits to confidentiality – not party to an offence (i.e., obstruction)

Debate in Murray case

-        Most controversial aspect of Murray case

o   Possession of physical evidence and duty of disclosure

-        Defense lawyer does not have obligation to assist an investigation against his/her client

-        Disagreement about lawyers obligation when possession of Inculpatory evidence

o   On one hand right to hold evidence for “reasonable period”

o   Little guidance by regulatory bodies (LSUC) on set times

-        Inculpatory evidence —>in culpa à guilty

-        Exculpatory evidence —> ex culpa à innocent

Murray’s rationale for keeping the tapes

-        Legal strategy of Murray’s and t/f concealment necessary

-        Tactical value – because the tapes demonstrates that Homolka was equally involved in the torture and murder of the three victims

Reasons for withholding

-        Used after a preliminary trial to negotiate plea for Bernardo

-        Or, used during trial to undermine Homolka and raise doubt as to who murdered two of the victims

Tactic to defend Bernardo or hiding evidence.

-        Some legal experts argue that tapes were damning to Bernando and questions Murray’s rationale

-        But Murray’s contention that tapes introduced at particular juncture would raise reasonable doubt to the charges of 1^st degree murder

-        This line of thinking was utilizes in Murray’s subsequent defense

Murrays acquittal

• Did Murray have the requisite mens rea

• Murrays guilt hinged on one word :willfully

• the onus was on the crown to show beyond reasonable doubt that the suppression 0of the tapes were intended to obstruct

• the judge found that the crown did not show beyond reasonable doubt that there was intention

• Misconduct charges dropped in 2000

Principles of sentencing

o   Specific

• Denouncement à Targeted towards a specific person

o   General

• Targeted towards the general public

communications between lawyer – client

-        Privilege is essential to the relationship but not absolute

-        Lawyers are not to disclose any communication as a direct result of the accused seeking legal advice

-        Privilege does not extend to communications that constitute a criminal offence or intent to commit offence

-        Must be broken when lawyers must defend themselves against criminal charges.

plea bargains pt3

Eliminate judges

• Can “jump “denying plea bargains and give higher sentence on two conditions

  • Abusive power from lawyers

  • Courts must act in a predictable manner

partisanship

• It involves a biased approach in political decision-making, where individuals prioritize the interests and goals of their own party over other considerations.

• can influence voting behavior, policy preferences, and political discourse. It often leads to polarization and can impact the functioning of democratic systems.

candor

• duty of parties and their legal representatives to be honest, open, and transparent in their dealings with the court and opposing parties.

loyalty

• obligation of individuals to remain faithful, trustworthy, and committed to their legal obligations, such as contracts, agreements, or fiduciary relationships.

competence

• refers to the ability and skill of lawyers to effectively understand, interpret, and apply legal principles and procedures.

• It encompasses a deep understanding of legal concepts, research skills, analytical reasoning, and the ability to present arguments persuasively.

• is crucial for ensuring fair and just outcomes in legal proceedings and maintaining the integrity of the legal system.