Tending the Bar: The Good Character Requirement for Law Society Admission

Every Canadian law society requires thatapplicants for bar admission be of good character The author assesses the administration of this requirement and its statedpurposes ofensuring ethical conductby lawyers, protecting the public and maintaining the profession\u27s reputation. In particular, the premise underlying the use of the good character requirement to fulfill those purposes - that character is the well-spring of professional conduct in lawyers - is subjected to critical examination through the theoretical principles of Artistotelian virtue ethics and the empirical evidence of social psychology. The primary thesis of this paper is that as currently justified, administered and applied the good character requirement cannot be defended and must not be maintained. The secondary thesis of the paper, however, is that given the relationship.- albeit a qualified one - between character and ethical conduct, a reformed version of the good character requirement can, and arguably should, be maintained by the provincial law societies

Uncivil by too much civility ?: Critiquing Five More Years of Civility Regulation in Canada

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\u27 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 question. Disciplining lawyers for incivility when their conduct was substantively unethical avoids consideration of precisely why their conduct was improper, and ignores the implications of that analysis for the ethical duties of lawyers more generally.Second, the civility movement envisages a narrow conception of the good lawyer and risks reifying a patrician model of advocacy Finally, civility regulation has the potential to chill proper advocacy particularly for vulnerable clients. Law societies who discipline lawyers for making the right argument in words that were poorly chosen discourage what they ought to encourage

Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation

The Canadian legal profession is largely self-regulating. Provincial law societies governed by lawyers elected by their peers set the standards for admission to the profession and for ethical conduct, and investigate, prosecute and adjudicate allegations of professional misconduct by lawyers. Advocates for this regulatory structure rely on the concept of “independence of the bar”, the idea that lawyers must be free from any external interference with their representation of clients. Critics of the regulatory structure, meanwhile, argue that independence has a broader meaning than the advocates suppose and that, in any event, the self-regulatory structure of the Canadian profession is not necessary to ensure independence. This paper presents the varying interpretations of independence of the bar and suggests that while the advocates for self-regulation have a more justifiable understanding of independence than do critics, the concept of independence of the bar is not itself central to assessing the validity of any particular regulatory scheme. Rather, the things that independence should protect – the ability of lawyers to be zealous advocates for clients within the bounds of legality – should be used to assess the adequacies of any regulatory scheme. Does regulation ensure that lawyers fulfill their duty of zealous advocacy? Does regulation ensure that lawyers remain within the bounds of legality? Does regulation ensure access to justice? With these criteria in mind, and using recent changes to the regulation of lawyers in England and Wales as a comparator, the paper then analyzes the adequacy of regulation of Canadian lawyers with respect to competence, the general structure of professional regulation and access to justice. Based on this analysis, the author proposes changes to improve lawyer regulation in Canada. These changes do not abandon self-regulation. However, they include separating the adjudicative function of the law societies into a distinct dispute resolution entity with expanded regulatory powers in relation to hearing complaints brought directly by the public, addressing a broader range of matters in relation to competence and client service, and providing remedies beyond sanctioning lawyers. The changes would also include the creation of a legal regulatory review office in each province, governed by lawyers and non-lawyers alike, to exercise some constrained oversight and review of law society activities. Finally, the changes propose a variety of ways to enhance access to justice such as focusing law society activities on improving the functioning of the market for legal services through providing greater information to clients

Does Civility Matter?

Recent discussion of legal ethics in Canada has focused on the importance of civility as a fundamental value and goal of ethical conduct. This comment questions that focus. After defining the content of civility\u27 and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests that the emphasis on civility is misplaced. Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers and potentially undermines the effective representation of client interests. It also shifts emphasis away from the ethical values that should be the focus of our attention, namely Loyalty to clients and ensuring the proper functioning of the justice system

Does Civility Matter?

Recent discussion of legal ethics in Canada has focused on the importance of civility as a fundamental value and goal of ethical conduct. This comment questions that focus. After defining the content of civility\u27 and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests that the emphasis on civility is misplaced. Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers and potentially undermines the effective representation of client interests. It also shifts emphasis away from the ethical values that should be the focus of our attention, namely Loyalty to clients and ensuring the proper functioning of the justice system

Addressing Access to Justice Through New Legal Service Providers: Opportunities and Challenges

Most informed observers of the Canadian and American legal systems accept the existence of a significant crisis in access to justice. Evidence shows growing numbers of self-represented litigants, inadequate support for legal aid, far more reported legal issues than there is access to affordable legal assistance, and costly legal services and legal processes out of reach of most middle- and low-income citizens. Bridging this “justice gap” has become the focus of modern access to justice reform efforts

Can Pragmatism Function in Administrative Law?

This article draws out the ways in which Justice Rothstein grappled with complexity in administrative law. It argues that Justice Rothstein took a pragmatic approach to complexity in administrative law. Specifically, he sought to articulate a framework for judicial review that was workable for administrative decision-makers, litigants, their lawyers and reviewing courts. In addition, he looked to past experience with judicial review, evidenced in judicial precedent, rather than focusing on abstract theoretical norms

The Psychology of Good Character

This paper explores the significance of the changing nature of the good character requirement for law society admission in Canada. It posits that good character has shifted from a philosophical concept into a psychological concept, with evidence of past bad acts claimed to be relevant for whether an applicant represents a future risk to the public. This shifting conception of character has, however, been only partial, and the decision-making processes of Canadian law societies have not kept pace with it. Instead, the decision-making process defines character generally and generically, with only occasional emphasis on character as a relevant predictor of future behaviour. In addition, law societies only rarely employ psychological evidence in their decision-making processes, and when they do employ such evidence seem uncertain as to its relevance and utility. The paper examines whether law societies should embrace a more overt recognition of character as a psychological concept. It reviews how psychological evidence is used in the context of determinations of custody and dangerousness, and the success (or, as it turns out, the failure) of psychological evidence as an aid to fair and accurate decision-making in those circumstances. In the end, the paper concludes that while treating good character as a psychological standard is the only way to make the requirement logical and justifiable in light of the purposes it is said to fulfill, the employment of a psychological standard is fraught with difficulty. There is, in the end, no reason to believe that a psychology based approach will lead to more coherent and fair decision-making. Given that, and given the significant issues with a non-psychological concept of character, the case for retaining a good character requirement for bar admission is weak