Loyalty, Conflicts & Judicial Writing in an Ontario Family Law Decision

1.         Introduction

A recent Ontario family law decision considered the lawyers’ conflicts rules in the context of a family law proceeding.  The case is unusual in that it presents a rare consideration of professional and ethical obligations for lawyers, by a Court at first instance.

The ruling highlights the respective roles of the Courts and Law Societies in lawyer professionalism.  The judgment also examines obligations to former family law clients under the duty of loyalty.  Last, the decision touches on the questions of appropriate judicial writing practices.

The rest of this blog critically examines these issues and identifies some potential weaknesses in the legal reasoning utilized in this case.  I conclude that some parts of the law of lawyers’ conflicts and the duty of loyalty are not well described in the decision and that the jurisprudential value of the case may therefore be limited.

2.         Background Facts 

The June 17, 2016 Ontario Superior Court decision in Hogarth v Hogarth[1] involved a motion for disqualification in a matrimonial dispute. Several months prior to the start of the spousal litigation in 2015 between the Hogarths, a third party, Mr. Antony “Nella”, consulted with the lawyer Mr. Harold “Niman”.  Nella was seeking to retain Niman in relation to his own separate matrimonial dispute. 

As later became clear,[2] Nella was also dating the wife, named Constance Hogarth, in the underlying matrimonial dispute, and was described by the Court as her “boyfriend”.  Ultimately Nella did not retain Niman after his consultation.  Niman went on to represent the husband, Timothy Hogarth, in the litigation that was commenced a few months later.

The 2016 motion before the Court made a number of assertions in relation to the lawyer’s professional obligations.  These included that Niman breached his duties of confidentiality, loyalty and candour to Nella.  The motion also objected to Niman’s sharing of the file and information about Nella with his own counsel, and to the possibility that the lawyer might have to cross-examine the “boyfriend” who had earlier sought to retain him.

3.         The Law of Conflicts

The Court considered in some detail the duties owed to former clients,[3] and the test set out in MacDonald Estate v Martin.[4] That is:

The court must determine (i) did the lawyer receive confidential information to a solicitor and client relationship relevant to the matter at hand and (ii) is there a risk that it will be used to the prejudice of the client.

The Court went to quote Macdonald Estate with respect to the well-known conflicts of interest test about whether two matters are “sufficiently related”:

If a former client can establish that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted which could be relevant “unless the solicitor satisfies the court that no information was imparted which could be relevant”.[5]

The Court reviewed the case law and further jurisprudential refinements on these legal tests and observed the test for removal of a lawyer because of a conflict of interest is an objective, reasonable person test.[6]  Last the Court also noted,[7] where the former client cannot establish a sufficient relationship between two matters, it can still lead evidence that the lawyer or law firm actually possesses relevant confidential information.

4.         The Findings

The Court reviewed the nature of the relation, communications and documents exchanged between the two, but found no grounds to support a claim that the matters were ‘sufficiently related’.[8]  The Court also found that Nella did not establish that Niman actually possessed relevant confidential information.^[9]

The Court also reviewed what it characterized as the two aspects of the duty of loyalty owed to former clients.  The first is the risk identified in McKercher, to refrain from using confidential information.[10]  The Court also identified a more limited “narrow duty”, where the chance that confidential information being at risk is absent,[11] but where a lawyer might undermine the previous legal work of a former client by taking an adversarial position in current litigation.  

The Court also found no evidence to support a limited duty of loyalty owed by Niman and also no evidence to support a claim of conflict, without some connection in the legal work between the Nella and Hogarth litigation matters.  In this respect the Court determined that there was no evidence that Niman was taking an adversarial position with respect to issues arising from the Nella litigation.[12]  In the end the Court did not allow the motion to succeed.

5.         Discussion

i)          Courts Have Discretion to Enforce Lawyer Professionalism.

I’ve noted previously the judicial assertion that the authority of Ontario’s Law Society is “unqualified” in professional regulation.  Such statements are likely overly broad in general. More specifically though, this case shows the institutional independence of law societies to enforce professional standards is qualified by the role of the Courts, who also retain significant discretion to engage in examinations of lawyers’ professional conduct.

The fact it was the Court that considered the professional obligations of a lawyer in this family matter may also explain why there was no reference to the Law Society’s Rules of Conduct.  The lawyer rules do not provide a definitive guide of procedural conduct and there are other sources for lawyer ethical obligations, including case law. 

However, it is disappointing that the decision relied entirely on jurisprudence, given these professional obligations are spelled out in some detail in the Rules.  For example, despite the central question of conflicts in this case, at no point in the decision did the Court expressly consider the regulatory definition of a professional conflict of interest or the scope of the duty to avoid conflicts within the professional Rules.[13] 

ii)         What, Exactly, Is The Duty of Loyalty?

The analysis contained within the judgment may also have missed or conflated some of the applicable professional obligations under the lawyers’ duty of loyalty. As noted in the Rules, the duty of loyalty is the overarching obligation owed by lawyers to all clients.  It is usually described as consisting of four separate parts: the duty of confidentiality; and the duty to avoid conflicting interests; the duty to commit to the client’s cause, and; the duty of candour. [14]

However, in this case, the judge seems to have directly considered only parts of the duty of loyalty: first, the possible breach of ‘confidence’; then, the duty of loyalty owed to former clients, and; finally, the duty of candour. 

iii)        Confidentiality

The Court noted the jurisprudential recognition of the especial importance of confidentiality in family law matters.[15]  However, the Court found the matters were not ‘sufficiently related’ enough to infer that confidential information, if it existed, would be misused.[16]  The judge also found after a review of the nature of the relation, communications and documents, that there was not ‘clear and cogent’ evidence that the matters were sufficiently related enough to disqualify Niman.[17]

In a related finding later in the decision, the Court also found that since no disqualifying confidential information was received by Niman, the possible cross-examination of Nella by Niman in the Hogarth proceeding would be appropriate.[18]

As a final element of the lawyers’ confidentiality obligation, the judge also considered the appropriateness of the lawyer retaining his own counsel to represent him in the motion. On this point, the Court accepted the acquiescence of opposing counsel to not pursue the issue.  Here, again, though the Ontario professional Rules speak directly to such circumstances, they were not referred to in the judgment.[19] 

iv)        Duty of Loyalty and Commitment To a Client’s Cause

The Court also considered the duty of loyalty as a separate obligation seemingly distinguishable from the ‘law of conflicts’.[20]   After canvassing the case law, the Court determined that absent a breach of confidence, the duty of loyalty to a former client in this respect is limited “to attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client”.[21] 

However, these passages arguably conflate some aspects of the duty of loyalty.  For example, while touching on the ‘law of conflicts’, this aspect of the overall duty of loyalty is perhaps better understood as part of the separate duty of commitment to a client’s cause.  At the termination of the professional relation, this duty of commitment remains in part to prevent a future adverse interest from interfering with the ongoing loyalty to the legal interests of a former client.

v)         Duty of Candour

The Court did consider the final aspect of the duty of loyalty in several paragraphs and found this duty was not breached.[22]  While the findings with respect to the duty of candour are consistent with other determinations in the decision, there is little reference to any legal authority in relation to the scope and nature of the obligation.[23] 

This gap may be partly understandable in the sense that there remains scant interpretive jurisprudence about the duty of candour in Canadian law.  However, like the other three aspects of the duty of loyalty, there is some regulatory guidance and commentary, which arguably might have helpfully supported the Court’s determination in this instance.[24]

6.         Some Last Thoughts & Conclusion

As a final thought, the forms of address employed by the Court in this decision are somewhat troubling.  It is not clear why, but the judge consistently refers to the moving parties and husband throughout the judgment by versions of their first names (“Connie”, “Tim” & “Antony”).  By contrast the lawyer, whose professional conduct was challenged in the motion, is always referred to by his last name.

I think this observation touches on the recent discussion in Canada of the appropriateness of judicial writing styles, see e.g. here.  In this case, it’s possible that a judicial writing style that uses first names, and in two cases here a diminutive form of the litigants’ given names, could be perceived as overly familiar or even patronizing by some.

Such a possible perception may be especially problematic where an adjudicative official differentiates their manner of address and uses a more formal surname to identify one of the parties, as occurred in this case.  Consequently, to the extent that such a perception might be reasonable, in my opinion the employment of first names in this way is a judicial writing technique that ought to be discouraged.

In the end, the Ontario Superior Court decision in Hogarth provides a rare example of the consideration of lawyer professionalism issues by the Court directly in a family dispute.  I have deliberately refrained from questions about the ultimate determination.  This is partly because my opinion and feelings about the legal reasoning here are mixed, as set out above, but also because my purpose instead was to consider the application of the law in an important and developing area of lawyer professionalism.  

Ultimately, aspects of the legal reasoning within the decision appear confusing in relation to the applicable law of lawyers’ conflicts.  As a result, this case may not prove especially helpful in advancing the jurisprudence on these issues.

---

[1] Citations are to CanLii, embedded.  Also reported at 131 OR (3d) 736; 2016 ONSC 3875 ["Hogarth"].

[2] The Court determined that Niman was not notified about the nature of the relation between the wife and Nella at the consultation meeting, at para 70, and even if he was, it was not sufficient grounds for removal, at para 78

[3] At para 23.

[4] MacDonald Estate v. Martin, [1990] 3 SCR 1235; cited to QL, [1990] 3 SCR 1235, at para 45 [MacDonald Estate"].

[5] My emphasis, at para 29,  citing MacDonald Estate, supra note 4 at para. 46

[6] Such as, at paras 30 and 35, the SCC decision in Canadian National Railway Co v McKercher, 2013 SCC 39 (CanLII) (“McKercher”).

[7] Supra note 1 at para 41.

[8] Ibid at paras 62, 72, 84, 87, 88 - 89

[9] Ibid at para 90.

[10] Ibid at para 93, citing McLachlin CJ at para 23 of McKercher, supra note 4 .

[11] Ibid citing, at para 101, Cromwell JA’s remarks at para 51 of  Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (CanLII) (“Brookville Carriers”).

[12] Ibid, at paras 104 – 105.

[13] Rules of Professional Conduct, [Rules] at 3.4-1.

[14] Ibid, at 3.4-1 & Commentary [4].

[15] Supra note 1, at para 27.

[16] Ibid, at para 55.

[17] Ibid, at para 88.

[18] Ibid, para 115.

[19] Supra note 13 at 3.3-6

[20] Supra  note 1, para 92 – 93. Based on CJ McLachlin’s comments in McKercher at para 23.

[21] Ibid, para 102.

[22] Ibid, paras 108 to 110.

[23] The Court does reference McKercher, supra note 4, at para 108.

[24] Supra, 3.2-2 and commentary in Rules, at note 13.

Sorry Shakespeare: Precedent, Roncarelli, and Misremembering Edwards on #PersonsDay

With apologies to the Bard,[1] I’ve come to the conclusion that in law, sometimes the fault lies not in our stars, but in our stare decisis.  In many ways, legal precedents are less like a north star, fixed in the firmament, and more like an inconstant moon,[2] that waxes and wanes with the passage of time.  Literary and stellar comparisons aside, it is in this last sense that I think a true appreciation of law requires an understanding of its temporal quality.

These effects are apparent in both principle and in practice.    In common law, the principle of stare decisis means taking a legal precedent articulated in earlier cases, and applying it to determine current legal issues.  The effects of this process make law inherently historical in the sense that, to paraphrase David Luban, all legal argument represents an attempt to infuse the past with present meaning.[3]

If legal argument is in part a looking backwards, then it’s also often an attempt to project into the future.  Legal decision-makers apply precedent in current cases.  Sometimes novel factual circumstances or theoretical reinterpretations require that a longstanding holding in law be adapted in new ways.  In this manner, a present legal decision and a fresh precedent can serve as a prospective guide for new jurisprudence. 

This temporal complexity in considering the function of stare decisis is, of course, one that some of the great minds of legal philosophy, like Jeremy Waldron, have considered in some detail, see eg here.  I love, for example, the quote from Schauer that I think captures the spirit of this principle of dynamic interaction in law over time.  He says, “today is not only yesterday’s tomorrow, it is also tomorrow’s yesterday”.[4]  

As a matter of practice in Canada, the dynamic function of stare decisis means that over time the perceived significance of a legal decision may change.  Eric Adams recently presented an interesting example of this phenomena in the context of the famous Roncarelli v Duplessis case.[5]  This decision remains one of the most commonly cited decisions in Canadian public law, though the main reasons why seem to have shifted. 

Today it is most commonly associated with law, constitutionalism and limits on governmental authority.  However, at various times the case has also been highlighted as an example of the limits of provincial legislation or to explain the pre-Charter scope of freedom of religion.  More broadly, for decades in Canadian legal classrooms, the case was used to describe the scope of common-law legal rights.[6]

The perceived significance of a decision can change over time in law, but also in the popular imagination.  This was made very apparent on my social media feed on October 18th, which was the 87^th anniversary of another important legal decision in Edwards v Canada (AG).  This case is more commonly know as the Persons Case, because the decision of the British Judicial Committee of the Privy Council interpreted a constitutional provision that only “qualified persons” could be appointed to the Canadian Senate to include women.  The anniversary of this case is popularly referred to by some on social media as #PersonsDay.

Despite that seemingly straightforward description, the popular significance of the case appears somewhat misunderstood.  The most common misperception I saw was that the Persons Case was directly connected to women earning the right to vote, which is categorically untrue. 

Others thought that prior to the case, women in Canada could not hold public office.  While women could not be appointed to the Senate until the legal decision, women held a wide variety of public offices, including as provincial MLAs, judicial officials and as Members of Parliament. 

Others seemed to think that it was only by reason of the Court’s interpretation of the constitutional term “qualified persons” as a requirement for Senatorial appointment, that women were recognized as ‘people’, which is at best, inaccurate.

I was, frankly, a little astounded at the numerous individuals, including several elected Canadian officials, who misstated the importance of the Persons Case in public postings on October 19^th, including at least one Member of Parliament, see here, and the current Premier of British Columbia, see here. 

For those interested, the Historica #HeritageMinute video, from the perspective of Emily Murphy, one of the 'Famous Five' in this event, is here.

To be fair though, these politicians were not alone, and there were numerous examples of others who misunderstood or appeared ignorant of what the case actually stands for, see the #PersonsDay tag on Twitter for many more such examples.

In any event, how precedent is remembered popularly and in law, along with how it is sometimes uncertainly applied is one of the things I’ve been thinking a lot about in my research and writing.  In this respect, as someone whose initial training was in history, I was happy to see that #PersonsDay was being celebrated, but also a bit perplexed that the legal importance of the Persons Case appears to be so often misunderstood.

---

[1] The quote from Shakespeare is more accurately “the fault, dear Brutus, is not in our stars / But in ourselves,” Julius Caesar, Act I, Scene III.

[2] Science fiction fans will know this alludes to Larry Niven’s short story of the same name, in which lunar inconstancy symbolizes change, but also foreshadows a global apocalypse.

[3] David Luban, “Difference Made Legal: The Court and Dr King”, 87 Michigan L R 2152 (1982) as quoted in J Feinberg & J Coleman eds, Philosophy of Law, (Wadsworth/Thompson Learning, Belmont CA, 2000) at 227.

[4] Frederick Schauer, “Precedent”, (1987) 39 Stanford L R, 571 at 575.

[5] Eric M Adams, “Building a Law of Human Rights: Roncarelli v Duplessis in Canadian Constitutional Culture” (2010) 55 McGill LJ 437 which is available online through SSRN < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2030502>.

[6] Ibid.

Independence & CPD in the Camp Inquiry & the Green Appeal

1.                  Introduction

            My last blog briefly surveyed some recent and ongoing cases that appear to be refining the principle of independence of the Bar in Canada.  A further case, Sidney Green v Law Society of Manitoba (Green), will soon be before the Supreme Court and is scheduled for hearing this November 9, 2016. This matter involves a senior lawyer from Manitoba, who is challenging the imposition of mandatory continuing legal education by that province’s Law Society. 

            I previously also noted that the refinement of ideas about independence for lawyers has a long interrelation with the development of judicial independence.  The simultaneity of similar issues, between the bench and the Bar, is also apparent in current developments in Canadian law.  In this respect, questions about mandatory legal education for judges is also an aspect of the current Canadian Judicial Council (CJC) Inquiry into the behaviour of Justice Robin Camp. 

            This blog examines the principle of independence for judges and lawyers in these cases, as it relates to mandatory legal education.  As I previously noted in the context of Bar, ‘independence’ has been a dynamic principle in Canadian law.  But, based on the consideration of independence in the context of mandatory legal education set out below, I conclude that for both lawyers and judges, it is also subject to limits justified by its broader public purpose. 

2.                  CJC Judicial Inquiry

            Justice Robin Camp is a federal judge and the subject of a current Inquiry into his behaviour before the CJC.  The issue underlying the Inquiry involves Justice Camp’s behaviour and language in a sexual assault trial over which he presided prior to his federal appointment. The matter has received considerable national attention, eg see here, and raises a host of questions, particularly with regard to the effectiveness of judicial discipline in Canada. 

            Questions about the effectiveness of judicial discipline in Canada have recently led the federal Minister of Justice to engage in a public consultation about the process of Judicial Inquires and the role of the CJC. See recent news reports and commentary on this consultation, eg here and here.

            The current Inquiry into Justice Camp’s conduct has also highlighted the issue of judicial education.  One view is that the judge’s impugned behaviour was based in his lack of knowledge and training about sexual assault law.  Such positions raise concerns about the extent to which judges should be subject to mandatory legal education and training. 

            It could be argued, for example, that imposing a requirement of legal education disrespects the principle of individual independence, in the sense that judges are supposed to be free from interference in their adjudicative roles.  As suggested in this news article, which also interviews former Supreme Court of Canada  Justice Thomas Cromwell, the imposition of mandatory judicial education could be viewed as a "potentially dangerous incursion on judicial independence".

            At the same time that questions about discipline and mandatory legal education are under scrutiny in the Camp proceeding, similar concerns in the context of the Bar are also likely to be important in the upcoming Green litigation before the Supreme Court, examined below.

3.                  Green v Law Society of Manitoba

            Mr. Sydney Green is a senior lawyer in Manitoba who was subject to suspension by the provincial Law Society in 2014 because he did not complete a mandatory requirement for annual Continuing Professional Development (CPD).  While expressing some support for the idea of lawyer education, see here, Mr. Green objected to both the mandatory nature of the CPD requirement and to the specific authority of the Manitoba Law Society, as well as the process used, to potentially suspend his licence to practice law, and subsequently brought the issue to court. 

            Undeterred by his loss at the provincial Court of Appeal in 2015, Green sought to appeal the matter to the Supreme Court, which granted leave last December, see here.   The factums of the parties, and the intervener Federation of Law Societies of Canada (FLSC), are publicly available at the Supreme Court of Canada website, here. An interesting question to me in this case is why exactly the Supreme Court granted leave to hear this matter.

            As set out in R v Hinse (1995), the Court has a wide discretion to grant or deny leave to appeal, that does not necessarily depend on the correctness of the result at the lower court.  Typically leave is granted when one of several issues also arises.  These include: whether the case raises a novel point of law; a conflict between courts of appeal in different provinces on a similar issue, the interpretation of a statute that exists in several jurisdictions, or; the presence of an important constitutional issue.

            However, in this case the authority of Canadian law societies to regulate the profession in the public interest has been recognized for a long time and recently, for example, in the recent Groia decision from the Ontario Court of Appeal, see my previous blog commenting on this case. In addition, the requirement for continuing legal education and CPD has been largely accepted, in most if not all jurisdictions, as an important aspect of lawyer professionalism, eg para 18 of FLSC intervener factum.

            Furthermore, even though there might be technical differences in the various provincial and territorial statutes authorizing legal regulators, they have been afforded a wide and generally recognized underlying authority by courts to self-regulate the legal profession,   In the past, this has included authority to regulate and to discipline lawyers for matters not specifically set out, as may be an issue in Green, see eg, the Supreme Court's Jabour decision. 

            However, I do think that this case potentially raises an issue about the status of the principle of independence of the Bar, that as I highlighted in my last blog, is becoming an increasingly important aspect of Canadian legal culture.  Here, I think the distinct role of lawyer self-regulation in Canada, and the relationship between the institutional and individual aspects of independence of the Bar is one that is likely to be more fully articulated in this case.

            If the old adage that bad facts make bad law is true, then I think there may be some reason to believe that the relatively straightforward nature of the facts underlying the Green matter may provide the Supreme Court an uncontroversial opportunity to lay down some refinements about an important legal and constitutional principle. Such refinements may useful in its consideration of more complex cases in the future dealing with Bar independence and the role of Law Societies.

4.                  Conclusion

            Concerns about mandatory legal education raised by the Green and Camp proceedings appear to overlap to some extent.  Both deal with independent officials operating in the justice system.  Positions opposing legal education and CPD suggest a perspective that the mandatory nature of such programs could inappropriately trench on either judicial or lawyer independence.  Both cases also raise questions about the role and function of individual independence and its governance through institutions such as the CJC and law societies.  In this respect, the question of mandatory continuing legal education for judges and lawyers is one that appears to have a number of similarities.    

            I think the issue of mandatory legal education in relation to judges and lawyers is one that is also connected by a common purpose.  Ongoing professional education can help both judges and lawyers address gaps in knowledge and skills and keep them apprised of current developments in the law.  In this respect, mandatory education for judges and CPD for lawyers, would appear to be in the broader public interest, to enhance the effectiveness of the justice system and its individual officials. While possibly limiting autonomy, the qualification on independence would nonetheless be consistent with the conditional nature of the principle in Canada.  Comparing the circumstances in the Camp Inquiry and in the Green litigation also provides a further and modern example of the simultaneity between independence issues for lawyers and judges, and the ongoing connection between the two in Canadian legal culture.    

The Emerging Principle of Independence of the Bar in Canada

1.     Introduction

     It’s been a good year, or so, for the jurisprudential development of independence of the Bar.  This blog surveys several recent cases in Canada that have refined the understanding of the principle.  These decisions have helped to scope out the limits of independence for both individual lawyers and for the institutional aspects of the Bar.

     Given these recent developments, and the fact several of these cases are still before the Courts, it remains to be seen if this process of refinement will continue, and what the final scope and limits of independence of the Bar in Canada might look like.  However, what appears to be emerging is a better understanding of this principle, which also focuses on its public value in the context of Canadian legal culture.

2.     Individual Independence of the Bar

      My brief survey starts with the Canada v FLSC (FLSC) case from early 2015, where the Supreme Court upheld a BC Court declaration reading down federal legislation, (here and here), so it did not apply to lawyers and law firms.  These laws required counsel to collect information about the identity and finances of clients, imposed disclosure obligations on lawyers and provided broad search and seizure powers to governmental authorities.

     The Court determined that this legislation interfered with the constitutionally recognized right of clients to solicitor-client privilege and found it to be of no force and effect as it applied to lawyers.  However, the majority also went one step further to imbue an aspect of the individual independence of the Bar with further legal legitimacy.

     In FLSC, the appellant argued for a broad recognition of the principle of Bar independence.  Although the Supreme Court declined to decide this wider issue, the majority did determine that the principle of a lawyer's commitment to a client's cause was one that was vital to the operation of the legal system.  This aspect of the legal duty of loyalty that all lawyers owe to clients was also precise enough to be recognized as a new principle of fundamental justice.  In this respect, the Court found the principle essential to the solicitor-client relationship and vital to maintaining confidence in the integrity of the administration of justice.

      A similar subject matter, the privacy rights of lawyers' clients, was also the focus of two more recent 2016 decisions of the Supreme Court.  In Canada (National Revenue) v Thompson and its companion, Canada (Attorney General) v Chambre des notaires du Québec, the Court also recognized the value of legal professional secrecy.  These cases disallowed statutory provisions of tax law that permitted a wide authority for the Canada Revenue Agency to demand disclosure of names and financial information of lawyers' clients.  Further comment about these cases, by former Ontario Law Society Treasurer Vern Krishna, can be found here.

     While 'independence' can be regarded as an absolute concept, the more common public law approach is that there are few, if any, unqualified legal principles in Canadian law.  I examined this point, along with several others in my last blog on the June 2016 Ontario Court of Appeal decision in Groia v LSUC (Groia).

     In that case the lawyer, Mr. Groia, faced limits on his independent professional conduct imposed by what the Court identified as his 'civility' obligations under the Rules of conduct, though as I pointed out, the term does not appear in the professional lawyer rules in Ontario.  The tension between 'civility' and the possible limits on the independent obligations of lawyers to be 'zealous' or 'resolute' advocates for clients remains a live issue for the Bar, as discussed further in this recent blog by Heather Douglas.

     A few days after the Groia decision, the Court of Appeal also released a decision that supports the proposition that whether acting with 'civility' or with 'zealousness', lawyers also face a  "reasonableness" limit in their legal submissions and proceedings before the Court.  In its decision in Best v Ranking the Ontario high Court sanctioned the lawyer involved, for acting unreasonably in advancing a weak civil case at the direction of the client, by imposing personal liability for costs on counsel.  Lawyer and former OBA President James Morton has commented on this decision in his own recent blog, see here.

3.  Institutional Independence of the Bar

     While much of the focus on independence of the Bar has centred on individual lawyerly duties, there has also been some examination of the organizational aspects of independence of the Bar.  For example, while examining specific 'civility' obligations, the Groia decision also touches on institutional aspects of independence.   In particular, the case shines a light on the role of Law Societies in the professional self-regulation of the legal profession in Canada.  In this respect, Canada is pretty distinct in its reliance on lawyer self-regulation, through statutorily authorized, but independent bodies, that are led and elected largely by the profession itself. 

     While it has been suggested that independent Canadian Law Societies have a wide, potentially "unqualified" discretion to regulate the legal profession (in Groia), I think there remains some question about the scope and limits of this authority.  For example, while it is the role of modern legal regulators in Canada to oversee lawyers, this authority intersects with the judicial power to manage lawyer conduct.  As University of Ottawa's Amy Salyzyn points out in a 2014 paper, see here, there remains some ambiguity in the respective roles of Law Societies and the Courts in the regulation of lawyers in Canada.  While touching on lawyerly individual duties to their clients and the courts, the Best v Ranking decision, noted above, also provides a further example of this ambiguity.

     From the organizational perspective, the broader question about the institutional role of legal regulators is at the heart of a series of current cases, in multiple Canadian jurisdictions, involving the status of British Columbia's Trinity Western University's (TWU) Law School. Under Canada's federal structure, each province and territory has individual responsibility for the legal profession, and each has a separate legal regulator.  Each jurisdiction must therefore determine whether potential applicants meet the requirements for Bar membership. 

     At issue in this case is a community covenant that TWU requires students to sign, prohibiting sexual activity except as between a husband and wife.  This issue has spawned litigation in several provinces from those opposed to accreditation of TWU's Law School because, it is argued, its community covenant is discriminatory on the grounds of sexual orientation, prohibited under Canada's Charter of Rights and Freedoms.  At present seven of ten Canadian provinces have accredited the Law School, so its graduates can be called to the Bar in those areas.  The matter remains before the Courts or subject to review in Nova Scotia* and British Columbia. 

     Last week, Ontario's Court of Appeal upheld that provincial Law Society's decision not to accredit TWU's Law School, see news report of this decision, here.  The matter seems likely to be before Canada's Supreme Court soon, see here.  In determining this issue, I think it likely that the Supreme Court may take the opportunity to comment on and further refine the principle of Bar independence as it touches on the distinct institutional role that Law Societies have played in Canada. 

*Update: On July 26, 2016, the Nova Scotia Court of Appeal released its decision in this case.  The Court found the previous actions of the local Barristers' Society, that refused recognition of the TWU law school, was outside the authority of the provincial legal regulator in the circumstances.   That decision can be found here.   There are several aspects of the case that deal with the institutional independence of the Bar which, in my view, are inconsistent with the recent Ontario decision that dealt with the same underlying issue.  The disparity between the two decisions increases the likelihood that this matter will soon be heard by the Supreme Court of Canada.     

4.  The Public Purpose of Independence of the Bar

     There is some dispute in Canada about whether, and to what extent, the legal profession has historically acted in the public interest, as I've noted before.  However, the recent case law has more and more closely identified the public interest as an important value underlying Bar independence.   In my view, all of the decisions noted above directly or implicitly invoke an appeal to the public interest as a primary value underlying the role and function of the lawyers in Canada's legal system. In addition, there have been several other recent cases that have further refined aspects of this connection.

      Recent cases that connect independent lawyer functions to the public interest include the Hillis decision from Ontario's Superior Court, which I discussed in a previous blog.  That case determined that the Crown duty to call witnesses in criminal proceedings was subject to review by the Courts on a fairness standard, given both the individual public function of prosecuting attorneys and their broader role as 'mini-ministers' of justice. 

     At a wider level, the Court's decision in R v Moodie (Moodie) challenging inadequate legal aid funding is another example.  There the failure of criminal defendants to qualify for state funded counsel is highlighted as an issue of public access to justice.  Alice Woolley presented an interesting discussion of some of the implications raised by Moodie in a blog that can be found here. 

      Last, I think the case of lawyer Edgar Schmidt, from the Federal Court in March 2016, raised several important issues related to the public interest and the individual government lawyer's role.  In that case a Department of Justice lawyer raised concerns that legitimate legal risks in terms of constitutional compliance were not being considered appropriately, by the Minister or by Parliament, and sought a review of government policy.  

     One of the important issues raised by this case is the challenge faced by lawyers in all organizational settings, to ensure that the 'client', whomever that may be, receives and appreciates the legal opinions of counsel.  Though Mr. Schmidt lost his case, the matter also remains subject to appeal, and raises what I think is a novel point of public interest in the development and promulgation of legislation. 

5.     Conclusion

     The cases above suggest that the principle of independence of the Bar appears to be evolving in a highly dynamic fashion in Canadian law.  Where is this dynamic evolution taking us?  Hard to predict the future, but what appears to be emerging is a description of the function and purpose of Bar independence in Canada that acknowledges its individual and institutional dimensions for a broad public purpose (maybe purposes).

     If this characterization of the jurisprudence is accurate, then it is interesting to note that the development of the principle of independence of the Bar is undergoing a similar kind of jurisprudential refinement as the principle of judicial independence has experienced in Canada, since at least the implementation of the Charter, over 30 years ago.  In fact, this parallel development of lawyer and judge autonomy reflects the interrelation between the different aspects of independence, that can be traced back at least several hundred years.  Whatever the precise final outcome, the developments highlighted above suggest a new and clearer focus on Bar independence, which also seems to be becoming more embedded  as a recognized principle of law in Canadian legal culture.