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Alice Woolley
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This is what I sent to the Canadian Legal Ethics Listserv: As Amy already let the listserv know, Monroe Freedman died this week. For me he was more than a great figure in legal ethics. After we “met” through our mutual blogging on Legal Ethics Forum, he became a beloved friend. He was 40 years older than I and his life experience was very different from mine. But Monroe had a rare capacity to take an interest in people and to act with generosity towards them. I was lucky to be a beneficiary of that. He inspired me to write Understanding Lawyers’ Ethics in Canada, actively engaged with the manuscript and yet let me take the book in the direction that I wanted, even when it was different from his own. He in fact read many of my papers, even ones that couldn’t possibly have interested him, and generously engaged with the ideas. And I wasn’t the only one – there are many similar stories in the comments to the memorial on Legal Ethics Forum. Yet what I loved about Monroe as much as anything was that he wasn’t some kind of saint-like figure. He engaged in intemperate debates, was sensitive to perceived criticism, was impatient with certain types of scholarship and remained capable of getting riled up right until the end. He was passionate and relentless in pursuit of what he believed throughout his life. This past year he wrote about what he viewed as prosecutorial misconduct in the Ferguson matter, and took on the Metropolitan Opera’s showing of Klinghoffer, carefully detailing his claim of the opera’s anti–semitism. He had a loving heart and great courage. His wife and son died in 1998, and his daughter died last year. I don’t know how he bore it - the thought of being the only remaining member of my family is the worse thing I can imagine. Yet Monroe kept going, finding meaning in his work, strong connections with friends and colleagues and deep relations with his son and daughter-in–law, and his grandchildren. My favourite Monroe story happened after I had stayed with him while at a conference in NYC. I had tried to find some surgical gloves when I was there, because my son (who has autism) loves to use gloves to drum with. I didn’t manage it, but a few weeks later a parcel arrived for John containing pink surgical gloves and a note “from your friend in New York, Monroe”. His many professional accomplishments are described in the Washington Post obituary, here: I meant to write about them, but it’s Monroe the man I am thinking of, who I will miss so much, and who I wanted to share with this community. I don’t know that I realized how much I loved him until he was gone. I wish I had had a chance to tell him.
Toggle Commented Mar 1, 2015 on In Memoriam: Monroe Freedman at Legal Ethics Forum
He sure did.
Toggle Commented Feb 27, 2015 on In Memoriam: Monroe Freedman at Legal Ethics Forum
One of my colleagues during her JD degree called Monroe to ask him a question about ethics. He talked to her at length, and then sent her an signed copy of his book. She's a 2004 grad, so this was when he was well past the point in his career when you would expect him to be taking time for Canadian law students. But he did.
Toggle Commented Feb 27, 2015 on In Memoriam: Monroe Freedman at Legal Ethics Forum
I think one thing you are seeing in the report though is the blending of 3 different reports/committees. The recommendations on ABS, law firm regulation, lawyering advising and supervision were a product of one committee and were not really based much on Susskind at all. Far more influential for our work was research done on experiences in other jurisdictions with ABS and on law firm regulation, and on our assessment of some important regulatory issues (e.g., the advising issue was one that I was very committed to). I think Susskind's work was only I think influential in the piece on innovation, which isn't much of a regulatory change. But I think you are right - the rhetoric as put together may give a misleading impression as the motivation behind the most substantive recommendations.
Milan I'm not a disinterested party since I was on the Committee that drafted the recommendations on liberalization of the legal market. But my comment would be that I am enormously skeptical about predictions on the future of the legal profession (I am writing a blog post on that point), and my own approach to the recommendations was: 1) might they do harm; 2) might they do some good. In general I think if you look at the actual recommendations on ABS you will see that they are pretty conservative, and I think are unlikely to do much harm and may do some good. I understand the desire to put these out as major reforms, but I actually think they are relatively mild. They are also based on changes that have occurred in other jurisdictions and there is some evidence that the world hasn't collapsed because of them. Further, I think one has to not assume that just because regulation exists that it has made a case for itself.
I'm with Monroe - I think it's fascinating that people find professionalism important, but only insofar as it suggests a lot of interesting follow up questions. Is it competence? Zealous advocacy? Maintaining confidences? Avoidance of conflicts? Respect for the administration of justice? Handling clients compassionately? It may of course be all of those things, but those things can exist in tension, and which people value matters a great deal in knowing what they are looking for in employees, what the think they need to know as attorneys and how law schools ought to be education prospective lawyers.
Wow. I don't know quite where to start with the ethics of *that*.
Toggle Commented Jun 28, 2013 on Retraction at Legal Ethics Forum
This is a great question Stephen, and a real life version of the classic ethics problem that you note in your comment. If I was Snowden's lawyer the concern I would have would be less with the ethics rules, and more with the possibility of being convicted of obstruction of justice. If you know your client is trying to evade the criminal process, and you give them advice to allow them to do so, I would be concerned that you would be committing the actus reus/mens rea for obstruction. Also, there is an issue about whether your communications with your client would remain privileged, or whether they would fall within the criminal communications exclusion (in Canada I have opined that they would not remain privilege)
They went down from 2011 to 2012 (6%); it's not clear from the post what happened before that.
We agree on your last paragraph Stephen, but with respect to your colleague there are two possibilities: either s/he is familiar with the work of theoretical legal ethicists (who usually end up on a unifying ought of some kind) or s/he isn't. If s/he isn't I'm not sure why his or her views are of any interest; if s/he is then his/her views seem perverse given what those theorists say. It is for that reason that I edited out of my original comment on this story the rude things I am inclined to say about international law (e.g., with respect to its relevance). At the end of the day I know little to nothing about it, and my views on it would be deservedly condemned as ill informed.
Stephen, theory doesn't have to be impenetrable nonsense ("there is no 'ought at all,' reconciling all the 'oughts' into a seamless 'ought' blah blah") to be theoretical. By theory I mean only looking critically and conceptually at the subject, in this case the obligations of lawyers and the regulations/regulatory structures that govern them. With respect, your comments belittle the stunning work of theorists like Freedman, Fried, Wasserstrom, Luban, Simon, Wendel, Dare and others, and the insights that they have brought to the content of lawyer's professional obligations.
Just have to quibble with the assertion that ethics has no theory. Like any area of law it can (and should) be analyzed through "ought" as well as "is", and critical analysis usefully employs theoretical perspectives. And of course interdisciplinary insights through economics/market regulation and behavioural psychology can be terrific and illuminating. Having said that, I do think that PR and ethics require you to care quite a bit about the lives and experiences of practicing lawyers, and I think the stereotype of legal academics as really not caring about that sadly has a grain of truth in it.
I basically agree with this (although at the U of C student evals are available to students, and Ratemyprofessors doesn't seem to be much used) and I also basically agree that student evaluations are a good measure of professorial quality. Having said that, I don't think they are a perfect or wholly satisfactory measure. When I began teaching I know that I taught my students a few things that were, well, wrong. But my students didn't know that - they just liked that the wrong information was humorously and confidently delivered. I also think it is possible to game the evaluation process - e.g., 100% finals are good for course evaluations since the students don't have any reason to feel cross with the professor yet. So I guess the question I would ask is whether even if Ratemyprofessors is as good a measure of professors as traditional evaluations, how good a measure is it overall, and are there any other measures that might be better. I am helpfully asking this question because I don't have any answer to it.
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Milan I agree with you whole heartedly. In general I think the circumstances of legal practice - whether it be in-house, large firm, small firm - make a great deal of difference for the types of ethical dilemmas a lawyer faces and as to how a lawyer is able to perceive or resolve them. Circumstances can create a sort of ethical blindness - to not seeing the true nature of the choices that you are making.
Update: Ben Perrin, the special counsel, denies that he had anything to do with it:
What strikes me is that the numbers are just generally tiny - with the exception of Victoria only around 1 or 2 in 100 commuters are traveling by bicycle in any of these cities. There is a range between them, but it's inconsequential as a mode of transport everywhere. So the message might be that if cycling is cool, it is certainly not common (is that why it is cool?).
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I know Edmonton is colder than Calgary Patrick, but I can say that cycling in Calgary is fantastic. I am a regular cyclist commuter here except when there is ice or snow on the road, which usually lets me cycle at least one day in every month of the year (and of course most days for much of the year). Here - and I think Edmonton is the same - there are fantastic bike paths that allow people living in even far suburbs to bike into the city without being on roads at all. Plus new bike lanes and paths are being added all the time. And better still, the main bike paths are ploughed even though the roads almost never are. It's true that it can be cold, but the clothes they have for cycling nowadays are terrific, and allow cycling (for me) up to about -15 or so. I agree with the gender breakdown, at least here. My observation of commuter cyclists is that they are overwhelmingly male. I think for many women the challenges of clothes/make-up etc. are prohibitive.
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Giovanni - a laugh out loud of recognition and amusement.
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You and I are the same person (surprise!). The only exception for me is that I am OK with spelling and grammar errors in handwritten exams but not in essays. And students who misspell my name in an e-mail asking for assistance are very annoying. I actually don't mind when students ask whether something is on the exam, or how to prepare for the exam or anything like that. In some of my classes I cover a huge amount of material and it seems reasonable to know whether it is something they will be tested on or not.
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Brad, I think your response is too harsh. The ethicist says "within the existing rules". Whether or not a loophole is available "within existing rules" is a question of legal interpretation - i.e., what the "existing rules" actually provide, properly interpreted. The ethicist isn't saying "take advantage of procedural lacunae" or "you might be able to get away with it". That the ethicist didn't adopt an interpretive stance towards the law isn't surprising and that s/he didn't is not, to my mind, a fair criticism of the advice given. I don't know how the law works in the US, but the Canadian courts are absolutely clear that tax planning and loophole pursuing is permissible, and have narrowly interpreted our general anti-avidance rule. A tax planner who didn't "loophole" would, given that, be taking away from the taxpayer an advantage that the courts permit.
I would add this too, that I think there is a tendency in universities to think that any attempt to change or recognize the inadequacies - the useless scholarship, the unrewarded teaching, the pointless committees - will necessarily mean eliminating the things that are good. I can't believe that that's true. And I question, e.g., whether the best use of CAUT's resources is defending a professor who used research funds for personal matters. I understood that to be your point as well, and my point was really about the challenges that go in figuring out how to make it better.
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These are difficult (almost existential) questions. Perhaps, e.g., it is necessary to create the structure that permits the generation of 1000 crap articles in order to produce the 1 great article. That doesn't make the 999 articles of value, but without the structure you won't get the one that is. Is the metric of an article how many people read it, or how important an article is to a particular question that, itself, matters. E.g., it may be that very few people care about the question of how proceeds from the disposition of a utility asset are distributed (although I was pleased to run into one of the handful of people who does at a cocktail party once - he and I were the life of the party) but that question may in fact matter a great deal to the people whose task it is to determine the rates of the utility, and utility rates matter to almost everyone. What if an academic article makes people in authority cross - e.g., it tells them what a bad job they are doing. They aren't likely to view that as very valuable, although it may in fact be accurate and elucidating. Also there is (maybe) an assumption in your post that teaching uncontroversially creates value. I am not sure (and I think you agree with me) that as we make post-secondary education more accessible we are in fact delivering value to people that we teach. I often encourage people to think seriously about a trade rather than going to university. Would reshifting our mandate to teaching make the world better off? I am not sure whether it would or not - and I mean that non-rhetorically. I do agree that post-secondary education needs evaluation and rethinking. But I am not at all sure that we have any idea how to do that sensibly. And I am very sure that neither the federal nor provincial government, nor most people who work in universities, do either.
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As Andy knows I line up with Monroe and John on this one. With that said, in Canada there is no exception to confidentiality to allow disclosure in such circumstances. Under the doctrine of privilege, however, there is an innocence at stake exception. For that exception to be satisfied it has to be shown that the privileged information goes to demonstrating innocence on an element of the offence (e.g., not just the credibility of a witness) and also that breaching the privilege is the only way to obtain the information and is also the only way for the accused to establish his or her innocence. If the exception is satisfied then the information may be disclosed to the defence counsel for the accused but not to the Crown. Once the Crown learns of it - and this is the key point - the privilege holder is entitled to both use immunity and derivative use immunity with respect to that information. That is, it cannot be used against the privilege holder directly and nor can other information or evidence obtained as a consequence of the disclosure. This perhaps would eliminate your dilemma John. A caveat though: I don't know of any case in which an accused has actually been able to use the innocence at stake exception. In one of the cases at the SCC the information did not go to an essential element and in the other case the Crown case was viewed as so weak that it wasn't necessary to allow the disclosure in order to prevent conviction. The courts seem quite reluctant to pierce privilege in these circumstances. Also of course the lack of an exception to confidentiality makes it less likely that a person will ever know of the existence of the information. Alice
Milan, I think these views are quite typical of prosecutors. In Canada there was a case called Krieger v. Law Society of Alberta in which a lawyer had failed to provide proper disclosure and a complaint was made to the law society of Alberta. When the Law Society sought to discipline the prosecutor this exact argument was made - we will deal with matters internally and, as well, it would violate prosecutorial independence to allow law societies to proceed in this way. The SCC disagreed but set out relatively narrow standards for when a law society can discipline lawyers. And in the end Canadian law societies have shown no appetite whatsoever for doing so - and then what happens is that it is only the internal mechanisms that do any work (and of course the mere members of the public have no knowledge about how that works or of its effects). Alice
Hi Stephen, Have fewer law school places and fewer lawyers - as Noel said, there is a real supply and demand point on this. Of course there are issues with that too, especially in terms of access to legal services. Law faculty salaries are lower in Canada. Based on public reporting (and remember that every Canadian law school is at a public university which receives state funding) a tenured professor in Canada can expect to earn about $100-$220K (with someone at about 10-15 years out earning in the 110-140 range). The professor who I would guess is the highest paid in Canada - (a very eminent and senior professor at the U of T), earned about $284K in 2011. But that is aberrational. A Canadian law dean would earn in the range of $180-$250K. Because it is not regulated as it is in the US I would guess that there are fewer faculty members per student at most Canadian schools, although I don't know the numbers on this. I know that most of the urban schools, including ours, rely quite significantly on adjuncts.
Toggle Commented Feb 28, 2013 on OH, CANADA at Legal Ethics Forum