Substitution of defense attorneys “a travesty of justice”

This seems to have been a novel, if misguided attempt on the part of a trial judge to save the Georgia legal aid system some money, and move a somewhat slow moving criminal case to trial expeditiously.

Why you shouldn’t sleep with your clients

News that Bay Street law firm Borden Ladner Gervais, and partner George Hunter are being sued by Mr. Hunter’s former client over a “romantic/sexual” affair he had with her in 2003 raises, once again, the thorny ethical issue of whether lawyers should be allowed to maintain this type of relationship with a client.  Mr. Hunter plead guilty to charges of professional misconduct in February 2007, and was suspended from practice for 60 days.

What makes this case interesting is that at the same time he carried on the affair over which he is now being sued, Mr. Hunter sat on a disciplinary panel for the Law Society of Upper Canada that also dealt with allegations of sexual involvement between another Ontario lawyer and that lawyer’s client.  That lawyer was disbarred.

Newpaper editors silenced for publishing Danish cartoons – Fighting the good fight

In Canada and the United States, we expect news items like this from Jurist, to deal with other countries.

This particular editor hailed from Belarus – a nation not well known for its tradition of freedom and democracy. 

We don’t, however, need to look that far.

Why did Keen have to be fired?

So asks the Toronto Star in this editorial.

Why indeed?

Canadian Nuclear Safety Commission head fired

It appears that Canada’s Natural Resources Minister, Gary Lunn, has dismissed Linda J. Keen from her position as President of the Canadian Nuclear Safety Commission (“CNSC”).

As I indicated in a previous posting, although administrative tribunals in Canada enjoy only the degree of institutional independence that their enabling statute grants them, my analysis for the CNSC is that it is entitled to significant independence, considering that its enabling statute refers to it as “… a court of record”.  Also significant is the fact that its work deals with serious public safety issues, and its membership is employs specialized knowledge.

That degree of institutional independence imposes on tribunal members an obligation to reject any attempt at influencing its decision making in particular cases before the Commission.  Ms. Keen carried out that obligation well, and her efforts have now been rewarded with the loss of her presidency on the tribunal, although she remains a member.

This government’s handling of the affair undermines public confidence in the workings of administrative tribunals, and sends a troubling message not only to the members of other administrative tribunals, but to every party with proceedings pending before them.  The potential damage to the administration of justice before these tribunals should not be underestimated.

Step away from that Nuclear Safety Commission

Linda Keen’s response to Natural Resources Minister Gary Lunn’s recent dealings with the Canadian Nuclear Safety Commission over the National Research Universal (NRU) nuclear reactor at Chalk River, Ontario, raises 2 very interesting questions about quasi-judicial tribunals in Canada:

1. Just how much independence can one expect from an administrative tribunal?

2. How far should members of an administrative tribunal go to protect that independence?

The ethics of racy divorce ads

This, from Above the Law and Legal Blog Watch:  The Chicago law firm of Fetman Garland & Associates has been generating some controversy with its “Life is Short – Get a Divorce” ad campaign.

Corri Fetman, one of the partners in the firm, is reportedly the female in the advertising photographs, and is now apparently writing a regular column for Playboy magazine on “Love and the Law”.

Carolyn Elefant’s criticism on Legal Blog Watch centers around her perception of whether the campaign will be effective at attracting clients.  That misses the point.

Uncivil litigation

There is an excerpt from a video deposition that has been making the rounds on YouTube for about the last year or so, that a lot of people seem to find funny.  I am not one of them.

I suppose the custom would be for me to link to it, but I am not going to do that.  I am not doing it because typically, most jurisdictions have rules that say that evidence obtained in a lawsuit during the discovery process cannot be used for any collateral purpose.  How the video made it onto the internet, assuming that rule is operative in the state from which it originates, raises a whole series of other troubling questions.  In any event, my view is that it would be a violation of that rule for me to further distribute the video.

Nevertheless, the disturbing content is a good case for ethical analysis.

The Andrew Speaker Controversy (Part II) – An analysis under Canadian rules

The facts surrounding the Andrew Speaker controversy provide a very interesting case study for an inquiry into how far professional disciplinary regulation in the legal profession ought to reach into personal activities unrelated to the lawyer’s professional practice. I would like to emphasize once again, that none of the allegations made against Mr. Speaker have been proven in court. Nor has any investigation into Mr. Speaker’s conduct been commenced by any disciplinary tribunal to which he may be subject.

This analysis proceeds on the assumption that Mr. Speaker has breached no laws of his own any other country, and that the allegation that he traveled against the advice of his doctors, as detailed here.

As my December 28, 2007 article demonstrates, on these assumptions, Mr. Speaker would likely face no discipline from any disciplinary authority over the legal profession in the United States.

How would he fare in Canada?

Reinstatement after disbarment

This Legal Profession Blog article raises the interesting question of when disbarred lawyers should be reinstated.In New York, apparently, the payment of 15 or 20 bribes over a period of 13 years, to insurance company adjusters is no impediment to reinstatement for a disbarred lawyer.  Thomas J. Culhane argues that no one was hurt by his actions, since the payments were only to expedite settlement, and did not increase the amounts that the insurers would have paid out to his personal injury clients.

A majority of the Appellate Division of the New York Supreme Court was content to rest its finding that Mr. Culhane “…possessed the necessary character and fitness to warrant reinstatement” based upon his claims of remorse.

The dissent found that the long period of time over which these payments occurred and “…the persistence of [Mr. Culhane's] position that  the insurance companies were not harmed by that conduct…” belied any finding that he was now fit for reinstatement.

Mr. Culhane’s persistent position is plagued by at least 2 serious problems.  Firstly:  Assume, for the time being, that he is correct, and the insurers were not harmed by his conduct.  How do we know?  Attaching compensation figures to personal injuries is a discretionary exercise, which takes into account innumerable factors that differ from case to case.  The fact is that there is no way to verify this claim.

Secondly:  As a lawyer, Mr. Culhane is an officer of the court, and it is not enough simply to say that his conduct did not involve the courts.  When he is negotiating the settlement of a personal injury claim, he implicitly or explicitly invokes the rights that the courts would likely grant his client.  The payment of bribes carries with it the appearance of subverting the judicial process, and brings the administration of justice into disrepute.  It does not matter whether or not the insurance company would have paid the same amount in any event.  The end result is a collateral benefit to the lawyer in the form of an earlier payment of fairly substantial fees.

In the end, much depends on the type of profession we as lawyers want.  In my view, the reasoning of the dissent is much to be preferred.