The end of a calendar year invites reflection on the months just passed. Inspired by Alice Woolley (now Justice Alice Woolley) who compiled several year-in-review lists when she was a professor (see, for example, here, here, here and here), in this column I look back on five areas of key developments in lawyers’ ethics and lawyer regulation in 2023. I also flag several major court cases and disciplinary proceedings from 2023, many of which are ongoing.
Five Areas of Key Developments
1. Generative AI and the delivery of legal services. In November 2022, ChatGPT was released to the world. This led to 2023 being a year of tremendous excitement about legal AI tools.
The legal ethics dimension of AI hit prime time with the high-profile case of a New York lawyer who included fake cases in court submissions, which he eventually acknowledged were supplied to him by ChatGPT. After this case was publicized, the Manitoba Court of King’s Bench issued a practice direction mandating that “when artificial intelligence has been used in the preparation of materials filed with the court, the materials must indicate how artificial intelligence was used.” A similar disclosure direction was issued around the same time by the Yukon Supreme Court. Following critiques by some that the disclosure requirements embedded in these practice directions were too vague and potentially an overreach (see, e.g. here and here), some other Canadian courts – including the Superior Court of Quebec and three Alberta courts collectively – opted to simply caution the profession and parties about AI use rather than create new disclosure mandates. We have not only seen different approaches to this issue across Canada, but there is at least one instance of distinct approaches taken within a single province: the Nova Scotia Provincial Court has opted to require disclosure, while the Nova Scotia Supreme Court has adopted the cautionary approach. Court responses to AI are in their early days. It will be interesting to see their impacts and whether a more unified Canadian approach might eventually be adopted.
For their part, Canadian law societies are studying the matter and starting to offer guidance. The Federation of Law Societies of Canada (FLSC) devoted its annual conference this fall to generative AI. In November 2023, the Law Society of British Columbia published a new practice resource on professional responsibility and generative AI. This parallels developments in other common law jurisdictions such as the United States, England and Australia where guidance for lawyers on the ethical use of generative AI is starting to emerge. I expect more of this type of guidance to come out in 2024, both in Canada and elsewhere.
2. Responses to the Truth and Reconciliation Commission’s Call to Action 27. In 2015, the Truth and Reconciliation Commission released its Final Report, along with 94 Calls to Action. Call to Action 27 reads:
We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
In response, several Canadian law societies, beginning with the Law Society of British Columbia in 2019, have mandated Indigenous cultural competency training.
Early in 2023, such trainings were in the spotlight after 50 Alberta lawyers petitioned for a special meeting of the membership to vote on a resolution to repeal the Benchers’ authority to mandate CPD requirements. The vote was largely understood as a de facto referendum on the Law Society of Alberta mandating that its lawyers undertake an Indigenous Cultural Competency Education program, titled “The Path”. Ultimately, thousands of Alberta lawyers showed up to the special meeting and overwhelmingly voted against the motion and in favour of retaining the CPD authority (the final vote was 2609 against and 864 in favour).
Also notable in 2023 is the Law Society of Manitoba’s launch of its mandatory Indigenous Intercultural Awareness and Competency training and the Law Society of Yukon’s announcement that it would be developing Indigenous cultural competency training for its lawyers.
For its part, the FLSC describes its response to Call to Action 27 as “multi-faceted and ongoing” (for an overview, see here and paragraphs 10-14 in this document). One recent step relates to the professional conduct rules governing lawyers. In November 2023, the FLSC launched a public consultation on draft amendments to the Model Code of Professional Conduct that seek to “address the issues raised in and underlying [Call to Action 27].” The proposed amendments are extensive, touching multiple areas of the Model Code, including, for example, the competence and quality of service rules, as well as the rules that govern lawyers when they act as advocates in adversarial proceedings and as articling principals. The consultation remains open until May 31, 2024.
3. Deep dives into lawyer competence. Both of the above topics implicate questions of lawyer competence. What does it mean to be a technologically competent lawyer in a generative AI era? When will all Canadian law societies meet the TRC’s call to ensure that lawyers receive appropriate cultural competency training and what Model Code revisions to the competence rules are needed?
In 2023, there have also been some more broad-based initiatives tackling lawyer competence. In June, the FLSC issued a discussion paper about its review of the National Requirement, which is “the standard that specifies the knowledge and skills [that law graduates] must acquire to be admitted to bar admission programs in the Canadian common law jurisdictions.” The National Requirement is reviewed every five years. Consultations have taken place on proposed revisions, and presumably, 2024 will see the announcement of a revised National Requirement framework. Among the issues under review are the proportion of instruction that must be delivered in-person and how the National Requirement should address the TRC’s Call to Action 28, which is directed at law school education.
Also this year, the law societies of Alberta, British Columbia, Manitoba, and Saskatchewan announced that they are jointly developing a “Western Canada Competency Profile” (WWCP). The law societies have stated that the aim of the WWCP is to “help inform lawyer training and education, including bar admission program development and experiential learning opportunities.” Lawyer feedback on a draft of the WWCP was recently solicited by the law societies, which have said that they expect a finalized profile to be published in spring 2024.
4. Law society governance and the future of self-regulation. Although “law society governance” might not sound like a headline-grabbing topic, questions about who runs law societies and how were at the forefront in 2023.
In British Columbia, the provincial government was expected to introduce its “single regulator” legislation in Fall 2023. This has now been delayed to spring 2024. While the details of this legislation remain to be seen, the government’s Intentions Paper outlines the creation of a regime whereby a single entity would regulate all legal service providers (e.g. lawyers, notaries, and paralegals). The government has also proposed a “modernized regulatory framework” that includes “a competent, nimble, and skills-based board, composed of a diverse group of legal service providers and others who individually and collectively have a deep understanding of the regulator’s public interest mandate.” Although the Intentions Paper indicates that there is “no intention of implementing changes that would see a shift away from what is commonly referred to as ‘self-regulation’”, concerns about the impact of any eventual legislation on the future of self-regulation and lawyer independence is top of mind for many (see, e.g. the Law Society’s formal response and the commentary in this article). Will 2024 see new legislation introduced and, if so, what will it look like? If legislation is passed, will B.C. reforms create momentum for similar changes in other Canadian jurisdictions?
Governance issues were also front and centre at the Law Society of Ontario’s spring Bencher Election. The election was dominated by competing slates of candidates: the Good Governance Coalition (GGC) and FullStop. The GGC “swept” the election, although several FullStop candidates have now taken up Bencher seats due to vacancies created by elected GGC Benchers being appointed to the bench and the vacancy of a seat created by the Treasurer’s election (see here for more details). Part of the GGC’s stated vision during the election was support for “evidence-based” governance. Over the next months and years, we will see if and how this translates into practical reforms at the LSO. In its election materials, the GGC also stated that its candidates expressed “support [for] establishing an LSO working group to determine whether it needs electoral reform to prevent the running of slates in Bencher elections.” Will the next Bencher election look radically different? Time will tell. One thing that is on my radar for upcoming elections is whether the LSO will adopt much-needed campaign finance reform measures (see here for more detail).
5. Focus on lawyer wellness. In late 2022, the results of the first comprehensive national survey on lawyer wellness were published along with recommendations (see here for the full report). This survey was carried out as part of a partnership between the Université de Sherbrooke, the FLSC and the Canadian Bar Association, in collaboration with Canada’s law societies. The survey results were concerning, if not entirely surprising. Among other things, the report documented high levels of psychological distress among lawyers with especially high rates among lawyers belonging to equity-seeking and marginalized groups. The release of the survey results and recommendations was “Phase I” of the process, with “Phase II” involving interviews with lawyers across Canada to explore differences by province and territory. The Phase II interviews were expected to be concluded this year, with reporting to carry over into 2024.
Alongside this empirical work, law societies, bar associations and lawyer associations held major education events in 2023 devoted to lawyer wellness and mental health (see, for example, here, here, here and here). Enhanced supports for lawyers have also been launched (see, e.g. here).
Lawyer wellness has important legal ethics intersections. For example, while lawyers are professionally obligated to act with civility towards others, the Phase I report found that Canadian lawyers were experiencing high levels of incivility from colleagues and observed that incivility was “a key factor influencing people’s mental health.” The Toronto Lawyers’ Association published a report earlier this month underscoring the connections between lack of civility and poor mental health.
Lawyer unwellness may also lead to competence issues and other behaviour by lawyers that attracts the disciplinary attention of law societies. In recent years, Canadian law societies have made alternative disciplinary streams available to lawyers experiencing underlying health issues. This year, connections between lawyer wellness and competent legal practice have been further underscored by the fact that lawyer wellness is one of several key topics highlighted in the FLSC’s National Requirement Discussion Paper and, as I understand it, there are also references to lawyer well-being in the draft WCCP.
Cases Watched and to Watch Out For
The significant attention that was devoted in 2023 to the five areas discussed above will undoubtedly carry over to 2024 and beyond. These are areas of continuing concern and activity. In the spirit of looking back and looking forward, I’ll end this column by discussing some noteworthy court cases and disciplinary proceedings from 2023 that feature lawyers’ ethics and/or lawyer regulation, many of which are ongoing.
In Alberta, there have been challenges to the requirement that new lawyers take a mandatory oath of allegiance to King Charles. These challenges raise interesting questions of law, including constitutional questions as to whether the oath of allegiance violates constitutional guarantees to freedom of religion and equality. The claimants in these cases are lawyer applicants who, among other things, understand their belief systems to be inconsistent with pledging allegiance to a monarch. An excellent summary of these legal challenges can be found in this March 2023 article by Anna Lund. In October 2023, a decision was released in one of these cases wherein the judge held that the oath requirement was not unconstitutional. Last week, it was publicized that a notice of appeal has been filed in this case.
Other legislation impacting lawyers is under constitutional scrutiny in a legal challenge brought this fall by the FLSC challenging provisions of the Income Tax Act (the Act) that require legal counsel to report certain information to the tax authorities. FLSC characterizes the provisions as “an unconstitutional attempt to turn legal professionals into agents of the state” and has alleged violations of both section 7 and section 8 of the Charter. In late November, the British Columbia Supreme Court issued a permanent injunction to exempt legal professionals from the operation of the provisions until the constitutional challenge is determined on the merits.
Also in Alberta, three former provincial Ministers of Justice faced law society scrutiny this year. In July 2023, it was announced that Kelechi (Kaycee) Madu, KC had been cited by the LSA. The citation alleges that Madu “engaged in conduct that undermined respect for the administration of justice when he contacted the Edmonton Police Services Chief of Police regarding a traffic ticket he received on March 10, 2021, and that such conduct is deserving of sanction.” This incident received previous scrutiny in a report authored by retired Justice Adèle Kent. In September 2023, law society disciplinary proceedings closed against Tyler Shandro, KC in relation to allegations that he, among other things, “attended the private residence of a member of the public, behaved inappropriately by engaging in conduct that brings the reputation of the profession into disrepute, and that such conduct is deserving of sanction.” Shandro was appointed Minister of Justice while facing law society scrutiny for his conduct, although he has since vacated the position. As of the time I am writing this column, the LSA website notes that the decision in Shandro’s matter is still reserved. Finally, a third former Alberta Justice Minister, Jonathan Denis, KC is scheduled to have a law society discipline proceeding in February 2024. Denis’ law society citation contains two allegations: first, that Denis acted for an individual while in a conflict of interest; and second, that Denis threatened to make a complaint to a regulatory authority in an attempt to gain a benefit for his client. The LSA’s scrutiny of Denis follows previous legal proceedings in 2022, wherein Denis was convicted and subsequently cleared of contempt of court charges (see here for more detail).
Across Canada, the conduct of litigators was also under scrutiny throughout 2023. Included among the most prominent cases are disciplinary proceedings against an Ontario lawyer, Gary McCallum, in relation to an affidavit in which he stated, while defending a civil claim of sexual abuse of a minor, that “… a fourteen or fifteen girl is a sexually mature young woman, not a “child”, as the term is conventionally understood” (see here and here for more detail). The disciplinary hearing in this matter took place earlier this month. As of the time I am writing this column, there appears to be no published determination.
Another Ontario case, Jessica McGaw v. Sobeys Capital Inc, was reported in Slaw to be one of the three most-consulted English-language decisions for November 2023. The reported case involved a motion for recusal and an unusual incident which was described by the court as follows:
While [a] witness was on the stand, counsel for the Plaintiff searched [and] called up on their computer images of Charles Manson and then huddled together and laughed between themselves. Evidently, counsel were of the view the witness bore some resemblance to the notorious cult leader who was imprisoned for murder and conspiracy to commit murder, having coerced his followers to kill a number of people.
This was done within a direct sightline of the jury box. It was witnessed by a juror who disclosed it at the first opportunity when it could be reported in a confidential way. The juror indicated he found the behaviour to be very inappropriate and he wanted it brought to my attention.
I was at the time, and I continue to be, of the view that the image and the impression of likening the witness to a manipulative serial killer could not have been dispelled with a limiting instruction to the jury.
Ultimately, a mistrial was declared in the underlying case.
Litigation behaviour by Crown prosecutors was also somewhat unusually in the spotlight in 2023. Earlier this month, the Supreme Court of Canada in R. v. B.E.M., commented in a judgement delivered orally that it was “common ground that, in closing submissions to the jury, Crown counsel should not have recounted an anecdote about a personal childhood memory that had no connection to the evidence. Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel” (internal citations omitted). The Supreme Court, however, agreed with the Alberta Court of Appeal below that “Crown counsel’s improper anecdote did not render the appellant’s trial unfair.” Also, in late 2023, it was announced that the LSO had launched disciplinary proceedings against an Assistant Crown Attorney, Gerrit Verbeek, on allegations that he “engaged in discriminatory conduct and/or harassment against Indigenous accused persons”; “failed to provide legal services to the standard of a competent lawyer” and “failed to act honourably as a prosecutor and encourage public respect for the administration of justice.” Media coverage of this case can be found here. A hearing on the merits has not yet taken place.
Finally, there are some high-profile cases involving lawyers facing criminal charges should also probably be noted. In April, it was reported that Ottawa lawyer James Bowie was arrested and was facing charges of harassment, extortion and uttering threats. In June 2023, it was further reported that Bowie was facing “a new charge of extorting a former client for oral sex.” A report by the CBC earlier this month states that a five-day criminal trial has been scheduled for September 2024 and that Bowie has indicated that he is confident that he will be acquitted. Alongside criminal proceedings, Bowie is also facing a civil lawsuit from a former client and has been suspended from practice by the LSO.
In October 2023, two Alberta lawyers, Randal Jay Cameron and John Carpay, reached a plea deal in relation to criminal charges stemming from their involvement in hiring a private investigator to surveil a Manitoba judge. Under the plea deal, the lawyers have been banned from practising law anywhere in Canada for three years. Previously, in August 2023, the Law Society of Manitoba permanently banned both lawyers from practicing law in Manitoba, “except with respect to the law of a home jurisdiction.”
And That is a Wrap!
It has been an eventful year, with important and, in some cases, surprising, developments in lawyers’ ethics and lawyer regulation. No doubt even more could be said. And what I did include in the above discussion is admittedly subjective – others may have chosen to highlight different things. I will leave it here, however, and wish readers all the best for the end of 2023 and the beginning of 2024. Undoubtedly, the next twelve months will bring even more interesting and important legal ethics developments!
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