Sunday, June 4, 2017

Issues In Imposing Criminal Costs Raised by the 2017 SCC Decision in Jodoin


1.         Introduction

     This blog looks at the Supreme Court of Canada’s 2017 decision in Quebec (Criminal and Penal Prosecutions) v Jodoin, ("Jodoin").  The main issue in the case was the capacity of the Court to impose costs on criminal defence counsel.  In addition to describing the case, this blog critically examines the Court’s determinations and highlights a few points of concern in the Supreme Court’s reasoning, including the distinctions drawn by the court in terms of its own inherent powers to manage lawyers compared to law societies.

     The blog also questions the Court’s description of  ‘guideposts’ for seeking costs in criminal matters and considers several possible implications arising from the decision.  This includes the possibility of seeking costs from the Crown and some potentially unfortunate side-effects, which may either hinder judicial economy or discourage forceful advocacy by criminal defence counsel in the future.  While this case raises a number questions and concerns, it fits within a line of jurisprudence that is continuing to develop a distinct Canadian approach to the principle of Bar independence.  

2.         Background to the Case
     Mr. Jodoin was an “experienced criminal lawyer” (para 2) who filed two series of motions alleging bias against two different judges on the same day. The 1st set of writs would have resulted in a postponement of the hearing (para 5), but for the fact a different judge ended up hearing the matter and the motions were put aside. 

      The new judge attempted to begin the proceeding, but defence counsel objected to calling an expert witness on the basis that he had not received required notice and that he had not been able to examine the expert’s resume (para 6).  The presiding judge permitted the adjournment, but only until after the lunch break, during which time defence counsel drew up a 2nd set of writs challenging jurisdiction, and also alleging judicial bias (para 7).  The matter was subsequently adjourned and the Crown sought costs

      The Quebec Superior Court found the lawyer's actions to be unfounded, frivolous and of questionable legal value (para 9).  The Court determined that Jodoin’s actions represented a “deliberate” and “serious” abuse of the justice system at (para 11).  For its part, the Quebec’s Court of Appeal upheld the judgment disposing of the writs of prohibition, but set aside the costs award against the defence counsel.  While it acknowledged the power of the court to award costs in criminal matters, it found that the instant case did “not have the exceptional and rare quality” sufficient to attract such a sanction (para 14).

3.         Discussion of Supreme Court Judgment
     The majority of the Supreme Court, led by Justice Gascon, upheld the Superior Court decision to award costs against the lawyer as a “deliberate abuse of the judicial system” (para 3).  Though such awards are rare, the high court agreed that these circumstances represented an “exceptional” case that satisfied the criteria applicable (para 4).  In reaching this conclusion the Court raised several notable issues, which are examined below.

i)                                 Inherent Powers & the Primary Role of Law Societies?

     Though the Court found the power of the courts to impose criminal costs was ‘settled’, it later devoted several paragraphs to explaining the scope of the Court’s “inherent jurisdiction” on this issue(para 21). The Court also discussed the powers of courts and law societies to manage lawyers.  Here, the majority noted that Canadian law societies play a “primary” role of “public protection” (para 22), which is a wording choice that raises some issues.

     The Court’s focus on ‘public protection’ contrasts with the more usual jurisprudential description of legal regulators to act in the ‘public interest’.  In at least some jurisdictions the statutory mandate to act in the ‘public interest’ though, is something that is relatively recent, see discussion of this point e.g., here.  As I’ve noted before, this description of lawyers and legal regulators acting historically in the public interest is also flawed in the sense that it ignores a long and complicated history, where the law, lawyers, judges, and the court system have all sometimes demonstrated a mixed record in the advancement of public values, see here.

     In addition, the role of law societies is usually regarded in the context of broader principles like rule of law.  In this sense, though authorized by statute, Canadian law societies are usually not regarded principally as government bodies dealing with public or consumer protection.  More frequently, they are described as democratic associations that historically have acted as intermediate institutions between governments and citizens, see e.g. here.  Consequently, the Court’s identification of ‘protection’ as a law society role, but also as its primary purpose, is potentially a significant variance from the traditional view, which could presage a new emphasis on legal regulators as governmental bodies, akin to other kinds of administrative consumer protection tribunals.

ii)         ‘Preventative’ vs ‘Reactive’ Roles of Courts and Law Societies?

     The court also distinguishes more clearly its role in legal professional regulation.  While other courts have suggested the role of law societies to regulate the profession is unqualified (see e.g. the OCA 2016 decision in Groia at para 102), the Supreme Court describes the ‘preventative’ role of the courts to protect the administration of justice.  By contrast, it also describes the complementary role of law societies as “reactive” (para 22)

     On this point not a lot of detail is provided to define what the Court sees as appropriately within the scope of the “reactive” role of law societies.  However, the Court immediately jumps to what at first appears as something of a non-sequiter, since it does not actually seem to be a current issue in the case, when it says subsequently, “there is nothing to prevent the law society from exercising in parallel its power to assess its members’ conduct and impose appropriate sanctions” (para 23).  

     However, the court’s assertion about the “parallel” power of the law society may strategically speak to that same issue, the respective roles of the law society and the courts, that will likely be considered in the future Groia litigation.  There, a substantial position of the dissent opinion was that the management of in-court proceedings is exclusively within the constitutional authority of the judiciary.  The Supreme Court’s comments on the “parallel” authority of law societies in Jodoin could thus be read to pre-empt that future line of argument in the Groia appeal, currently scheduled to be heard in November 2017.

iii)        Guideposts For Imposing Costs?

     The Court also provided what it called two ‘guideposts’ for cost awards.  For the 1st guidepost the Court distinguished between awards of costs in civil and criminal proceedings.  Here, the Court observed that in criminal proceedings awards of costs are purely punitive (para 31).  The Court also contrasted the role of civil lawyers to promote dispute resolution in contrast to the more adversarial role of criminal defence counsel to challenge (para 32).  While in many cases the distinction drawn by the Court might be valid, the contrast between the relative adversarialism of criminal defence and civil litigation lawyers seems incomplete.  That is, arguably there are plenty of civil counsel who, despite their obligation to promote resolution, can be just as adversarial and zealous as their criminal defence counsel colleagues.

     The 2nd guidepost described by the Court suggests that it is not appropriate to consider the lawyer disciplinary record in imposing costs (para 33).  Here the majority suggests, courts should only consider whether or not the lawyer was acting in bad faith.  This point by the Court would perhaps have been more persuasive if in later discussion it had not in fact raised the prior record of the lawyer and discussed it (paras 46 – 48).  However, to be fair, the Court notes it was not raising the prior record as improper evidence of a general propensity or bad character, but instead as admissible evidence of the respondent’s state of mind when he filed the proceedings (para 48).

     Though not addressed in the decision, a further guidepost that would have been helpful is whether or not the principles for seeking costs in criminal matters also apply to seek costs from the Crown. The last few years have seen a shift in the willingness of courts to allow for the review of the professional behaviour of prosecution lawyers.  This has included the movement away from the traditional view, that Crown exercises of discretion were unreviewable, to a less strict position that some Crown behaviour may be subject to scrutiny by the regulator and the courts, including exercises of prosecutorial discretion and trial management authority, see e.g., my comment on this issue here. 

     It is presently unclear whether or not the same guideposts for the imposition of costs would apply in a criminal case involving a Crown counsel.  However, there appears to be nothing in the reasoning of the decision that would preclude it, and the possibility that Crown Attorneys could be similarly responsible for costs would be consistent with the broader trend towards increased scrutiny of Crown behaviour in Canadian law.

iv)        The Dissent and the Appeal to Judicial Economy

     In Jodoin the Court found the lawyer’s conduct “particularly reprehensible” motivated by an attempt to postpone, rather than based in sincere belief as to the merits of the writs of prohibition (para 42).  In this case the lawyer’s behaviour warranted an extraordinary response since his conduct was “for a purely dilatory purpose with the sole object of obstructing the orderly conduct of the judicial process”.

     The dissent took issue with this characterization of the lawyer’s behaviour in this case.  Here they pointed out that the applicable rules actually had entitled the lawyer to an adjournment.  The dissent also noted the hearings judge had wrongly suggested Jodoin had already examined one of the witnesses.  In this respect, the dissent concluded that while the incident could “easily be seen as an error of judgment”, it was “hardly one justifying a personal costs order” (para 74).

     A curious aspect of the majority’s characterization of the lawyer’s behaviour is its further appeal to judicial economy to justify imposing a costs award.  Here, Justice Gascon noted the Supreme Court’s recent widely publicized decision in Jordan which “emphasized the importance of timely justice and noted that all participants in the criminal justice system must co-operate in achieving reasonably prompt justice” (para 56).

      The point of the majority seems to be that permitting potentially frivolous proceedings to pass without consequence risks further burdening an already overtaxed system.  However, as noted by the dissent, the lawyer’s behaviour in this case, though perhaps injudicious, was not entirely unwarranted.   Given these circumstances, the decision in Jodoin raises the question of the Crown’s capacity to raise and successfully seek costs awards against forceful defence advocates in the future.  Ultimately, in my view this may have two alternate, but equally unfortunate side-effects.

     On the one hand, it is hard to see how recognizing the Crown’s authority to seek costs in criminal matters is going to speed up the justice system.  In this respect, imposing costs on criminal defence counsel was previously unusual.  If the Crown attempts to seek costs more frequently as a result of this decision, it may well increase the amount of court resources used to address this issue.  On the other hand, if instead this decision has a ‘chilling effect’ on criminal defence counsel and causes them to hesitate to raise novel or unique legal and procedural challenges, then this decision will be detrimental, not only to all criminal defendants, but to the rule of law itself in our justice system.

4.         Conclusion
     The Jodoin case fits within a line of decisions refining Canadian approaches to lawyer independence and law society regulation over the last few years. This includes the 2017 Supreme Court decision in the professional lawyer disciplinary case of Green v. LSM, which I commented on prior to its hearing at the Supreme Court last fall. Green ultimately lost that appeal, in which the provincial law society sanctioned him for not complying with his mandatory CPD obligations. 

     Interestingly, in both Green and Jodoin, Justices Abella and Coté joined together in dissent to support the views of an individual lawyer facing sanctions for his professional behaviour.  The arguments of the dissent and majority in these cases may well set out the fault lines for future determinations by the Supreme Court on these kinds of legal questions. 

      Further cases in this series will likely include the Groia decision, which will consider many similar issues, as well as the upcoming hearing involving Trinity Western University, which will also consider the institutional role of law societies. Ultimately, despite some unanswered questions and concerns about the decision, the recent Supreme Court of Canada decision in Jodoin falls well within this line, which is dynamically shaping a unique approach to both the individual and institutional independence of the Bar in the Canadian legal system.

Sunday, April 16, 2017

"One of the Good Ones" - Remembering Justice Archie Campbell


"Begin.  To begin is half the work, let half still remain; again begin this, and thou wilt have finished."

     Marcus Aurelius

It's hard to know where to begin with Archie Campbell, who died 10 years ago.
 
At the start of my legal career at Ontario's Superior Court, I was fortunate to have him as my mentor for a year.  I am not sure that I understood at first how lucky I was to serve as his judicial law clerk in 2001 - 2002.

Described as a "giant" in Ontario's legal world, Justice Campbell passed away on April 17, 2007.  A few highlights from his long list of accomplishments include his articles with legendary Canadian criminal lawyer G. Arthur Martin and working as colleague and advisor to then Attorney General and later Chief Justice Roy McMurtry.   He was a well respected jurist, who was also a substantial public figure as the leader of important public inquiries into the investigation of serial killer Paul Bernardo, see here, and later into Toronto's SARS crisis, see here.



But my initial impression of the man was really built on a lot of small observations.

He was very unpretentious.  In one of our first meetings, he nonchalantly put his feet up on his desk.  That seemed casual enough for anyone, let alone a senior judge.  But it also revealed his penchant for wearing a pair of Greb Kodiaks, sometimes even while presiding!

His office was filled with curios and interesting artifacts.  In particular, I noticed his chamber at Toronto's historic Osgoode Hall was festooned with stuffed owls.  I remember saying to him once that it seemed very appropriate, since groups of both judges and owls were known as "Parliaments".  He laughed appreciatively at the time, though I'm sure in retrospect he was well aware of the comparison.



Another thing I noticed in his office was a large computer printed sign, that read: "Be wise. Be Fair. Be Brief."  When I asked, he told me that motto was not just for judges, but applied to all legal writing.  At one point he also said that of the trio of statements, many in law seemed prone to forget the third, which was amongst the most important. 

As his clerk, I soon discovered that part of my job was to accompany him to court to watch proceedings.  Later, we would return to his office to discuss the law and whatever litigation was unfolding.  He was as open and generous in helping me as anyone I ever have met in the law.  I quickly grasped that my articles with him were going to be an incredible learning experience.

Justice Campbell seemed to enjoy life, all the more so when he could share it with friends and have some fun.  Down to earth and often plain spoken, a conversation with him could quickly reveal the breadth of his knowledge, intelligence and his eccentric, even whimsical sense of humour. Former judicial colleague James Farley noted that Campbell  was "an amazing analyst, as witness his SARS Report and a lovable fun fellow...an incredible judge" and "a true and loyal friend".

Farley tells a story about how, for fun before eating meals together, Justice Campbell would sometimes "recite in Gregorian chant style a 30 second or so passage from the Rules of Civil Procedure (a page torn out of an obsolete copy )." Farley remembered that once a plumber, present in the house to make some repairs, witnessed the chant, took off his hat and bowed his head to show respect. 

When Farley and Campbell explained to the tradesman the ceremony was all in fun, "the fellow could not wait to tell his wife the story, but he wasn't certain that his wife would believe him. Easily fixed - Archie gave him the Rules page we had been reciting."

Campbell also loved literature and history.  His wide-range of friends included the CBCs Michael Enright who noted, in this 2007 Globe and Mail tribute, that Campbell often quoted poetry and classics.   A favourite, that I heard more than once during my time with him, were famous remarks from Marcus Aurelius, "in the vernacular", as he would qualify his inevitable quotations.  In my own experience Justice Campbell could recite these passages, from memory, without preparation.



Another of Campbell's favourite subjects was the American Civil War.  I remember once he stopped a meeting for 10 minutes to talk to a Commissionaire who came to the door of his office.  Apparently, it was the anniversary of Confederate general J.E.B. Stuart's cavalry ride completely around Union forces.  By way of explanation afterwards he told me the man was an American history buff.

It just so happened that, at the time, I was reading a classic volume on that conflict.  When I told him, and talked about some of the details of the battle, I could tell by his look that he was as impressed by that as anything I might have said about the law up to that point.   

The truth was that Campbell always seemed to make an effort to engage meaningfully with those around him.  Early on in our association, he took time to ask details about my experiences teaching literacy in Kingston Penitentiary, as an undergraduate Queen's student in the 1980s.  It never occurred to me to ask why he was interested.  Only later did I find out that he too had taught with the same literacy organization, Frontier College, in hydro and railway labour camps in the summers, up in northern Ontario.

And the interest Campbell showed in my background seemed part of a curiosity that he had about all kinds of people.  That Civil War buff that Campbell had stopped to talk to was no exception, and he had a distinct way of connecting with people.  When I would tell staff at the courthouse that I was articling for him, they had nothing but praise and genuine affection for the man.  He was "one of the good ones" they would say.

It's a challenge to capture the essence of any person in only a few words, let alone someone so accomplished.    He was my formal mentor for a year, but for years after continued to offer his advice and guidance, along with his good humour, whenever I needed it.  To this day, I value his collegiality, and he remains one of my professional role models.  The fact he passed away in 2007, at a relatively young age, was a tremendous loss.

It's also hard to know where to end with Archie Campbell.  However, one particular quote from Marcus Aurelius always makes me think of him - "waste no more time arguing about what a good man should be.  Be one."  Archie Campbell was a doer, who tried to be as good a lawyer, judge and man as anyone. 

To me he will always be "one of the good ones".







 

Wednesday, March 8, 2017

Connections Between Canada, Queen's and Its Law School in this Anniversary Year*

   Canada, Queen's University and its Faculty of Law are all celebrating special anniversaries this year.   But these things share more than just a common date.  All 3 are also connected in a synchronicity of people, time and place that links them in interesting ways on their 150th, 175th and 60th respective birthdays in 2017.   

     This year is the 150th anniversary of Canadian Confederation in 1867, the date on which four British North American colonies united to form a new country.  It's also the 175th anniversary of the opening of Queen's University, which, as described here, started classes back in 1842. 

     In that 1st year at Queen's, the initial undergraduate class consisted of 10 students, and offered only a limited subject matter. Some of those early students may have responded to advertisements from the school that looked like this:


     2017 also happens to mark the 60th Anniversary of the opening of Queen's University's law school back in 1957.  There is a great article from a few years ago detailing the history of the modern law school, from Mark Walters, available here, "Let Right be Done".   Professor Walters' article also takes time to describe the earlier attempts at establishing a law school at the University in Kingston.  These earlier efforts to found a program of legal education, starting in the 1860's, connect Confederation, and the earlier opening of the University, with the ongoing history of the law school.

     As Queen's opened its doors in 1842, down the street was a small law office presided over by a young lawyer, who would later go on to become Canada's 1st Prime Minister.  At the same time, that law office sheltered 2 even younger articling students, Alexander Campbell and Oliver Mowat, themselves both future 'Fathers of Confederation', see here and here.  

     When a few years later, Queen's University decided to expand its academic offerings by creating a law school, it was Alexander Campbell who became its 1st Law Dean.  Not to be outdone by his former student-at-law, it was John A. Macdonald who was awarded the 1st ever honourary doctorate in law by Queen's in 1863.  Mowat, the other articling student in that long ago Kingston law office, went on to become Macdonald's bitter political rival, whose subsequent constitutional legal battles with the 1st Prime Minister ended up setting the fault lines of the Canadian federal state for years afterward.

     The initial attempts to maintain a law school in Kingston in the 1800s did not succeed.  However, it was partly these historical connections that led the building housing the modern law school to be named after the 1st Prime Minister.  Sir John A. Macdonald Hall was opened by Prime Minister John Diefenbaker a few years after the Faculty of Law re-opened in 1957, see here.  It's in this way that Canada, Queen's University, and its law school, share a number of historical, political and legal connections, in addition to all celebrating important anniversaries in 2017.

* A substantially revised version of this blog was  published  May 9, 2017 in the Kingston Whig-Standard, and is available at the following online link: Important Joint Anniversaries

    

Saturday, February 18, 2017

Breaking the Presidential Records Act: History, Wrongdoing and Democracy

       President Trump's recent behaviour using modern social media and Twitter raises a distinct technological issue involving law and politics.  The deletion and editing of the @realDonaldTrump Twitter account poses questions about whether White House staff, and the President himself, are breaking the law, but also how this breach may be the leading edge of something more troubling.

     As a matter of historical significance, it seems a best practice that all records kept by and about American Presidents should be preserved.  However, the US has also created a statutory obligation, under the Presidential Records Act (1978) 44 USC Chap 22 (PRA), for the preservation of all Presidential and Vice-Presidential records. 

     The original intent behind the PRA was rooted less in the desire to preserve history and more in the fear that evidence of wrongdoing would be erased.  Legislation to protect records related to the President was initially passed  in 1974.  The statute on which the PRA was later based was first passed in the midst of fears about the destruction of records related to what became known as the 'Watergate' scandal. 'Watergate' directly implicated President Nixon in politically motivated criminal wrongdoing and ultimately led to his resignation.

     In the present day, it appears that President Trump may be in breach of these statutory obligations, to preserve Presidential records, when he deletes and edits his social media postings, as pointed out in this recent commentary, Tweet Typos and The Presidential Records Act.  Such records may be disposed of only after the President has sought the views of the National Archivist.  While there are several examples, most recently, President Trump posted a comment criticizing various media outlets.

     Here is President Trump's original tweet:



      The deleted tweet was replaced a few minutes later with a slightly different version of the same tweet, altered mainly by the addition of more media organizations, see here:


    Others have noted that it is likely not only the President, but also members of his staff, who are failing to abide by their legal obligations to preserve records, see comment here.  However, while some may be breaking this law, there is likely little that can be done.  In this respect, the PRA does not provide for any sanctions or penalty in the event of a breach.  At a minimum though, democratic officials in the USA should formally seek the views of the National Archivist as to whether the President and his staff are in compliance with the law.

   While the PRA preserves history, and protects against the destruction of evidence of wrongdoing, it also plays a larger role to maintain a common narrative about the historical record that is important to democratic values. Distorting history is a common enough phenomena in all cultures.*  Most troubling though are past examples where undemocratic regimes have often played fast and loose with the acknowledgement of events, see eg here.  Moreover, blatant disregard for facts and history were a key element in Orwell's cautionary tale, 1984, which warned about manipulation by an authoritarian state: "the past was erased, the erasure was forgotten, the lie became the truth".**

     In this context, the frequency and number of falsehoods being disseminated by the White House since the 2017 inauguration is astounding, see The complete list of all 80 false things Donald Trump has said in his first four weeks as President. Evidence that the President and his staff are now also ignoring their legal obligations under the PRA could challenge the historical record and has the potential to hide any evidence of further wrongdoing.  However, it may also forbode an even greater challenge to democratic traditions and freedoms, in which important public facts and events are replaced by fabrications for political purposes.

*  See eg, Margaret MacMillan, The Uses and Abuses of History (Toronto: Viking, 2008).
**George Orwell, Nineteen Eighty-Four (New York: Harcourt, Brace and Company, 1949) at 74 - 75.

      

        


Monday, January 30, 2017

Lawyers Acted as the 'Fifth Estate' Last Weekend

     As I wrote in my recent PHD, at their best lawyers act as the 'fifth estate' to represent people & help them to advance & defend their rights.1  Many lawyers played this role on front lines, in airports and courtrooms, across the US over the weekend, see The Lawyers Showed Up.   However, there were continued reports that at least some government officials refused to comply with court orders that limited President Trump's recent Executive Order, see here

     In a federal democracy, the judicial branch's authority is 'persuasive' in the sense that courts depend on the other branches of government to respect and ultimately to enforce their rulings.2  Where the executive and legislative branches do not respect rule of law, then the democratic function of the federal system is at risk. 

      Some have contemplated the chance that the political situation south of the border will end in calamity - impeachment, war or economic disaster, see here, but that American democracy and institutions will survive. More disconcerting though, now it seems some are openly & seriously considering the possibility that the failure to respect court rulings on the weekend was the first step in a challenge to democratic constitutionalism itself, see this widely shared comment on social media, Trial Balloon For a Coup.


     An independent Bar is vital to rule of law & democracy. Fact is, though they may be on the front lines today, legal challenges by lawyers alone may not be enough.  I still hope the most dire of the speculation about American politics is wrong or exaggerated.  But, like many, I will be watching events closely as they unfold in the coming days and weeks.

      On a less sombre note and more hopeful note, very proud of the role of the legal profession in this so far though. Never thought I would see large crowds chanting 'thank you lawyers!', see description in this article.  Whatever ends up happening in the USA, good to see thousands of American lawyers seeking to protect the legal rights of so many!

1.  In Canada, the idea of lawyers as a '5th estate' is from Peter Russell's work, The Judiciary in Canada (Toronto: McGraw-Hill Ryerson, 1987) at p 38.
2.  This legal understanding flows from the courts ruling in Marbury v Madison, see commentary and case, here.

Friday, January 13, 2017

A Few Pitfalls in Canadian Judicial Writing

1.  Introduction

     My last blog examined the application of lawyers' conflicts law in a 2016 Ontario family dispute and identified one troubling judicial writing technique.  I ended my look at the case by noting that the use of first names in judgment writing could be perceived to be overly familiar or patronizing, and is especially troubling when used selectively. This blog follows from that point and looks at 3 additional pitfalls in judgment writing, that I think should also be avoided. 

2.  Background

     Approaches to judicial writing have been the focus of some critical attention in Canada.  I think it's fair to say that all adjudicative officials have a difficult and challenging job to write clear, logical and legally reasonable judgments.  Many, if not most Canadian judges, are effective communicators and avoid things like legal jargon to write "lucid"  decisions, as discussed in this interesting January 12, 2017 article by Daniela Murynka in The Walrus.
 
     However, the recent criticisms of judicial writing styles suggest there is some room for improvement.  The use of humour or irreverence in judicial writing, for example, risks wrongly highlighting the cleverness or erudition of the judge, instead of focusing on the parties, victims and those directly and indirectly affected by decisions, a point made, inter alia, by Alice Woolley in her recent post discussing The Problem of Judicial Arrogance.

     Within the context of this broader discussion about effective judgments I think there are 3 additional approaches to judicial writing that may also be problematic, discussed below.

3.  "The Law Should Not Be a Mystery Novel"1

     Remember last year's high profile court decision involving Canadian Senator Mike Duffy?  For several hours last April, the judge sat in an Ottawa courtroom reading his judgment aloud.  All the while social media was abuzz with journalists and others attempting to divine the final outcome, based largely on the spoken introductory comments of the judge.  . 

     Some of the frustration in awaiting the outcome in this case would have been alleviated if the judge had stated simply the results of his analysis in his introduction.  In this respect, judges should avoid being cryptic - writing in a way to make the judgment like a mystery, leaving everyone guessing.  As an aspect of 'point first' writing, I think its important for judgments to be up front about the determinations that are being made, based on the analysis later in a decision. 

     This 'point first' approach is consistent with legal writing best practices, such as those described by Ontario Court of Appeal judge John Laskin in his well known article for advocates, Forget the Wind Up and Make the Pitch.  This kind of directness in writing is especially important for judges, whose decisions may have a profound impact on those before the court, many of whom would undoubtedly simply like their matter resolved efficiently and effectively. Moreover, in the modern media age, the 'reading' of court decisions, without releasing a text in advance, seems both archaic and unnecessary. 

4.  Personal Anecdotes Should be Used Sparingly, Maybe Not At All

     For various reasons, judges sometimes insert personal stories into judgments.   At their best, these anecdotes are an example of 'judicial notice' that may highlight some important points being made in decisions or possibly demonstrate the courts' connection to the 'real world'.2

     At their worst though, such personal anecdotes may not be especially helpful to resolve legal issues and may serve to further focus attention on the decision-maker, as opposed to those before the court.  To return to the example of the Duffy decision set out above, the Court (at para 4) relayed a story of a homeless person asking the judge about the decision, to highlight the widespread attention the proceedings had received and also to emphasize the importance of the presumption of innocence. 

     Taken at face value, the Duffy example seems like reasonable example of the appropriate use of a personal story to introduce legal analysis.  But was it really necessary?  In the nation's capital, involving a well known Senator, high political intrigue, and questions about the integrity of Canadian federal government of the day, very few would have questioned the prominence of the legal decision.  Moreover, I recollect at least one comment on social media at the time to the effect that, by relating this personal story, the judge appeared to be "enjoying" the spotlight of attention the case had received.

     I have little doubt that the judge, a widely respected senior jurist, see here, did not intend this impression. But such personal anecdotes risk being seen as having little to do with the primary role and function of the court to resolve disputes and could be regarded instead as self-serving.  When personal judicial anecdotes focus attention away from legal issues and onto the personal importance and experience of the adjudicative official, judges should consider not employing this technique to make their points.  Of course, the best way to avoid this risk entirely would be to not use personal anecdotes to buttress legal reasoning at all.

4.  Making Up Your Own Mind - The Most Powerful Conclusion

    Since I was a law student, I have continuously heard a seemingly simple assertion about legal writing.  That is: "just tell a story".  Given the centrality of narrative in law, this is, in some ways, good advice.4

     Usually people will say it is good advice in legal writing because narrative structure has a centuries long pedigree of capably communicating ideas, values, culture and helping people to visualize circumstances.  For judgment writing, such structure may be very persuasive in getting others to agree to the legitimacy of legal determinations.  There is an extended analysis possible here to test these propositions, that may have to wait for a future blog (at least 1!).3

      Suffice to say for now that I have come to question "the story" and its benefit to legal writing.  Briefly, narrative has certain general requirements - such as a hero, a villain - as well as certain structural features - such as a beginning and end, a crisis and a conflict.4  In this context, narrative models for judgment writing are not inherently 'neutral' and may unfairly tend to highlight certain things and diminish others for the sake of 'the story'.  In other cases, litigants may wish to resolve their disputes without the addition of such dramatic characterizations, which may also belie their own perception of what actually happened, and be far removed from the gritty specificity and mundanity of daily existence.5

     The use of "stories" in law can often be very effective.  But the most adept advocates also have a capacity to set out relevant facts and law in a way that compels a favourable judicial interpretation of their case.  From the facts and law simply presented, the decision-maker may come to their own conclusion.  Similarly, in conveying these conclusions in legal judgments, an effective approach is one that allow facts and law to speak for themselves, in a way that makes the ultimate determination inevitable (at least apparently).  In this case, judges should also try to remember that amongst the most powerful conclusions are those which people come to on their own.

    The 'story' in law still has its uses and benefits in legal writing.  No ordering of facts and law, even absent an explicit structure, is likely completely neutral.  In addition, even without obvious narrative, this form may exert a powerful influence on people's thinking, so it may be impossible to avoid 'stories' in judgment writing.  But I also think that we should be mindful of potential side-effects and risks of intentionally using narrative structure and techniques to persuade in law. 

5.     Conclusion

     This blog has looked at the pitfalls of writing legal judgments as a "mystery novel", of some risks in using personal anecdotes in decisions, as well as the possible unwanted side-effects of narrative structure in law.   Judgment writing is a substantial challenge, and something of a talent.  But it is also a skill, that like all skills can be improved by most adjudicative officials through practice, reflection and constructive feedback.  Hopefully most can avoid some of the pitfalls, set out above, as well as broader challenges, and continue to render good decisions in the best traditions of the bench.

 

1.   Here I am quoting the remembrance of a frequent admonition from my former 1L contracts instructor, Professor David Mullan.
2.  The doctrine of judicial notice has been the subject of some extensive and substantive controversy in the past in Canada, see eg the case of R v S (RD) [1997] 3 SCR 484.
3.   And a vast body of scholarship devoted to many aspects of the law and literature perspective, including the well known work by White, James B, The Legal Imagination Studies in the Nature of Legal Thought and Expression. (Boston, Little Brown: 1973).
4.  See eg, Peter Brooks, "Narrative in and of the Law", in A Companion to Narrative Theory 415 (James Phelan & Peter J. Rabinowitz eds, 2005).
5.  See eg Alan Dershowitz, "Life Is Not a Dramatic Narrative" in Peter Brooks,  Law’s Stories 14, 16, Peter Brooks & Paul Gewirtz eds ,(Yale UP: 1998).

Friday, November 25, 2016

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.