Category: Publications

A Charter Right to Advise – Even Without a License?

Noel Semple

Slaw.ca Access to Justice Column, February 2 2023

Found online at: https://www.slaw.ca/2023/02/02/a-charter-right-to-advise-even-without-a-license/

A new American case, Upsolve v. James, suggests that freedom of expression might protect the right of non-lawyers to offer legal advice.

In both Canada and the USA, lawyers have a near-monopoly on legal advice. If anyone tells someone else how the law would apply to their circumstances, the first person is probably deemed to be “practicing law.” That is something that only lawyers are allowed to do.

Continue reading “A Charter Right to Advise – Even Without a License?” →

On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario

Noel Semple

Slaw.ca Legal Ethics Column, August 11, 2022

Found online at: https://www.slaw.ca/2022/08/11/on-a-slow-train-to-nowhere-paralegal-family-law-practice-in-ontario/

Every year, tens of thousands of Ontarians go through divorce or separation. Should these people have access to family law services provided by non-lawyers? What if these service-providers were paralegals trained in family law, insured, and regulated by the Law Society of Ontario?

Continue reading “On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario” →

Online and In-Person Hearings: The Best of Both Worlds

Noel Semple

Slaw.ca Civil Procedure Column, June 9, 2022

Found online at: https://www.slaw.ca/2022/06/09/online-and-in-person-hearings-the-best-of-both-worlds/

For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.

Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario states that “going digital has been a failure” and calls for a return to in-person hearings. The online vs in-person controversy is also litigated on a case-by-case basis. For many civil trials, in the absence of party consent an expensive procedural motion may be necessary to resolve the question of online vs. in-person.

Continue reading “Online and In-Person Hearings: The Best of Both Worlds” →

Welfare-Consequentialism: A Vaccine for Populism?

Noel Semple

The Political Quarterly, July 2020

            Live press conferences about the coronavirus pandemic have proved remarkably popular in many countries.  To fans of these spectacles, two character types have become familiar.  First, there is the populist leader, personified by Donald Trump, Jair Bolsonaro, and Victor Orban among others. Their performances have hit many of the same notes that they did before the pandemic: denunciations of elites and foreigners, interspersed with tributes to common people and their common sense remedies. However a second type of character is equally prominent on pandemic press conference stages: the public health expert, replete with academic credentials, speaking the language of evidence-based policy.

Continue reading “Welfare-Consequentialism: A Vaccine for Populism?” →

Review of Matthew D. Adler’s “Measuring Social Welfare: An Introduction.” New York, NY: Oxford University Press, 2019, 337 pp.

Noel Semple

Erasmus Journal for Philosophy and Economics, Vol. 13, No. 1. (Spring 2020) https://ejpe.org/journal/article/view/442

My review of a terrific new book, offering a way to make public policy decisions objectively and ethically.  The book is here.

Review:

Continue reading “Review of Matthew D. Adler’s “Measuring Social Welfare: An Introduction.” New York, NY: Oxford University Press, 2019, 337 pp.” →

Good Enough for Government Work? Life-Evaluation and Public Policy

Noel Semple

The Journal of Happiness Studies, 2019, Volume 21, 30 pgs.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.

However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.

Full text:  https://ssrn.com/abstract=3397151

The British Invasion: Legal Services Regulation Edition

Noel Semple

Slaw.ca Legal Ethics Column, April 10, 2020.

Found online at: http://www.slaw.ca/2020/04/10/the-british-invasion-legal-services-regulation-edition/

Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.

While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access to justice, without any apparent diminution in quality or ethics. Continue reading “The British Invasion: Legal Services Regulation Edition” →

Harassment in the Legal Profession: A Few Bad Apples?

Noel Semple

Slaw.ca Legal Ethics Column, February 24, 2020.

Found online at: http://www.slaw.ca/2020/02/24/harassment-in-the-legal-profession-a-few-bad-apples/

Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.

“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often based on prohibited grounds of discrimination such as gender, race, or disability. Harassment is distinct from assault (which requires touching), but in many cases the harassing course of conduct includes assault.

Once you start paying attention, evidence of harassment in law firms is not hard to find. Every month, approximately 15 complaints are made to the Law Society of Ontario’s Discrimination and Harassment Counsel (DHC) , regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints. Racial harassment is also commonly recorded in this data. In a recent Globe & Mail article, Jocelyn Downie and Elaine Craig remind readers that Gerald Regan, a famous lawyer and former Premier of Nova Scotia, has been accused of sexual harassment and assault by more than 35 women. His success seems to suggest that this conduct is still taken lightly in many quarters. Continue reading “Harassment in the Legal Profession: A Few Bad Apples?” →

Dispatches From the Front Lines of Canadian Legal Ethics

Noel Semple

Slaw.ca Legal Ethics Column, December 16, 2019.

Found online at: http://www.slaw.ca/2019/12/16/dispatches-from-the-front-lines-of-canadian-legal-ethics/

On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date. Continue reading “Dispatches From the Front Lines of Canadian Legal Ethics” →

Get It in Writing: Legal Fees, Retainer Contracts and Newell v. Sax

Noel Semple

Slaw.ca Legal Ethics Column, October 3, 2019.

Found online at: http://www.slaw.ca/2019/10/03/get-it-in-writing-legal-fees-retainer-contracts-and-newell-v-sax/

Should a lawyer decide how much his client should pay him, and then write himself a cheque for that amount, without the client’s agreement? Is a discretionary judicial decision about the value of a legal service an adequate substitute for an agreement between lawyer and client? In Newell v. Sax, the Ontario Court of Appeal effectively answered “yes” to both of these questions. In my view, arbitrary fees invented by lawyers, or judges, are a grave and unnecessary threat to legal ethics. The law should insist on upfront disclosure and clear contractual agreements about legal fees, absent very exceptional circumstances. Continue reading “Get It in Writing: Legal Fees, Retainer Contracts and Newell v. Sax” →

The Absent Ethics of Legal Fees : Putting Profit-Seeking in Its Place

Noel Semple

Slaw.ca Legal Ethics Column, August 14, 2019.

Found online at: http://www.slaw.ca/2019/08/14/the-absent-ethics-of-legal-fees-putting-profit-seeking-in-its-place/

A lawyer should be a loyal ally for a person with a legal need. This loyalty is at the core of our profession’s value proposition to society. Thus, legal ethics strives to guarantee devoted service to clients. Conflict of interest rules prohibit all situations creating “substantial risk” that the lawyer’s loyalty to a client “would be materially and adversely affected by the lawyer’s own interest.” Lawyers, as fiduciaries, must be “concerned solely for the beneficiary [client]’s interests, never the fiduciary [lawyer]’s own.”

There is, however, a glaring exception to the duty of selfless loyalty to clients. Lawyers are allowed to pursue their own pecuniary interests in collecting fees, at the expense of the clients who pay them. When a lawyer acts to obtain fees from a client, (s)he is clearly not acting as a fiduciary who puts the beneficiary’s interest first.

Everyone deserves to be paid for their work, and without the profit motive very few legal services would be made available to anyone. However, legal ethics must reconcile lawyers’ self-interested pursuit of fees with the general prohibition of conflicts of interest, and with the generally fiduciary nature of the lawyer-client relationship. Continue reading “The Absent Ethics of Legal Fees : Putting Profit-Seeking in Its Place” →

Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion

Noel Semple

Slaw.ca Legal Ethics Column, June 6, 2019.

Found online at: http://www.slaw.ca/2019/06/06/tort-litigation-and-greenhouse-gas-emissions-changing-the-climate-of-opinion/

Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the federal carbon pricing backstop will be derailed on constitutional grounds. Continue reading “Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion” →