Category: Other Publications

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” →

A Tale of Two Attorneys-General: Jody Wilson-Raybould and Caroline Mulroney

Noel Semple

Slaw.ca Legal Ethics Column, April 10, 2019.

Found online at: http://www.slaw.ca/2019/04/10/a-tale-of-two-attorneys-general-jody-wilson-raybould-and-caroline-mulroney/

Twice in the last six months, Canadian Attorneys-General have been encouraged to resist the first ministers of their respective governments. Today, federal AG Jody Wilson-Raybould is widely commended for resisting repeated requests from the PM’s office to change tack on the prosecution of SNC-Lavalin (See Patricia Hughes’ comprehensive Slaw post on the affair).

In September of 2018, Ontario AG Caroline Mulroney was called upon to vote against, or resign from, Premier Doug Ford’s government after Ford proposed to invoke section 33 of the Charter. The Superior Court of Justice had found Ford’s plan to reduce the size of Toronto City Council to violate freedom of expression, and Ford announced that he would use the “notwithstanding clause,” if necessary, to override this decision. (The SCJ ruling was quickly overturned on appeal, making section 33 unnecessary).

What do these two cases have in common, and what sets them apart? Continue reading “A Tale of Two Attorneys-General: Jody Wilson-Raybould and Caroline Mulroney” →

Collegial Reputation and Peer Rankings: An Invisible Hand?

Noel Semple

Slaw.ca Legal Ethics Column, January 31, 2019.

Found online at: http://www.slaw.ca/2019/01/31/collegial-reputation-and-peer-rankings-an-invisible-hand/

Suppose you have practiced law for many years in the same community. You are shown a list of other lawyers who do the same sort of work as you, in the same area. You probably have an opinion about most of the names on the list. Favourable or unfavourable impressions will have accumulated from your interactions with them on files, your observations of their work, and other colleagues’ comments to you about them.

Of course, they also have opinions about you. Your collegial reputation is the sum of the opinions about you held by others in your community of practice.

Collegial reputations are not necessarily fair or well- deserved. They may reflect prejudice or irrelevant factors, rather than the real qualities of someone’s work. Nevertheless, within professions like law, colleagues are relatively well placed to evaluate the many aspects of value that are invisible to clients. Continue reading “Collegial Reputation and Peer Rankings: An Invisible Hand?” →