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Canadian Legal Ethics: Ready for the Twenty-First Century at Last

Published online by Cambridge University Press:  06 March 2019

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This article analyzes the transformation in the scholarship of legal ethics that has occurred in Canada over the last decade, and maps out an agenda for future research. The author attributes the recent growth of Canadian legal ethics as an academic discipline to a number of interacting factors: a response to external pressures, initiatives within the legal profession, changes in Canadian legal education, and the emergence of a new cadre of legal ethics scholars. This article chronicles the public history of legal ethics in Canada over the last decade and analyzes the first and second wave of scholarship in the area. It integrates these developments within broader changes in legal education that set the stage for the continued expansion of Canadian legal ethics in the twenty-first century.

Type
Section 4: ‘Learning to Think and Act Like a Lawyer’ The Challenge of Professionalism in the Profession: Legal Ethics
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 See Dodek, Adam M., “‘Canadian Legal Ethics': A Subject in Search of Scholarship” (2000) 50 U.T.L.J. 115 [Dodek, “A Subject in Search of Scholarship”].Google Scholar

3 See Hutchinson, Allan C., Legal Ethics and Professional Responsibility (Toronto: Irwin Law, 1999). The book is now in its second edition. See Allan C. Hutchinson, Legal Ethics and Professional Responsibility, 2d ed. (Toronto: Irwin Law, 2006). Unless otherwise noted, all references are to Hutchinson's second edition [Hutchinson, Legal Ethics].Google Scholar

4 Orkin, Mark M., Legal Ethics: A Study of Professional Conduct (Toronto: Cartright & Sons, 1957) [Orkin, Legal Ethics].Google Scholar

5 MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility and Discipline, 4th ed. (Toronto: Carswell, 2006), originally published in 1993. Two years before my 2000 article, Dodek, “A Subject in Search of Scholarship,” supra note 1, Harry Arthurs described the lack of Canadian scholarship in even starker terms. See H.W. Arthurs, “Why Canadian Law Schools Do Not Teach Legal Ethics” in Kim Economides, ed., Ethical Challenges to Legal Education & Conduct (Oxford: Hart Publishing, 1998) 105 at 109 (noting the “almost total absence of a body of domestic scholarly literature on the subject”).Google Scholar

6 Canadian Bar Association, Canons of Legal Ethics (Ottawa: Canadian Bar Association, 1920) available in W. Wesley Pue, “Becoming ‘Ethical': Lawyers’ Professional Ethics in Early Twentieth Century Canada” (1991) 20 Man L.J. 227 at 234–37 [Pue, “Becoming ‘Ethical'”].Google Scholar

7 See e.g. Pue, “Becoming ‘Ethical,'” ibid. Google Scholar

8 Hutchinson, , Legal Ethics, supra note 3 at 5–6.Google Scholar

9 On corresponding crises in the Canadian legal profession see generally ibid. at 2–5.Google Scholar

10 I leave aside the whole question of the gendered and racial conception of legal ethics and professionalism, itself a very fertile field of ethical inquiry. See e.g. Constance Backhouse, “Gender and Race in the Construction of ‘Legal Professionalism': Historical Perspectives” (Paper Presented at the First Colloquium on the Legal Profession, Faculty of Law, University of Western Ontario, London, Ontario, 20 October 2003), online: Law Society of Upper Canada (LSUC) <http://www.lsuc.on.ca/media/constance_backhouse_gender_and_race.pdf> [Backhouse, “Gender and Race in the Construction of ‘Legal Professionalism'”].+[Backhouse,+“Gender+and+Race+in+the+Construction+of+‘Legal+Professionalism'”].>Google Scholar

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15 An excellent statement of the possible scope of inquiry for legal ethics is found on the homepage of the British journal Legal Ethics: Google Scholar

The journal is intended to provide an intellectual meeting ground for academic lawyers, practitioners and policy-makers to debate developments shaping the ethics of law and its practice at the micro and macro levels. Its focus is broad enough to encompass empirical research on the ethics and conduct of the legal professions and judiciary, studies of legal ethics education and moral development, ethics development in contemporary professional practice, the ethical responsibilities of law schools, professional bodies and government, and the jurisprudential or wider philosophical reflections on law as an ethical system and on the moral obligations of individual lawyers.

Legal Ethics, online: http://www.hartjournals.co.uk/le/.

16 In 2006, the Government of Ontario enacted legislation to regulate paralegals under the LSUC's oversight. See Bill 14, Access to Justice Act, 2nd sess., 38th Leg., Ontario, 2006 (assented to 19 October 2006), S.O., 2006, c. 21, Sch. B; Ministry of the Attorney General, Ontario, News Release/Comuniqué “New Era Begins with Pathbreaking Paralegal Regulation” (17 November 2006), online: Ministry of Attorney General <http://www.attorneygeneral.jus.gov.on.ca/english/news/2006/20061117-paraleg-EN.pdf>; and Law Society of Upper Canada, “Paralegal Regulation,” online: <http://www.lsuc.on.ca/paralegals>. In more narrow terms, Justice Major defined the ethical standard that the legal profession must adhere to as “not only concerned with the immediate and narrow relationship between the lawyer and the client, but with the wide issue of the place of a profession in society and its corresponding obligation to that society as a whole.” Justice J.C. Major, “Lawyers’ Obligation to Provide Legal Services” (Address to the National Conference on the Legal Profession and Professional Ethics, 9 June 1994), (1995) 33 Alta. L. Rev. 719 at 719.;+and+Law+Society+of+Upper+Canada,+“Paralegal+Regulation,”+online:+.+In+more+narrow+terms,+Justice+Major+defined+the+ethical+standard+that+the+legal+profession+must+adhere+to+as+“not+only+concerned+with+the+immediate+and+narrow+relationship+between+the+lawyer+and+the+client,+but+with+the+wide+issue+of+the+place+of+a+profession+in+society+and+its+corresponding+obligation+to+that+society+as+a+whole.”+Justice+J.C.+Major,+“Lawyers’+Obligation+to+Provide+Legal+Services”+(Address+to+the+National+Conference+on+the+Legal+Profession+and+Professional+Ethics,+9+June+1994),+(1995)+33+Alta.+L.+Rev.+719+at+719.>Google Scholar

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19 Woolley, Alice, “Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer” (1996) 9 Can. J.L. & Jur. 61.Google Scholar

20 Hutchinson, , Legal Ethics, supra note 3 at 5–6.Google Scholar

21 R. v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. Sup. Ct. J.) (acquitting Murray of charges of attempting to obstruct evidence by retaining physical evidence of a crime for seventeen months after his client Paul Bernardo had instructed him on how to locate videotapes which showed Bernardo committing crimes; Murray was acquitted on grounds that he lacked the mens rea to commit the crime).Google Scholar

22 For a critical reaction to the LSUC's decision to drop its disciplinary investigation against Murray, see “The Law Society failed the public,” Editorial, The Globe and Mail (2 December 2000) F6. For the Law Society's reaction see Robert P. Armstrong & Gavin MacKenzie, Letter to the Editor, “Law Society did not fail” The Globe and Mail (13 December 2000) A14. See also Kirk Makin, “A clean escape from the house of Bernardo” The Globe and Mail (30 November 2000) A1. After the acquittal of Ken Murray and the decision not to pursue disciplinary sanctions against him, the LSUC struck a special committee to propose a professional conduct rule for lawyers’ duties respecting physical evidence of a crime. The Committee submitted a report to Convocation on 21 March 2002 with a proposed rule. See Special Committee on Lawyers’ Duties with Respect to Property Relevant to a Crime or Offence, Report to Convocation (21 March 2002), online: <http://www.lsuc.on.ca/news/pdf/convmay02_propertyrelecrime.pdf>. Convocation sought a legal opinion on the proposed rule. See “Law Society to obtain legal opinion on proposed conduct for lawyers” Canada Newswire (23 May 2002). The LSUC decided not to pursue the matter further, and as of December 2007, the Rules of Professional Conduct have not been amended to address this issue. Similarly, in its 2006 revision of its Code of Professional Conduct, the CBA did not address this issue. For a detailed analysis of the problem of the lawyer's duties respecting physical evidence of a crime, see Michel Proulx & David Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at 481–530; Austin M. Cooper, “The Ken Murray Case: Defence Counsel's Dilemma” (2003) 47 Crim. L.Q. 141; and Kent Roach, “Smoking Guns: Beyond the Murray Case,” Editorial Comment (2000) 43 Crim. L.Q. 409. For an example of a jurisdiction that does specifically address the lawyer's duty respecting physical evidence of a crime, see Alberta, Law Society of Alberta: Code of Professional Conduct, c. 10, r. 20, online: http://www.lawsocietyalberta.com/files/Code.pdf..+Convocation+sought+a+legal+opinion+on+the+proposed+rule.+See+“Law+Society+to+obtain+legal+opinion+on+proposed+conduct+for+lawyers”+Canada+Newswire+(23+May+2002).+The+LSUC+decided+not+to+pursue+the+matter+further,+and+as+of+December+2007,+the+Rules+of+Professional+Conduct+have+not+been+amended+to+address+this+issue.+Similarly,+in+its+2006+revision+of+its+Code+of+Professional+Conduct,+the+CBA+did+not+address+this+issue.+For+a+detailed+analysis+of+the+problem+of+the+lawyer's+duties+respecting+physical+evidence+of+a+crime,+see+Michel+Proulx+&+David+Layton,+Ethics+and+Canadian+Criminal+Law+(Toronto:+Irwin+Law,+2001)+at+481–530;+Austin+M.+Cooper,+“The+Ken+Murray+Case:+Defence+Counsel's+Dilemma”+(2003)+47+Crim.+L.Q.+141;+and+Kent+Roach,+“Smoking+Guns:+Beyond+the+Murray+Case,”+Editorial+Comment+(2000)+43+Crim.+L.Q.+409.+For+an+example+of+a+jurisdiction+that+does+specifically+address+the+lawyer's+duty+respecting+physical+evidence+of+a+crime,+see+Alberta,+Law+Society+of+Alberta:+Code+of+Professional+Conduct,+c.+10,+r.+20,+online:+http://www.lawsocietyalberta.com/files/Code.pdf.>Google Scholar

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26 See Tyler, Tracey, “Law society urged to ‘clear the air'; Cheating probe held in near secret; Elected governors want information” Toronto Star (17 July 2004) A4; Tracey Tyler, “Veil of secrecy called unacceptable; Bencher calls for Law Society head to resign; Controversy over handling of cheating probe” Toronto Star (4 August 2004) A4.Google Scholar

27 See Law Society of British Columbia, News Release, “Law Society of B.C. President resigns” (10 October 2003), online: <http://www.lawsociety.bc.ca/media/news/03-10-10_Berge.html>; “Lawyer who drank, drove suspended from practice” The Globe and Mail (22 December 2005) S3; and Re Howard Raymond Berge, Q.C. 2007 LSBC 07, online: <http://alt.lawsociety.bc.ca/hearing_decisions/viewreport.cfm?hearing_id=235&h=+berge&h>.;+“Lawyer+who+drank,+drove+suspended+from+practice”+The+Globe+and+Mail+(22+December+2005)+S3;+and+Re+Howard+Raymond+Berge,+Q.C.+2007+LSBC+07,+online:+.>Google Scholar

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30 See R. v. Felderhof, [2002] C.C.S. No. 21535 (Sup. Ct. J.), aff'd (2003), 68 O.R. (3d) 481 (C.A.); Marchand v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.).Google Scholar

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35 See CBA Guidelines, Acting for Survivors of Aboriginal Residential Schools; Yukon Guidelines, “Acting for Survivors of Aboriginal Residential Schools”; and LSUC Guidelines, “Acting in Cases involving Aboriginal Residential School Abuse,” supra note 18.Google Scholar

36 MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.Google Scholar

37 R. v. Neil, [2002] 2 S.C.R. 177.Google Scholar

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39 The sections on conflicts of interest are by far the longest of any subject in the codes of conduct. See e.g. CBA, Code of Professional Conduct, supra note 12, c. V (Impartiality and Conflict of Interest Between Clients) (20 pages). The second longest chapter is c. IX (The Lawyer as Advocate), which runs 14 pages. See also Law Society of Upper Canada, Rules of Professional Conduct, rr. 2.04 (Avoidance of Conflicts of Interest) and 2.05 (Conflicts from Transfer Between Law Firms) (17 pages) [LSUC Rules]; Law Society of British Columbia, Professional Conduct Handbook, c. 6 (Conflicts of Interest Between Clients); and Nova Scotia Barristers’ Society, Legal Ethics Handbook, c. 6 (Impartiality and Conflict of Interest Between Clients) and c. 6A (Conflicts Arising out of Transfer Between Law Firms). In March 2007, the CBA established a Task Force on Conflicts of Interest with a mandate (1) to propose practical guidelines for the profession (a) in applying the duty of loyalty, and (b) in implementing appropriate modifications or waivers of the duty; (2) to consider the appropriate scope and content of client engagement letters; and (3) to propose practical guidelines for the profession in the application of the duty of confidentiality, particularly in the areas of deemed knowledge and relevance of information. In October 2007, the CBA Task Force issued a Background Paper entitled Developing an Effective and Practical Conflicts of Interest Regime and also released a Consultation Paper, seeking feedback by the end of November 2007. The Task Force will then make recommendations to the CBA. See generally Canadian Bar Association Task Force on Conflicts of Interest, online: <http://www.cba.org/CBA/groups/conflicts/>..>Google Scholar

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41 See Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372.Google Scholar

42 See Wilder v. Ontario Securities Commission (2001), 53 O.R. (3d) 519 (C.A.).Google Scholar

43 See Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562.Google Scholar

44 See Finney v. Barreau du Quebec, [2004] 2 S.C.R. 17. Philip Slayton writes about this case in Slayton, Lawyers Gone Bad, supra note 33 at 208–18. I was a member of Finney's legal team until the fall of 2003 when I joined the staff of Ontario's former Attorney General, the Hon. Michael Bryant.Google Scholar

45 See Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 [Ryan]. I was co-counsel with Gavin MacKenzie for the intervenor Federation of Law Societies in this case.Google Scholar

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47 See R. v. McClure, [2001] 1 S.C.R. 445; R. v. Brown, [2002] 2 S.C.R. 185; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209; Maranda v. Richer, [2003] 3 S.C.R. 193; Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; and Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189. See also Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456 (on the related concept of professional secrecy under Quebec civil law). In one case, an issue relating to the privilege existed in the lower courts but the litigant no longer relied upon it by the time the case reached the Supreme Court. See London (City) v. RSJ Holdings, [2007] 2 S.C.R. 588.Google Scholar

48 See Jamal, Mahmud & Morgan, Brian, “The Constitutionalization of Solicitor-Client Privilege” (2003) 20 Sup. Ct. L. Rev. (2d) 213.Google Scholar

49 See Law Society of British Columbia v. Canada (Attorney General) (2001), 207 D.L.R. (4th) 705, aff'd [2002] 207 D.L.R. (4th) 736 (C.A.), leave to appeal granted 25 April 2002 and notice of discontinuance of appeal filed 25 May 2002, [2002] S.C.C.A. No. 52 (QL); Federation of Law Societies of Canada v. Canada (Attorney General), [2001] A.J. No. 1697 (QL) (Q.B.); Federation of Law Societies of Canada v. Canada (Attorney General (2002), 203 N.S.R. (2d) 53; Federation of Law Societies of Canada v. Canada (Attorney General) (2002), 57 O.R. (3d) 383 (Sup. Ct. J.); and Federation of Law Societies of Canada v. Canada (Attorney General) (2002), 218 Sask. R. 193. The Federation of Law Societies launched an assault on the federal government's money laundering reporting requirements. After several court decisions in the Federation's favour, the federal government settled these actions with the Federation. See Kirk Makin, “Ottawa gives up forcing lawyers to tell on clients” The Globe and Mail (25 March 2003) A13. In 2006, the government passed Bill C-25, which exempts lawyers from the reporting requirements of this regime, but would require lawyers to record all transactions of $3,000 or more. The battle continues: see “Lawyers back on the hook in revised money laundering act” Law Times (16 July 2007), online: <http://www.lawtimesnews.com/index.php?option=com_content&task=view&id=2503>..>Google Scholar

50 See Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249.Google Scholar

51 See Re Therrien, [2001] 2 S.C.R. 3.Google Scholar

52 See Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 [Wewaykum (2003)]. See also Adam M. Dodek, “Constitutional Legitimacy and Responsibility: Confronting Allegations of Bias After Wewaykum Indian Band v. Canada” (2004) 25 Sup. Ct. L. Rev. (2d) 165 [Dodek, “Constitutional Legitimacy”].Google Scholar

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54 See Guimont c. Bertrand, 2005 CanLII 57406 (QC C.D.B.Q.).Google Scholar

55 See British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38.Google Scholar

56 See British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873.Google Scholar

57 See Kerr v. Danier Leather Inc., [2007] 286 D.L.R. (4th) 601; Jacquie McNish, “Plaintiff to foot bill as Danier wins” The Globe and Mail (13 October 2007) B7.Google Scholar

58 See e.g. The Right Honourable Beverley McLachlin, P.C., “The Challenges We Face” (Remarks presented at the Empire Club of Canada, 8 March 2007), online: <http://www.scc-csc.gc.ca/AboutCourt/judges/speeches/Challenges_e.asp>..>Google Scholar

59 In Ontario, the Toronto Star began a series on access to justice in March 2007 with the attention-grabbing headline, “A 3-day trial likely to cost you $60,000.” See Tracey Tyler, “A 3-day trial likely to cost you $60,000; But that won't cover an expert witness, or opponent's legal costs if you lose” Toronto Star (3 March 2007) A25 [Tyler, “A 3-day trial likely to cost you $60,000”]. For other articles in this series see Tracey Tyler, “The dark side of justice” Toronto Star (3 March 2007) A1; Tracey Tyler, “Legal aid rules shut out thousands; Many earning under $16,000 face uphill battle trying to represent themselves in complex cases” Toronto Star (3 March 2007) A24; Tracey Tyler, “Ever-expanding trials; not our fault Defence lawyers” Toronto Star (5 March 2007) A8; Tracey Tyler, “A ‘ruinous’ system for losers; Canadian courts that award financially punitive lawyers’ costs create a ‘huge barrier’ to legal access, say judges and lawyers” Toronto Star (30 March 2007) A3; and Tracey Tyler, “Small claims hit the big time” Toronto Star (28 July 2007) ID1. See also John Intini, “No Justice for the Middle Class” Maclean's 120:35/36 (10 September 2007) 68; Canadian Judicial Council, “Access to Justice: Meeting the Challenge (2006-2007 Annual Report)” (Ottawa: Canadian Judicial Council, 2007).Google Scholar

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61 See Law Society of Upper Canada, “Law Society of Upper Canada Announcement” (23 January 2006), online: <http://www.lsuc.on.ca/media/jan2306hunter.pdf>. Hunter had tendered his resignation in December 2005 but Convocation chose to treat it as a request for a leave of absence, and bencher Clayton Ruby became Interim Treasurer until Gavin MacKenzie was elected in a special election. The election was held in February 2006 after Hunter permanently resigned. See Law Society of Upper Canada, “Law Society of Upper Canada Announcement” (7 December 2005), online: <http://www.lsuc.on.ca/latest-news/b/archives/index.cfm?c=1029&i=8432>; Law Society of Upper Canada, “Law Society of Upper Canada Announcement” (9 December 2005), online: <http://www.lsuc.on.ca/latest-news/b/archives/index.cfm?c=1029&i=8450>; Tracey Tyler, “Clayton Ruby to lead law society; Treasurer resigned for ‘family reasons'; Ruby automatically moves to top post” Toronto Star (8 December 2005) B.04; and Law Society of Upper Canada, “Gavin MacKenzie elected Treasurer of the Law Society of Upper Canada” (23 February 2006), online: <http://www.lsuc.on.ca/media/feb2306_new_treasurer.pdf>. On the Law Society's discipline of Mr. Hunter see supra note 29..+Hunter+had+tendered+his+resignation+in+December+2005+but+Convocation+chose+to+treat+it+as+a+request+for+a+leave+of+absence,+and+bencher+Clayton+Ruby+became+Interim+Treasurer+until+Gavin+MacKenzie+was+elected+in+a+special+election.+The+election+was+held+in+February+2006+after+Hunter+permanently+resigned.+See+Law+Society+of+Upper+Canada,+“Law+Society+of+Upper+Canada+Announcement”+(7+December+2005),+online:+;+Law+Society+of+Upper+Canada,+“Law+Society+of+Upper+Canada+Announcement”+(9+December+2005),+online:+;+Tracey+Tyler,+“Clayton+Ruby+to+lead+law+society;+Treasurer+resigned+for+‘family+reasons';+Ruby+automatically+moves+to+top+post”+Toronto+Star+(8+December+2005)+B.04;+and+Law+Society+of+Upper+Canada,+“Gavin+MacKenzie+elected+Treasurer+of+the+Law+Society+of+Upper+Canada”+(23+February+2006),+online:+.+On+the+Law+Society's+discipline+of+Mr.+Hunter+see+supra+note+29.>Google Scholar

62 R. v. Shoniker, [2006] O.J. No. 5368 (Sup. Ct. J.) (QL); Brieger, Peter, “Cash sting lawyer: ‘I'm guilty'” National Post (19 August 2006) A12, online: <http://www.nationalpost.com/news/toronto/story.html?id=50d2db24-cdbb-4739-b1fa-a32a7c24c84e>. Of Shoniker, Canadian Lawyer said: “At the pinnacle of his career, [he] met the Pope and could count generals, police chiefs, judges, and politicians among his coterie of friends and acquaintances. At his nadir, he was a shattered man sitting in a Toronto courtroom. …” See Bruce Livesey, “Fall from grace: The Rise and Fall of Peter Shoniker” Canadian Lawyer (September 2007) 34..+Of+Shoniker,+Canadian+Lawyer+said:+“At+the+pinnacle+of+his+career,+[he]+met+the+Pope+and+could+count+generals,+police+chiefs,+judges,+and+politicians+among+his+coterie+of+friends+and+acquaintances.+At+his+nadir,+he+was+a+shattered+man+sitting+in+a+Toronto+courtroom.+…”+See+Bruce+Livesey,+“Fall+from+grace:+The+Rise+and+Fall+of+Peter+Shoniker”+Canadian+Lawyer+(September+2007)+34.>Google Scholar

63 See McNish, Jacquie & Waldie, Paul, “Advisers won't look ‘this jury in the eye'” The Globe and Mail (22 March 2007) A1; Paul Waldie, “Focus turns to former Hollinger lawyers” The Globe and Mail (9 April 2007) A11; Paul Waldie, “Lawyer in CanWest deal comes under the gun” The Globe and Mail (12 April 2007) A2; Margaret Wente, “The brilliant career of Mr. Sukonick” The Globe and Mail (12 April 2007) A17; Rick Westhead, “Defence spotlights lawyer's message” Toronto Star (13 April 2007) A12; Paul Waldie, “Non-compete payments increased before CanWest deal, lawyer testifies” The Globe and Mail (13 April 2007) A14; Rick Westhead, “Black saga hasn't hurt law firm; Torys LLP lawyer suffers verbal mauling but, observers say, prestige is still intact” Toronto Star (14 April 2007) A10; Paul Waldie, “Lawyer ‘shocked’ by Torys’ take on his advice” The Globe and Mail (17 April 2007) A18; Paul Waldie, “Former Torys’ lawyer squirms over questions about her income” The Globe and Mail (20 April 2007) A2; Paul Waldie, “Key witness lied, lawyer says” The Globe and Mail (22 June 2007) A14; and Jacquie McNish, “Penalties for referees who didn't blow the whistle” The Globe and Mail (14 July 2007) A8.Google Scholar

64 Maclean's 120:30 (6 August 2007) cover.Google Scholar

65 Slayton, Philip, Lawyers Gone Bad, supra note 33.Google Scholar

66 See Letters to the Editor, Maclean's 120:31/32 (13 August 2007) 4–6 (including letters from CBA President J. Parker MacCarthy, numerous lawyers, and members of the public); and the magazine's unusually long defence of the article in its column “From the Editors”: “Not just a lone voice in the wilderness,” Editorial, Maclean's 120:31/32 (13 August 2007) 2. See also Law Society of Upper Canada, News Release, “Maclean's article a disservice to Canadians” (30 July 2007), online: <http://www.lsuc.on.ca/media/jul3007_macleans_article.pdf>; Michael Milani, “Who lawyers the lawyers? We do, and it works” The Globe and Mail (9 August 2007) A17; Natalie Fraser, “Lawyers get mad about Lawyers Gone Bad” The Lawyers Weekly (10 August 2007) 1. For an excellent perspective see Alan Young, “We're Not Rats… But Snooty Lawyers are bullying their way out of favour” NOW Magazine (6 September 2007), online: http://www.nowtoronto.com/issues/2007-09-06/news_story6_p.html/.;+Michael+Milani,+“Who+lawyers+the+lawyers?+We+do,+and+it+works”+The+Globe+and+Mail+(9+August+2007)+A17;+Natalie+Fraser,+“Lawyers+get+mad+about+Lawyers+Gone+Bad”+The+Lawyers+Weekly+(10+August+2007)+1.+For+an+excellent+perspective+see+Alan+Young,+“We're+Not+Rats…+But+Snooty+Lawyers+are+bullying+their+way+out+of+favour”+NOW+Magazine+(6+September+2007),+online:+http://www.nowtoronto.com/issues/2007-09-06/news_story6_p.html/.>Google Scholar

67 See Competition Bureau of Canada, Report, Self-Regulated Professions—Balancing Competition and Regulation (11 December 2007) [Competition Bureau, Self-Regulated Professions]. (The professions studied included accountants, lawyers, optometrists, pharmacists, and real estate agents).Google Scholar

68 See UK, Secretary of State for Constitutional Affairs, Review of the Regulatory Framework For Legal Services in England and Wales by Sir David Clementi (London: Ministry of Justice, 2004); and Legal Services Act 2007 (UK), 2007, c. 29.Google Scholar

69 See e.g. Virginia Galt, “Shakeup urged for the professions” The Globe and Mail (12 December 2007) B5; Madhavi Acharya & Tom Yew, “Watchdog scrutinizes professions; Protect consumers first, self-regulators are told” The Toronto Star (12 December 2007) B1; and William Watson, “Professional protection” National Post (14 December 2007), online: <http://www.nationalpost.com/rss/Story.html?id=166988>. A search conducted in January 2008 on FP Infomart—a database containing the leading newspapers in Canada—revealed only six stories on the report, including wire stories. There was no formal reaction by the Federation of Law Societies. See Federation of Law Societies, “What's New,” online: <http://www.flsc.ca/en/whatsnew/whatsnew.asp>. A review of the websites of all of the law societies in Canada reveals no press releases or statements in response to the report. See e.g. Law Society of Upper Canada, News Releases, online: <http://www.lsuc.on.ca/latest-news/b/news-releases/index.cfm?expandYear=2007>; Law Society of British Columbia, Media-News Releases, online: <http://www.lawsociety.bc.ca/media/news/intro.html>. For a report on the reaction of the legal profession see Michael Rappaport, “Competition bureau's study draws tepid reaction from legal community” The Lawyers Weekly (11 January 2008), online: <http://www.lawyersweekly.ca/index.php?section=article&articleid=599>. In this article, Queen's law professor Paul Paton refers to the study as “not as bold as it could be.”.+A+search+conducted+in+January+2008+on+FP+Infomart—a+database+containing+the+leading+newspapers+in+Canada—revealed+only+six+stories+on+the+report,+including+wire+stories.+There+was+no+formal+reaction+by+the+Federation+of+Law+Societies.+See+Federation+of+Law+Societies,+“What's+New,”+online:+.+A+review+of+the+websites+of+all+of+the+law+societies+in+Canada+reveals+no+press+releases+or+statements+in+response+to+the+report.+See+e.g.+Law+Society+of+Upper+Canada,+News+Releases,+online:+;+Law+Society+of+British+Columbia,+Media-News+Releases,+online:+.+For+a+report+on+the+reaction+of+the+legal+profession+see+Michael+Rappaport,+“Competition+bureau's+study+draws+tepid+reaction+from+legal+community”+The+Lawyers+Weekly+(11+January+2008),+online:+.+In+this+article,+Queen's+law+professor+Paul+Paton+refers+to+the+study+as+“not+as+bold+as+it+could+be.”>Google Scholar

70 See Marketing, Leger, Report, “Profession Barometer” (15 May 2007), online: <http://www.legermarketing.com/documents/spclm/070522ENG.pdf>. The level of trust in lawyers was highest in the Atlantic provinces (57%) and lowest in British Columbia (46%). Consistent with the national trend, public trust in lawyers actually increased in Ontario between 2006 (48%) and 2007 (51%), despite or irrespective of the various public scandals there..+The+level+of+trust+in+lawyers+was+highest+in+the+Atlantic+provinces+(57%)+and+lowest+in+British+Columbia+(46%).+Consistent+with+the+national+trend,+public+trust+in+lawyers+actually+increased+in+Ontario+between+2006+(48%)+and+2007+(51%),+despite+or+irrespective+of+the+various+public+scandals+there.>Google Scholar

71 In a paper that he presented at the Law Society of Alberta's 100th Anniversary, Richard Devlin offered ten reasons that raise concern that the regulation of the legal system might not be working as well as it should in a democratic society. There is significant overlap between Devlin's list and my account in this part. Devlin's list contains: (1) The Ken Murray case; (2) Disclosure of Imminent Financial Harm; (3) Protection of the Public from Incompetent Lawyers, i.e., the Finney case, supra note 44; (4) Sexual Relations with a Client / George Hunter; (5) Discipline in the Protection of Victims of Residential Schools; (6) Billing and Fees in the Residential Schools Cases; (7) Mandatory Continuing Legal Education; (8) Fees and Concerns over Access to Justice; (9) Self-Represented Litigants in Court; and (10) Pro Bono. See Richard Devlin, “The End(s) of Self-Regulation” (Paper presented at the Law Society of Alberta's 100th Year Anniversary Conference, “Canadian Lawyers in the 21st Century,” Edmonton, Alberta, 27 October 2007), Alta. L. Rev. [forthcoming in 2008] [Devlin, “Self-Regulation”].Google Scholar

72 In my earlier article, Dodek, “A Subject in Search of Scholarship,” supra note 1 at 119, 122, I wrote about first and second generations of scholarship on Canadian legal ethics. I think it makes more sense to conceive of different approaches as waves, rather than as generations which succeed each other. In this I owe a debt of gratitude to the excellent article which analyzes different conceptions of access to justice in terms of successive waves. See Roderick A. Macdonald, “Access to Justice in Canada Today: Scope, Scale, Ambitions” in Julia Bass, W.A. Bogart & Frederick H. Zemans, eds., Access to Justice for a New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005) 19 at 20–23 [Bass, Bogart & Zemans, Access to Justice for a New Century].Google Scholar

73 Orkin, , Legal Ethics, supra note 4.Google Scholar

74 See MacKenzie, , supra note 5.Google Scholar

75 Derek Lundy spearheaded the Barristers & Solicitors in Practice (BSIP) project. He is the best-selling author of The Bloody Red Hand: A Journey through Truth, Myth and Terror in Northern Ireland (Toronto: Knopf Canada, 2006); The Way of a Ship: A Square-Rigger Voyage in the Last Days of Sail (Toronto: Knopf Canada, 2002); Godforsaken Sea: Racing the World's Most Dangerous Waters (Toronto: Knopf Canada, 1998); and Scott Turow: Meeting the Enemy (Toronto: ECW Press, 1995).Google Scholar

76 See Cordery on Solicitors, 9th rev. ed., (London: Butterworths Law, 1995) (loose-leaf). As one of the original contributors to BSIP (with Jerome D. Ziskrout for the chapter on Professional Conduct), I recall being sent the corresponding chapter of Cordery on Solicitors and being instructed to follow that format. See also the comments of Derek Lundy in the original Preface to Adam M. Dodek & Jeffrey G. Hoskins, Barristers & Solicitors in Practice (Markham: LexisNexis Canada, 2007) at 1 (Preface).Google Scholar

77 Dodek, & Hoskins, , ibid. Google Scholar

78 Ibid. Google Scholar

79 Halsbury's Laws of Canada, (Markham: LexisNexis, 2006).Google Scholar

80 Lord Hailsham of St. Marylebone, ed., Halsbury's Laws of England, 4th ed. (London: Butterworths, 1973); see e.g. Halsbury's Laws of Australia (Sydney: Butterworths, 1991).Google Scholar

81 Halsbury's Laws of Canada, 1st ed., Legal Profession (Markham: LexisNexis Canada, 2007).Google Scholar

82 See MacNair, M. Deborah, Conflicts of Interest: Principles of the Legal Profession (Aurora: Canada Law Book, 2005).Google Scholar

83 See Hubbard, Robert W., Susan Magotiaux & Suzanne M. Duncan, The Law of Privilege in Canada (Aurora: Canada Law Book, 2006). For another comprehensive treatise see Beverley G. Smith, Professional Conduct for Lawyers and Judges, 3d ed. (Fredericton: Maritime Law Book, 2007).Google Scholar

84 Proulx, & Layton, , supra note 22.Google Scholar

85 Ethics and Canadian Criminal Law received the 2003 Walter Owen Book Prize from the Foundation for Legal Research in recognition of “outstanding new contributions to Canadian legal literature that enhance the quality of legal research in this country.” See The Walter Owen Book Prize, online: <http://www.irwinlaw.com/newsdetail.aspx?newsid=51>..>Google Scholar

86 See Proulx, & Layton, , supra note 22 at 481–530.Google Scholar

87 For Harry Arthurs’ work on the legal profession during these lean years of legal ethics scholarship, see “The Study of the Legal Profession in the Law School” (1970) 8 Osgoode Hall L.J. 183; “Discipline in the Legal Profession in Ontario” (1970) 7 Osgoode Hall L.J. 235; “Toronto Legal Profession: An Exploratory Survey” (1971) 21 U.T.L.J. 498; “Authority, Accountability and Democracy in the Government of the Ontario Legal Profession” (1971) 49 Can. Bar Rev. 1; “Counsel, Clients and Community” (1973) 11 Osgoode Hall L.J. 437; “The Future of Legal Services” (1973) 51 Can. Bar Rev. 15; “Progress and Professionalism: The Canadian Legal Profession in Transition” (1973) Law & Soc'y 1; “Barristers and Barricades: Prospects for the Lawyer as a Reformer” (1976) 15 U.W.O. L. Rev. 59; “Paradoxes of Canadian Legal Education” (1977) 3 Dal. L.J. 639; “Le droit vit-il à l'heure de sa société: allocution” (1978) 13 Thémis 243; “To Know Ourselves: Exploring the Secret Life of Canadian Legal Scholarship” (1985) 23 Osgoode Hall L.J. 403; “Law, Society and the Law Society” (1993) 27 L. Soc'y Gaz. 85; “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” (1995) 33 Alta. L. Rev. 800 [Arthurs, “The Dead Parrot”]; “A Lot of Knowledge is a Dangerous Thing: Will the Legal Profession Survive the Knowledge Explosion?” (1995) 18 Dal. L.J. 295; “Law, Legal Institutions, and the Legal Profession in the New Economy” (1996) 34 Osgoode Hall L.J. 1; “Lawyering in Canada in the 21 Century” (1996) 15 Windsor Y.B. Access Just. 202; “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields” (1997) 12:2 C.J.L.S. 219; “Why Canadian Law Schools Do Not Teach Legal Ethics,” supra note 5; with Richard Weisman & Frederick H. Zemans, “Canadian Lawyers: A Peculiar Professionalism” in Richard L. Abel & Philip S.C. Lewis, eds., Lawyers in Society: The Common Law World (Berkeley: University of California Press, 1988) 123; and with David A.A. Stager, Lawyers in Canada (Toronto: University of Toronto Press, 1990) [Stager & Arthurs, Lawyers in Canada].Google Scholar

88 There were a number of symposia or special editions of journals in the 1990s which produced thoughtful articles in the area. In August 1995, the Alberta Law Review published a special edition on “The Legal Profession and Ethics” (1995) 33 Alta. L. Rev. 719–943. Articles include Justice J.C. Major, “Lawyers’ Obligation to Provide Legal Services” at 719; W. Wesley Pue, “In Pursuit of Better Myth: Lawyers’ Histories and Histories of Lawyers” at 730 [Pue, “In Pursuit of Better Myth”]; Allan C. Hutchinson, “Calgary and Everything After: A Postmodern Revision of Lawyering” at 768 [Hutchinson, “Calgary and Everything After”]; Carole Curtis, “Alternative Visions of the Legal Profession in Society: A Perspective on Ontario” at 787; H.W. Arthurs, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” at 800; Esmeralda M.A Thornhill, “Ethics in the Legal Profession: The Issue of Access” at 810; Dianne Pothier, “On Not ‘Getting It'” at 817; The Hon. Wendy G. Baker, “Structure of the Workplace or, Should We Continue to Knock the Corners Off the Square Pegs or Can We Change The Shape of the Holes?” at 821; Alan D. Hunter, “A View as to the Profile of a Lawyer in Private Practice” at 831; Jonnette Watson Hamilton, “Metaphors of Lawyers’ Professionalism” at 833; Gavin MacKenzie, “The Valentine's Card in the Operating Room: Codes of Ethics and the Failing Ideals of the Legal Profession” at 859; Larry Chartrand, “The Appropriateness of the Lawyer as Advocate in Contemporary Aboriginal Justice Initiatives” at 874; René Laperriére, “L'éthique Et La Responsabilité Professionnelle Des Juristes En Matière De Compétence” at 882; A. Wayne MacKay, “Some Thoughts on a More Humanist and Equitable Legal Education” at 920; and Richard F. Devlin, “Normative, and Somewhere to Go? Reflections on Professional Responsibility” at 924 [Devlin, “Reflections”].Google Scholar

In 1996, the Canadian Journal of Law and Jurisprudence also published a symposium edition on legal ethics. See (1996) 9 Can. J.L. & Jur. 3 et seq. (wherein David Luban speaks prematurely of “A New Canadian legal ethics” in his introduction). Articles in this collection include David Luban, “Introduction: A New Canadian legal ethics?” at 3; Hon. James M. Spence, “Called to the Bar” at 5; Susan P. Koniak, “Law and Ethics in a World of Rights and Unsuitable Wrongs” at 11; Gavin MacKenzie, “Breaking the Dichotomy Habit: The Adversary System and the Ethics of Professionalism” at 33; Jerome E. Bickenbach, “The Redemption of the Moral Mandate of the Profession of Law” at 51; Alice Woolley, “Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer” at 61 [Woolley, “Zealousness”]; Richard Bronaugh, “Thoughts on Money, Winning, and Happiness in the Practice of Law” at 101; Donald E. Buckingham, “Rules and Roles: Casting Off Legal Education's Moral Blinders for an Approach that Encourages Moral Development” at 111; Barry Hoffmaster, “Hanging Out a Shingle: The Public and Private Services of Professionals” at 127; and Peter Mercer, Margaret Ann Wilkinson & Terra Strong, “The Practice of Ethical Precepts: Dissecting Decision-Making by Lawyers” at 141. Of the Canadians in this group (Luban and Koniak are American legal academics), a few—including Alice Woolley of the University of Calgary and Mary Ann Wilkinson and Peter Mercer of the University of Western Ontario—continued with subsequent scholarly work in legal ethics. See Margaret Ann Wilkinson, Christa Walker & Peter Mercer, “Testing Theory and Debunking Stereotypes: Lawyers’ Views on the Practice of Law” (2005) 18 Can. J.L. & Jur. 165; Margaret Ann Wilkinson, Christa Walker & Peter Mercer, “Do Codes of Ethics Actually Shape Legal Practice?” (2000) 45 McGill L.J. 645; and Margaret Ann Wilkinson, Peter Mercer & Terra Strong, “Mentor, Mercenary or Melding: An Empirical Inquiry into the Role of the Lawyer” (1996) 28 Loy. U. Chicago L.J. 373.

89 In this vein see David M. Tanovich, “Law's Ambition and the Reconstruction of Role Morality in Canada” (2005) 28 Dal. L.J. 267 (Tanovich teaches The Legal Profession at Windsor); Devlin, , Downie & Lane, supra note 11; Jocelyn Downie, “A Case for Compulsory Legal Ethics Education in Canadian Law Schools” (1997) 20 Dal. L.J. 224 (Downie teaches The Legal Profession and Professional Responsibility at Dalhousie); McGillivray, Anne, “He Would Have Made a Wonderful Solicitor: Law, Modernity and Professionalism in Bram Stoker's Dracula” in W. Wesley Pue & David Sugarman, eds., Lawyers and Vampires: Cultural Histories of Legal Professions (Oxford: Hart Publishing, 2003) 225 [Pue & Sugarman, Lawyers and Vampires]; and Anne McGillivray, “‘A moral vacuity in her which is difficult if not impossible to explain': Law, psychiatry and the remaking of Karla Homolka” (1998) 5 Int'l J. Legal Prof. 255 [McGillivary, “A moral vacuity”] (McGillivray teaches The Legal Profession and Professional Responsibility at Manitoba).Google Scholar

90 Devlin, , Downie & Lane, ibid. at 767.Google Scholar

91 For publications by David Layton see e.g. Proulx & Layton, supra note 22; “Defence Counsel's Ethical Duties and Frivolous Charter Applications” The Verdict 110 (October 2006) 25; “The Public Safety Exception: Confusing Confidentiality, Privilege and Ethics” (2001) 6 Can. Crim. L. Rev. 217; and “The Pre-Trial Removal of Counsel for Conflict of Interest: Appealability and Remedies on Appeal” (1999) 4 Can. Crim. L. Rev. 25.Google Scholar

92 For publications by Richard Devlin see e.g. “Self-Regulation,” supra note 71; Devlin, Downie & Lane, supra note 11; “Conflicts of Interest: Where Are We Since R. v. Neil?” The Society Record 30:6 (2005) 113; “Of Legends and Pro Bono” Lawyers’ Weekly 25:32 (23 December 2005); with Jocelyn Downie, “Self Regulation in the Shire” Society Record 22:1 (2004) 18; “Jurisprudence for Judges: Or, Why Legal Theory Matters for Social Context Education” (2001) 27 Queen's L.J. 161, translated and republished as “la théorie générale du droit pour les juges” (2002) 4 R.C.L.F. 197; with Natasha Kim & A. Wayne MacKay, “Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a ‘Triple P’ Judiciary” (2000) 38 Alta. L. Rev. 734; “Judging and Diversity: Justice or Just Us?/Les Décisions Judicaires et la Diversité: La Justice des Justiciables ou de justiciers?” (1996) 20:3 Prov. Judges J. 4; Book Reviews of Judicial Conduct and Accountability by David Marshall and A Place Apart: Judicial Independence and Accountability in Canada by Martin Friedland, (1996) 75 Can. Bar Rev. 398; “We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective” (1995) 18 Dal. L.J. 408; and “Reflections,” supra note 88 at 924.Google Scholar

93 For publications by Allan Hutchison see e.g. Legal Ethics, supra note 3; “Who are ‘Clients'? (And Why it Matters)” (2006) 84 Can. Bar Rev. 411; “Taking it Personally: Legal Ethics and Client Selection” (1998) 1 Legal Ethics 168; “Legal Ethics for a Fragmented Society: Between Professional and Personal” (1998) 5 Int'l J. Legal Prof. 175; and Hutchinson, “Calgary and Everything After,” supra note 88.Google Scholar

94 For publications by Michael Code see e.g. “Crown Counsel's Responsibilities when advising the Police at the PreCharge Stage” (1998) 40 Crim. L.Q. 326; with Kent Roach, “The Role of the Independent Lawyer and Security Certificates” (2006) 52 Crim. L.Q. 85; “Counsel's Duty of Civility: an Essential Component of Fair Trials and an Effective Justice System” (2007) 11 Can. Crim. L. Rev. 97; and with Kent Roach, “The Independence of the Bar and the public interest imperative: lawyers as gatekeepers, whistleblowers, or instruments of state enforcement” in In the Public Interest: The Report and Research Papers of the Law Society of Upper Canada's Task Force on the Rule of Law and the Independence of the Bar (Toronto: Irwin Law, 2007) 151.Google Scholar

95 For publications by Randal N.M. Graham see e.g. “In Defence of Ethinomics” (2005) 8 Legal Ethics 160; “Morality v. Markets: An Economic Account of Legal Ethics” (2005) 8 Legal Ethics 87; Legal Ethics: Theories, Cases and Professional Regulation (Toronto: Emond Montgomery Publications, 2004); and “Moral Contexts” (2001) 50 U.N.B.L.J. 77.Google Scholar

96 For publications by Paul D. Paton see e.g. “Accountants, Privilege and the Problem of Working Papers” (2005) 28 Dal. L.J. 353; “Corporate Counsel as Corporate Conscience: Ethics and Integrity in the Post-Enron Era” (2006) 84 Can. Bar Rev. 533; and with Deborah L. Rhode, “Lawyers, Ethics and Enron” (2002) 8 Stan. J.L. Bus. & Fin. 9. Professor Paton has left Canada to take up a position at McGeorge University of the Pacific in Sacramento, California in the summer of 2008.Google Scholar

97 For publications by Alice Woolley see e.g. “Imperfect Duty: Lawyers’ Obligation to Foster Access to Justice” (Paper presented at the Law Society of Alberta's 100th Year Anniversary Conference, “Canadian Lawyers in the 21st Century,” Edmonton, Alberta, 27 October 2007), (2008) 46 Alta. L. Rev. [forthcoming] [Woolley, “Imperfect Duty”]; “Tending the Bar: The Good Character Requirement for Law Society Admission” (2008) 31 Dal. L.J. [forthcoming] [Woolley, “Tending the Bar”]; with Sara L. Bagg, “Ethics Teaching in Law School” (2007) 1 Can. Legal Educ. Ann. Rev. 85; “Evaluating Value: A Historical Case Study of the Capacity of Alternative Billing Methods to Reform Unethical Hourly Billing” (2005) 12 Int'l J. Legal Prof. 339; “Can the Dismal Science Save the ‘Dog of the Curriculum'?” (2005) 8 Legal Ethics 148 (Review Essay of Randal N. Graham's Legal Ethics, supra note 95); “Time for Change: Unethical Hourly Billing in the Canadian Profession and What Should be Done About It” (2004) 83 Can. Bar Rev. 859; and “Zealousness,” supra note 88 at 61.Google Scholar

98 I would place myself in this category of devoting a significant portion of my research to issues of legal ethics. See Adam M. Dodek & Jeffrey G. Hoskins, eds., Canadian Legal Practice: A Guide for the 21st Century (Toronto: LexisNexis, 2009); “Constitutional Legitimacy,” supra note 52; “Forsaking the Public Interest: Law Society of New Brunswick v. Ryan” (2002) 25 Advocates’ Q. 230; “Doing our Duty: The Case for a Duty of Disclosure to Prevent Death or Serious Harm” (2001) 50 U.N.B.L.J. 215; “The Public Safety Exception to Solicitor-Client Privilege: Smith v. Jones” (2001) 34 U.B.C. L. Rev. 293; “A Subject in Search of Scholarship,” supra note 1; and “Comparative Confidentiality: Lessons From Canada” (1995) 20 J. Legal Prof. 51 [Dodek, “Comparative Confidentiality”].Google Scholar

99 Paul Paton studied and collaborated with Deborah Rhode at Stanford Law School. Alice Woolley did her LL.M. at Yale and studied with David Luban. Trevor Farrow worked with Andrew Kaufman at Harvard Law School while obtaining his LL.M. and visiting on a fellowship. In my case, I obtained my J.D. at Harvard Law School and took the mandatory course in The Legal Profession with Professor Daniel Coquillette, who inspired my interest in the subject and also encouraged me to publish my first law review article. See Dodek, “Comparative Confidentiality,” ibid. Google Scholar

100 Allan Hutchinson was the Inns of Court Fellow in the Legal Profession at Lincoln's Inn and the Institute for Advanced Legal Studies in London, England. See Hutchinson, Legal Ethics, supra note 3 at xviii.Google Scholar

101 See e.g. Voyvodic, Rose, “Lawyers Meet Social Context: Understanding Cultural Competence” (2006) 84 Can. Bar Rev. 563; “‘Change is Pain': Ethical Legal Discourse and Cultural Competence” (2005) 8 Legal Ethics 55.Google Scholar

102 See especially Pue & Sugarman, Lawyers and Vampires, supra note 89; “Globalization and Legal Education: Views from the Outside-In” (2001) 8 Int'l J. Legal Prof. 87; with Annie Rochette, “Back to Basics? University Legal Education and 21st Century Professionalism” (2001) 20 Windsor Y.B. Access Just. 167; with Ruth Buchanan & Marilyn MacCrimmon, “Legal Knowledge for Our Times: Introduction to a Symposium on Education and Legal Knowledge” (2001) 20 Windsor Y.B. Access Just. xiii; with Dawna Tong “The Best and the Brightest? Canadian Law School Admissions” (1999) 37 Osgoode Hall L.J. 843; “British Masculinities, Canadian Lawyers: Canadian legal education, 1900–1930” (1999) 16 Law in Context 80; “Lawyering for a Fragmented World: Professionalism after God” (1998) 5 Int'l J. Legal Prof. 125; “Common Law Legal Education in Canada's Age of Light, Soap and Water” (1995) 23 Man. L.J. 654; “In Pursuit of Better Myth,” supra note 88; “A Profession in Defense of Capital?” (1992) 7:2 C.J.L.S. 267; “Becoming ‘Ethical': Lawyers’ Professional Ethics in Early Twentieth Century Canada” (1991) 20 Man. L.J. 227; “Moral Panic at the English Bar: Paternal vs. Commercial Ideologies of Legal Practice in the 1860s” (1990) 15 Law & Soc. Inquiry 49; “Rethinking ‘Professionalism': Taking The Professions in Early Modern England Seriously” (1989) 4 C.J.L.S. 175; and “Guild Training vs. Professional Education: The Committee on Legal Education and the Law Department of Queen's College, Birmingham in the 1850s” (1989) 33 Am. J. Legal Hist. 241. For a list of Professor Pue's publications see online: University of British Columbia, Faculty of Law <http://faculty.law.ubc.ca/Pue/index-pub.html>..>Google Scholar

103 For publications by Constance Backhouse see e.g. “What is Access to Justice?” in Bass, Bogart & Zemans, Access to Justice for a New Century, supra note 72; “The Chilly Climate for Women Judges: Reflections on the Ewanchuk Decision” (2003) 15 C.J.W.L. 167; “The Changing Landscape of Canadian Legal Education” (2001) 20 Windsor Y.B. Access Just. 25; “Bias in Canadian Law: A Lopsided Precipice” (1998) 10 C.J.W.L. 170; and Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Women's Press for the Osgoode Society, 1991). For a complete list of Professor Backhouse's publications, see online: <http://www.constancebackhouse.ca/publications/other-publications.html>..>Google Scholar

104 For publications by Joan Brockman see e.g. “An Update on Self-Regulation in the Legal Profession (1989-2000): Funnel In and Funnel Out” (2004) 19:1 C.J.L.S. 55; “Aspirations and Appointments to the Judiciary” (2003) 15 C.J.W.L. 138; with Caroline Murdoch, “Who's On First? Disciplinary Proceedings by Self-Regulating Professions and other Agencies for ‘Criminal’ Behaviour” (2001) 64 Sask. L. Rev. 29; “A Wild Feminist at Her Raving Best: Reflections on Studying Gender Bias in the Legal Profession” (2000) 28:1 Resources for Feminist Research 61; with Fiona M. Kay, “Barriers to Gender Equality in the Canadian Legal Establishment” (2000) 8 Fem. Legal Stud. 169; “‘A Cold-Blooded Effort to Bolster Up the Legal Profession': The Battle Between Lawyers and Notaries in British Columbia, 1871–1930” (1999) 32 Social History 209; and Gender in the Legal Profession: Fitting or Breaking the Mould (Vancouver: UBC Press, 2001).Google Scholar

105 For publications by Fiona M. Kay see e.g. “The Social Significance of the First Women Lawyers” (2007) 45 Osgoode Hall L.J. 397; with Jean E. Wallace, “The Professionalism of Practicing Law: A Comparison Across Two Work Contexts” (Paper presented at the AGM of the American Sociological Association, Montreal, Quebec, Canada, 11 August 2006) [unpublished]; with John Hagan, “Even Lawyers Get the Blues: Gender, Depression and Job Satisfaction in Legal Practice” (2007) 41 Law & Soc'y Rev. 51; “Professionalism and Exclusionary Practices: Shifting the Terrain of Privilege and Professional Monopoly” (2004) 11 Int'l J. Legal Prof. 3; with John Hagan, “Building Trust: Social Capital, Distributive Justice and Loyalty to the Firm” (2003) 28 Law & Soc. Inquiry 483; “Crossroads to Innovation and Diversity: The Careers of Women Lawyers in Quebec” (2002) 47 McGill L.J. 699; with Joan Brockman, “Barriers to Gender Equality in the Canadian Legal Establishment” (2000) 8 Fem. Legal Stud. 169; with John Hagan, “Cultivating Clients in the Competition for Partnership: Gender and Organizational Restructuring of Law Firms in the 1990s” (1999) 33 Law & Soc'y Rev. 517; and with John Hagan, Gender in Practice: A Study of Lawyers’ Lives (New York: Oxford University Press, 1995). For a complete list of Professor Kay's publications, see online: Queen's University, Department of Sociology <http://queensu.ca/sociology/files/Recent%20Publications.pdf>..>Google Scholar

106 See Leiper, Jean McKenzie, Bar Codes: Women in the Legal Profession (Vancouver: UBC Press, 2006).Google Scholar

107 For publications by Mary Jane Mossman see e.g. The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions (Oxford: Hart Publishing, 2006); “Legal Education as a Strategy for Change in the Legal Profession” in E. Sheehy & S. McIntyre, eds., Calling for Change (Ottawa: University of Ottawa Press, 2006) 179; “Defining Moments for Women as Lawyers: Reflections on the Impact of Numerical Gender Equality” (2005) 17 C.J.W.L. 15; and “Gender Bias and the Legal Profession: Challenges and Choices” in J. Brockman & D. Chunn, eds., Investigating Gender Bias: Law, Courts, and the Legal Profession (Toronto: Thompson Educational Publishing, 1993) 147. For a complete list of Professor Mossman's publications, see online: Osgoode Hall Law School <http://osgoode.yorku.ca/osgmedia.nsf/research/mossman_mary_jane>..>Google Scholar

108 See Woolley, , “Tending the Bar,” supra note 97.Google Scholar

109 Alice Woolley et al., Legal Ethics and Professional Responsibility (Toronto: LexisNexis Canada) [forthcoming in 2008].Google Scholar

110 Graham's theory was the subject of an entire edition of the English journal, Legal Ethics. See W. Bradley Wendel, “Review Symposium: Introduction: Economic Rationality vs. Ethical Reasonableness: The Relevance of Law and Economics for Legal Ethics” (2005) 8 Legal Ethics 107; Kim Economides & Julian Webb, “Ethinomics and the Determinants of Legal Professionalism” (2005) 8 Legal Ethics 1; David McGowan, “Some Realism about Parochialism: The Economic Analysis of Legal Ethics” (2005) 8 Legal Ethics 117; Duncan Webb, “The Boundaries of Economic Analysis—Is Ethinomics Possible?” (2005) 8 Legal Ethics 138; and Alice Woolley, “Can the Dismal Science Save the ‘Dog of the Curriculum'?” (2005) 8 Legal Ethics 148.Google Scholar

111 For selected articles before the rise of the new scholarship of legal ethics see e.g. Connie Reeve, “The Quandary of Setting Standards for Mediators: Where Are We Headed?” (1998) 23 Queen's L.J. 441; Owen V. Gray, “Protecting the Confidentiality of Communications in Mediation” (1998) 36 Osgoode Hall L.J. 667; and Michael Coyle, “Defending the Weak and Fighting Unfairness: Can Mediators Respond to the Challenge?” (1998) 36 Osgoode Hall L.J. 625.Google Scholar

112 See Benson, Marjorie L., “A Negotiating Ethics Study” (2006) 84 Can. Bar Rev. 593.Google Scholar

113 Benson, Marjorie L., The Skills and Ethics of Negotiation: Wisdom and Reflections of Western Canadian Civil Practitioners (Saskatoon: College of Law, University of Saskatchewan, 2007).Google Scholar

114 Ryan, supra note 45, is a clear example of this. See especially paras. 3–10. The lawyer took a small cash retainer from two clients to initiate a wrongful dismissal case. Ryan never filed suit, and after missing the limitations period he “spun an elaborate web of deceit” for five and a half years, including inventing tales of imaginary motions, taking his clients to the site of a non-existent discovery, and forging a judgment of the New Brunswick Court of Appeal. Finally, Ryan admitted to his clients that the “whole thing was a lie” and was disbarred by the Law Society of New Brunswick.Google Scholar

115 See Colleen M. Hanycz, Trevor C.W. Farrow & Zemans, Frederick H., The Theory and Practice of Representative Negotiation (Toronto: Emond Montgomery, 2008). See also Trevor C.W. Farrow, “The Negotiator-as-Professional: Understanding the Competing Interests of a Representative Negotiator” (2007) 7 Pepp. Disp. Resol. L.J. 373.Google Scholar

116 See Pirie, Andrew, Book Review of The New Lawyer: How Settlement is Transforming the Practice of Law by Julie Macfarlane, (2006) 46 Osgoode Hall L.J. 203.Google Scholar

117 Macfarlane, Julie, The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver: UBC Press, 2008).Google Scholar

118 See Macfarlane, Julie, “Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model” (2002) 40 Osgoode Hall L.J. 49; Julie Macfarlane, “Culture Change: A Tale of Two Cities and Mandatory Court-Connected Mediation” (2002) J. Disp. Resol. 242.Google Scholar

119 See Burnett, Helen, “Wilfrid Laurier throws hat in for law school; two universities in the hunt” The Law Times (24 September 2007) 4; Louise Brown & Tracey Tyler, “4 universities vie for law school; Lakehead, Laurier, Waterloo among institutions seeking Law Society's approval to start programs” The Toronto Star (24 April 2008) A2; and “Another Law School?” Toronto Star (27 April 2008) A16 (noting Law Society of Upper Canada's approval in principle of new law school at Lakehead University in Thunder Bay).Google Scholar

120 See Law Society of Upper Canada, Ontario Lawyers’ Gazette (Spring 2007) 34, online: <http://www.lsuc.on.ca/media/olg_spring07_task_force.pdf>. In addition to the passage of time, one of the precipitating factors in launching this review was the Government of Ontario's passage of the Fair Access to Regulated Professions Act, 2006 S.O. 2006, c. 31. The task force provided an interim report to Convocation in September 2007. See Law Society of Upper Canada, Licensing and Accreditation Task Force, Report to Convocation (20 September 2007), online: http://www.lsuc.on.ca/media/convsept07_licensing_accreditation.pdf [LSUC, Task Force]. Reference to the Federation's Task Force is found at para. 13. See also Law Society of Upper Canada, Consultation Report (January 2008), online: <http://www.lsuc.on.ca/media/licensing.pdf>..+In+addition+to+the+passage+of+time,+one+of+the+precipitating+factors+in+launching+this+review+was+the+Government+of+Ontario's+passage+of+the+Fair+Access+to+Regulated+Professions+Act,+2006+S.O.+2006,+c.+31.+The+task+force+provided+an+interim+report+to+Convocation+in+September+2007.+See+Law+Society+of+Upper+Canada,+Licensing+and+Accreditation+Task+Force,+Report+to+Convocation+(20+September+2007),+online:+http://www.lsuc.on.ca/media/convsept07_licensing_accreditation.pdf+[LSUC,+Task+Force].+Reference+to+the+Federation's+Task+Force+is+found+at+para.+13.+See+also+Law+Society+of+Upper+Canada,+Consultation+Report+(January+2008),+online:+.>Google Scholar

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122 See Devlin, Downie, & Lane, supra note 11 at 762–65 (describing institutional resistance, faculty resistance, and student resistance). On leadership in reforming the law school curriculum see Stephen G.A. Pitel, “Charting New Courses: Leadership in Curriculum Reform” (Paper Presented at the Eighth Colloquium on the Legal Profession at the University of Western Ontario, London, Ontario, 25 May 2007), online: <http://www.lsuc.on.ca/media/eighth_colloquium_charting_new_courses.pdf>..>Google Scholar

123 Hutchinson, , Legal Ethics and Professional Responsibility, 1st ed., supra note 3 at 4.Google Scholar

124 Cecil (“Caesar”) Wright founded the modern University of Toronto Faculty of Law. See C. Ian Kyer & Jerome E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario 1923–1957 (Toronto: The Osgoode Society, 1987); Friedland, Martin L., The University of Toronto: A History (Toronto: University of Toronto Press, 2002).Google Scholar

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126 See articles cited ibid. The new Centre for Professionalism, Ethics and Public Service (PEPS) is to hold its inaugural symposium in April 2008 on the subject of how to teach legal ethics. See The Centre for Professionalism, Ethics and Public Service (PEPS), online: University of Toronto <http://www.law.utoronto.ca/faculty_content.asp?itemPath=1/9/12/0/0&contentId=1602&cType=webpages>..>Google Scholar

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130 See Stephen G.A. Pitel, Peter Buza & Beeforth, Michael, “Legal Ethics and Professionalism Teaching Materials Database” CD-ROM: (Faculty of Law, University of Western Ontario, Chief Justice of Ontario's Advisory Committee on Professionalism, September 2007).Google Scholar

131 See University of Toronto, Centre for Professionalism, Ethics and Public Service (PEPS), online: <http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/12/0/0/0&contentId=1602>..>Google Scholar

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133 See Hutchinson, , Legal Ethics, supra note 3 at 13–17.Google Scholar

134 See Tyler, , “A 3-day trial likely to cost you $60,000,” supra note 59 and additional articles from the Toronto Star cited therein.Google Scholar

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136 See e.g. Maranda v. Richer, [2003] 3 S.C.R. 193 at para. 40, where Justice Deschamps explains:Google Scholar

[t]he privilege performs the social function of preserving the quality, freedom and confidentiality of information exchanged between a client and his or her lawyer in the context of a legal consultation. It enables all individuals to participate in society with the benefit of the information and advice needed in order to exercise their rights. It is closely associated with access to justice.

137 Stager, & Arthurs, , Lawyers in Canada, supra note 87 at 31.Google Scholar

138 Williams, Bryan, “Abuse of power by self-governing bodies” in Law Society of Upper Canada Special Lectures (Toronto: IrwinLaw, 1979) 345.Google Scholar

139 For efforts in this respect see William H. Hurlburt, The Self-Regulation of the Legal Profession in Canada and in England and Wales (Edmonton: Law Society of Alberta, 2000). Much of the work of Harry Arthurs involves the sustained criticism of self-regulation. See especially Arthurs, “The Dead Parrot,” supra note 87. Similarly, much of Wesley Pue's work has criticized aspects of self-regulation. See e.g. Pue, “Becoming ‘Ethical,'” supra note 6; and Pue, “In Pursuit of Better Myth,” supra note 88.Google Scholar

140 Supra note 94. See also Paul Douglas Paton, In the Public Interest: Threats to Self-Regulation of the Legal Profession in Ontario (S.J.D. Thesis, Stanford Law School, 1998-2006) [unpublished].Google Scholar

141 See e.g. Pue, “In Pursuit of Better Myth,” supra note 88.Google Scholar

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143 Bureau, Competition, Self-Regulated Professions, supra note 67, could have provided such an opportunity but the report accepted self-regulation of the legal profession as a given. For an inquiry into the general issue of self-regulation see Andrew Green & Roy Hrab, “Self-Regulation and the Protection of the Public Interest” (Research Paper no. 26, Prepared for the Panel of the Role of the Government in Ontario, June 2003), online: University of Toronto <http://www.law-lib.utoronto.ca/investing/reports/rp26.pdf>. Findings included that self-regulation required some check on self-interested behaviour and that the public's power to check self-regulation has its limits. For economic analyses of different aspects of the regulation of lawyers in Canada, see Michael Trebilcock & Lilla Csorgo, “Multi-Disciplinary Professional Practices: A Consumer Welfare Perspective” (2001) 24 Dal. L.J. 1 [Trebilcock & Csorgo, “Multi-Disciplinary Professional Practices”]; Michael Trebilcock, “Regulating Legal Competence” (2001) 34 Can. Bus. L.J. 444 [Trebilcock, “Regulating Legal Competence”]; and Gillian Hadfield, “The Price of Law: How the Market for Lawyers Distorts the Justice System” (2000) 98 Mich. L. Rev. 953 [Hadfield, “The Price of Law”]..+Findings+included+that+self-regulation+required+some+check+on+self-interested+behaviour+and+that+the+public's+power+to+check+self-regulation+has+its+limits.+For+economic+analyses+of+different+aspects+of+the+regulation+of+lawyers+in+Canada,+see+Michael+Trebilcock+&+Lilla+Csorgo,+“Multi-Disciplinary+Professional+Practices:+A+Consumer+Welfare+Perspective”+(2001)+24+Dal.+L.J.+1+[Trebilcock+&+Csorgo,+“Multi-Disciplinary+Professional+Practices”];+Michael+Trebilcock,+“Regulating+Legal+Competence”+(2001)+34+Can.+Bus.+L.J.+444+[Trebilcock,+“Regulating+Legal+Competence”];+and+Gillian+Hadfield,+“The+Price+of+Law:+How+the+Market+for+Lawyers+Distorts+the+Justice+System”+(2000)+98+Mich.+L.+Rev.+953+[Hadfield,+“The+Price+of+Law”].>Google Scholar

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145 Thanks to Alice Woolley for discussing the issues in this paragraph, among many others.Google Scholar

146 Wilson, Bertha, Touchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar Association, 1993). See also Elizabeth Sheehy & Sheila McIntyre, Calling for Change: Women, Law, and the Legal Profession (Ottawa: University of Ottawa Press, 2006).Google Scholar

147 See Law Society of Upper Canada, Report for the Retention of Women in Private Practice Working Group (21 February 2008), online: <http://www.lsuc.on.ca/latest-news/a/hottopics/retention-of-women-in-private-practice-working-group/>..>Google Scholar

148 See comments by Johnston, Darlene, “Identifying the Landscape: The challenges confronting women and equity-seeking groups in the legal profession” (A Summit on Diversity in the Law: Moving Forward as a Profession, presented at the Faculty of Law, University of Toronto, 1 May 2007), online: <http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/7/3/0/0&contentId=1506> [A Summit on Diversity in the Law]. This phenomenon was reflected in a neologism reported in the New York Times and reprinted by the The Globe and Mail: “maternal profiling, n. Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, a group promoting the rights of mothers in the workplace.” See also Grant Barrett, “Of lolcats, mobisodes and gorno: a look at some of the words that went mainstream this year” The Globe and Mail (28 December 2007) A2.+[A+Summit+on+Diversity+in+the+Law].+This+phenomenon+was+reflected+in+a+neologism+reported+in+the+New+York+Times+and+reprinted+by+the+The+Globe+and+Mail:+“maternal+profiling,+n.+Employment+discrimination+against+a+woman+who+has,+or+will+have,+children.+The+term+has+been+popularized+by+members+of+MomsRising,+a+group+promoting+the+rights+of+mothers+in+the+workplace.”+See+also+Grant+Barrett,+“Of+lolcats,+mobisodes+and+gorno:+a+look+at+some+of+the+words+that+went+mainstream+this+year”+The+Globe+and+Mail+(28+December+2007)+A2.>Google Scholar

149 See e.g. CBA, Code of Professional Conduct, supra note 12, c. XX (Non-Discrimination); LSUC Rules, supra note 39, r. 5.03 (Sexual Harassment), r. 5.04 (Discrimination); Law Society of British Columbia, Professional Conduct Handbook, supra note 39, c. 2, r. 3 (Discrimination); Law Society of Alberta, Code of Professional Conduct, supra note 22, c. 1, r. 9 (discrimination), r. 10 (sexual harassment); and Nova Scotia Barristers’ Society, Legal Ethics Handbook, supra note 39, c. 24 (Discrimination).Google Scholar

150 See Backhouse, Constance, “Gender and Race in the Construction of ‘Legal Professionalism,'” supra note 10.Google Scholar

151 See Kay, Fiona M., “Integrity in a Changing Profession: Issues of Diversity and Inclusion” (Paper presented at the Fifth Colloquium on the Legal Profession, Faculty of Law, Queen's University, 28 November 2005), online: <http://www.lsuc.on.ca/media/kaydiversityintegrity.pdf>..>Google Scholar

152 A Summit on Diversity in the Law, supra note 148. (Comments at approximately 50–51 minutes into the web cast).Google Scholar

153 See Her Excellency the Right Honourable Adrienne Clarkson, “Speech on the Occasion of an Honorary Doctorate of Laws Degree from The Law Society of Upper Canada” (27 February 2003), online: Governor General of Canada <http://www.gg.ca/media/doc.asp?lang=e&DocID=1091>..>Google Scholar

154 See articles by Voydovic, supra note 101.Google Scholar

155 See e.g. Moore, Nancy J., “Regulating Law Firm Conflicts in the 21st Century: Implications of the Globalization of Legal Services and the Growth of the ‘Mega Firm'” (2005) 18 Geo. J. Legal Ethics 521.Google Scholar

156 See e.g. Kadzik, Alison M., “The Current Trend to Outsource Legal Work Abroad and the Ethical Issues Related to Such Practices” (2006) 19 Geo. J. Legal Ethics 731.Google Scholar

157 See Heffernan, James, “An American in Beijing: An Attorney's Ethical Considerations Abroad with a Client Doing Business with a Repressive Government” (2006) 19 Geo. J. Legal Ethics 721.Google Scholar

158 See e.g. Law Society of Alberta, Code of Professional Conduct, supra note 22, Preface (“A member of the Law Society remains subject to this Code no matter where the member practices law”); Whitaker, Jamie Y., “Remedying Ethical Conflicts in a Global Legal Market” (2006) 19 Geo. J. Legal Ethics 1079. See also Chi Carmody, “Talisman Energy, Sudan and Corporate Social Responsibility” (2000) 38 Can. Y.B. Int'l Law 237.Google Scholar

159 See Hutchinson, , Legal Ethics, supra note 3 at 37–41.Google Scholar

160 For some beginnings in this area see Allan C. Hutchinson, “‘In the Public Interest': The Responsibilities and Rights of Government Lawyers” (2008) 46 Osgoode Hall L.J. 105; Deborah MacNair, “In the Service of the Crown: Are Ethical Obligations Different for Government Counsel?” (2005) 84 Can. Bar Rev. 501; and Deborah MacNair, “The Role of the Federal Public Sector Lawyer: From Polyester to Silk” (2001) 50 U.N.B.L.J. 125.Google Scholar

161 See e.g. Anisman, Philip, “Regulation of Lawyers by Securities Commissions: Sarbanes-Oxley in Canada,” Policy Comment (Toronto: Capital Markets Institute, 2003), online: <http://www.rotman.utoronto.ca/cmi/news/LSUCpaper.pdf>..>Google Scholar

162 The sources are too numerous to mention but references contained in Proulx & Layton, supra note 22 are a good start. In addition, many issues are canvassed in Edward L. Greenspan & George Jonas, Greenspan: The Case for the Defence (Toronto: Macmillan, 1987); Greenspan, Edward L., ed., Counsel for the Defence: The Bernard Cohn Memorial Lectures in Criminal Law (Toronto: Irwin Law, 2005).Google Scholar

163 For a recent provocative article in this respect see William H. Simon, “The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example” (2008) 60 Stan. L. Rev. [forthcoming], online: Social Science Research Network <http://ssrn.com/abstract=1025984>..>Google Scholar

164 A recent profile of class action king Tony Merchant raises numerous ethical issues. See Timothy Taylor, “The Merchant of Menace,” supra note 34. It claims that Merchant billed 5,300 hours in a recent year (“many in the legal community are frankly amazed that anyone could have billed” that amount (at 29)) and notes that Merchant's firm placed a Yellow Pages ad for “the seemingly impartial ‘Lawyer Referral Service’ which in fact” links directly to one of the firm's lawyers (at 30). The article also raises some of the ethical issues with national and international class actions. Merchant's firm also engages in domain name relaying, a practice whereby one erroneously typed webpage (e.g. <http://www.mcdonaldsclassaction.com>) links to Merchant's webpage (<http://www.merchantlaw.com>) instead of the webpage that the user is actually seeking (<http://www.mcdonaldscontestclassaction.com> which links to the homepage of the law firm actually representing the plaintiff class, Toronto's Paliare Roland at <http://www.paliareroland.com/mcdonalds.asp>).)+links+to+Merchant's+webpage+()+instead+of+the+webpage+that+the+user+is+actually+seeking+(+which+links+to+the+homepage+of+the+law+firm+actually+representing+the+plaintiff+class,+Toronto's+Paliare+Roland+at+).>Google Scholar

165 For an example of American scholarship on the subject see David J. Kahne, “Curbing the Abuser, Not the Abuse: A Call for Greater Professional Accountability and Stricter Ethical Guidelines for Class Action Lawyers” (2006) 19 Geo. J. Legal Ethics 741. The Georgetown Journal of Legal Ethics devoted an entire issue to a symposium on ethical issues in class actions ((2005) 18 Geo. J. Legal Ethics 1161–1476). Some of the titles include “The Use of Coupon Compensation and Other Non-Pecuniary Redress”; “Tools for Ensuring that Settlements Are ‘Fair, Reasonable, and Adequate'”; “Special Ethics Concerns in Class Action Litigation”; “Do You Really Want Me to Know My Rights? The Ethics Behind Due Process in Class Action Notice Is More Than Just Plain Language: A Desire to Actually Inform”; and “The Ethical Imperative of a Lodestar Cross-Check: Judicial Misgivings About ‘Reasonable Percentage’ Fees in Common Fund Cases.”Google Scholar

166 For exceptions in this respect see Benjamin Alarie, “Rethinking the Approval of Class Counsel's Fees in Ontario Class Actions” (2007) 4 Can. Class Action Rev. 15; Shaun Finn, “Summoning Leviathan: A Critical Analysis of Class Action Theory and the Ethics of Group Litigation” (2007) 4 Can. Class Action Rev. 199; Michael P.A. Carabash, “Ethical Conduct for Class Counsel in Ontario” (2006) 3 Can. Class Action Rev. 617; J.J. Camp, “Avoiding Pitfalls and Potential Conflicts in Negotiating Class Counsel Fees and Obtaining Court Approval” (2006) 3 Can. Class Action Rev. 277; Kevin Rusli, “The Collusion Crisis: Problems and Proposals” (2005) 2 Can. Class Action Rev. 249; and Cara Faith Zweibel, “Settling for Less? Problems and Proposals in the Settlement of Class Actions” (2004) 1 Can. Class Action Rev. 165. It is notable that all of these articles are contained in a specialized journal on class actions rather than in general law reviews. See also Craig Jones, Theory of Class Actions (Toronto: Irwin Law, 2003) at 91–95, 143–50 (collusion), 240–46 (counsel fees).Google Scholar

167 See generally Blades, Melissa & Vermylen, Sarah, “Virtual Ethics for a New Age: The Internet and the Ethical Lawyer” (2004) 17 Geo. J. Legal Ethics 637; Christopher Hurld, “Untangling the Wicked Web: The Marketing of Legal Services on the Internet and the Model Rules” (2004) 17 Geo. J. Legal Ethics 827.Google Scholar

168 See Dowers, Robert, “Duties Invoked Under the Model Rules of Professional Conduct by a Mentally Impaired Lawyer” (2006) 19 Geo. J. Legal Ethics 681.Google Scholar

169 See Middlemiss, Jim, “Torys Teflon coat deflects hazards; Minimal fallout from Hollinger legal wrangles” National Post (12 December 2007) FP11.Google Scholar

170 The University of Western Ontario's major research initiative was entitled “Professionalism or Profit: The Changing Nature of Legal Ethics” and had both empirical and theoretical aspects. See Peter Mercer, Margaret Ann Wilkinson & Terra Strong, “The Practice of Ethical Precepts: Dissecting Decision-Making by Lawyers” (1996) 9 Can. J.L. & Juris. 141; and articles by Wilkinson et al. cited in supra note 88. Other notable exceptions include the work of sociologists Fiona Kay of Queen's University and Joan Brockman of Simon Fraser University, who have been embarked on this type of research for more than a decade; see supra note 104 and 105. Stager and Arthurs’ landmark book on Canadian lawyers is now almost two decades old and in need of replacement. See Stager & Arthurs, Lawyers in Canada, supra note 87. On the relationship between law and psychiatry see McGillivary, “A moral vacuity,” supra note 89.Google Scholar

171 Other notable Canadian law and economic analyses of issues of legal ethics include Trebilcock & Csorgo, “Multi-Disciplinary Professional Practices,” supra note 142; Trebilcock, “Regulating Legal Competence,” supra note 142; Hadfield, “The Price of Law,” supra note 142; Ronald J. Daniels, “The Law Firm as an Efficient Community” (1991) 37 McGill L.J. 801; and Robert G. Evans & Michael J. Trebilcock, eds., Lawyers and the Consumer Interest: Regulating the Market for Legal Services (Toronto: Butterworths, 1982).Google Scholar

172 See Elman, Bruce P., “Creating a Culture of Professional Responsibility and Ethics: A Leadership Role for Law Schools” (Paper presented at the Eighth Colloquium on the Legal Profession: The Challenges of Leadership, University of Western Ontario, 25 May 2007), online: <http://www.lsuc.on.ca/media/eighth_colloquium_professional_responsibility_ethics.pdf>..>Google Scholar

173 Ibid. at 20.Google Scholar

174 This is an issue that I take up in a forthcoming paper, Adam Dodek, “Theoretical Foundations of Solicitor-Client Privilege” [forthcoming in 2008].Google Scholar