The Power of Perspectives

The Canadian Bar Association

Gavin & Brooke MacKenzie

Conduct becoming

Should referral fees be regulated or prohibited?

By Gavin & Brooke MacKenzie September 15, 2017 15 September 2017

Should referral fees be regulated or prohibited?

 

In 2002, the Law Society of Upper Canada amended its Rules of Professional Conduct to allow lawyers to pay referral fees to other lawyers. The rationale was that referral fees would encourage lawyers to refer work to lawyers better able to serve a client’s interests, reducing the likelihood that the lawyer would accept a retainer to act on a matter that may be beyond his or her ability. Ultimately, it would be a “win-win-win”: the referring lawyer would receive a payment, the referee lawyer would obtain a new client, and the client would be served by a lawyer well-qualified to act.

Conditions were put in place to prevent abuses. The referral had to be made because of the expertise of the referee lawyer. Referral fees could not be paid where the referral was made because of a conflict of interest. The referral fee had to be reasonable and could not increase the total fee charged to the client. The client had to be informed about the arrangement, and consent.

When the Federation of Law Societies developed its Model Code of Professional Conduct, it adopted the Ontario rule on referral fees. Today the Ontario rule is in place in all Canadian common law jurisdictions.

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Conduct becoming

First come, first served: Revisiting the cab rank rule

By Gavin & Brooke MacKenzie June 16, 2017 16 June 2017

First come, first served: Revisiting the cab rank rule

 

Lawyers agree about the importance of competent legal representation for accused persons in criminal matters even when the charges relate to the worst offences imaginable. But do Canadian lawyers have any responsibility to represent unpopular parties in civil cases?

In Britain, barristers are bound by the “cab rank” rule: barristers, like taxis, must accept work on a ‘first-come, first-served’ basis. Barristers must accept matters appropriate for their experience irrespective of the client's identity, the nature of the case, or “any belief or opinion which [they] may have formed as to the character, reputation, cause, conduct, guilt, or innocence of the client”.

Canadian lawyers are not subject to the cab rank rule per se. We are entitled – in criminal and civil cases alike – to decline a retainer because we disagree with a client’s cause or conduct, but our regulators discourage this. 

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Conduct becoming

Public narrative vs. the “whole truth” from the courtroom

By Gavin & Brooke MacKenzie March 15, 2017 15 March 2017

Public narrative vs. the “whole truth” from the courtroom

 

At the time of writing, controversy is stirring at four Canadian universities that invited criminal lawyer Marie Henein to participate in a speaker series. A student wrote an opinion piece condemning the decision to invite Henein on the basis that she was Jian Ghomeshi’s defence counsel in his much-publicized sexual assault trial. The director of a Nova Scotia women’s centre echoed the criticism, stating that by extending this invitation to Henein, the universities were “potentially retraumatizing students… who have experienced sexual violence”.

Lawyers are familiar with the challenges inherent in advocating for an unpopular case – and such challenges are exacerbated in such a high-profile case. It is particularly troubling, however, that these critics attributed victim-blaming beliefs to Henein personally because of her advocacy on behalf of her client, and viewed the potential speech as something to suppress rather than an opportunity for productive discussion. 

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Ethics

Should lawyers have a monopoly over the provision of legal services?

By Gavin & Brooke MacKenzie December 6, 2016 6 December 2016

Should lawyers have a monopoly over the provision of legal services?

 

Is there a good reason to allow non-lawyers to provide legal services?

Lawyers’ education and training is superior. Admission standards are high. We are bound by codes of conduct and must be insured. Lawyers who breach professional duties may be disciplined. Why should anyone with lesser qualifications be inflicted on the public?

The short answer is that lawyers do not and cannot fill the public’s need for legal services. According to the 2009 Ontario Civil Legal Needs Project, lawyers provide advice and representation for only 11.7 per cent of what the study called “justiciable events:” issues relating to consumers, employment, debt, social assistance, housing, disability pension, discrimination, family law, and hospital treatment issues, among many others.

As Ontario bencher Malcolm Mercer has pointed out, lawyers don’t necessarily perceive the extent to which the public’s legal needs are unmet. We tend to see the access to justice problem strictly from our own professional perspective. And as Professor Gillian Hadfield has noted, the problem is aggravated by the fact that the employer, the bank, or the business on the other side the legal issue, does have access to expert legal advice.

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Conduct becoming

No laughing matter

By Gavin & Brooke MacKenzie September 27, 2016 27 September 2016

No laughing matter

 

Gavin: I usually ignore lawyer jokes on the incontestable ground that they’re unfair and insulting. But once in a while, they may have a grain of truth to them.

Brooke: Give me an example.

Gavin: Well, there’s the one about the lawyer and the doctor whose cars collide. The lawyer sees that the doctor is shaken up and offers him a drink from his hip flask. The doctor takes a long drink, some of which he spills on his shirt, and then returns the hip flask to the lawyer, who puts it away. The doctor says, “Aren’t you going to have a drink?”, and the lawyer says, “Oh yes—just as soon as the police leave.”

Brooke: So what qualities attributable to lawyers does that joke exemplify?

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Gavin MacKenzie and Brooke MacKenzie practise together in Toronto as MacKenzie Barristers, with a focus on civil appeals and professional responsibility issues. You can find them at 
www.mackenziebarristers.com. Gavin MacKenzie et Brooke MacKenzie pratiquent ensemble sous la raison sociale MacKenzie Barristers à Toronto. Ils sont spécialisés dans la responsabilité professionnelle et la plaidoirie en appel. On les trouve au www.mackenziebarristers.com.

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