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The Canadian Bar Association

Gavin & Brooke MacKenzie

Conduct becoming

The Panama Papers

By Gavin & Brooke MacKenzie June 23, 2016 23 June 2016

The Panama Papers

At the time of this writing, only a week has passed since the revelation of the largest data cache release in history, 11.5 million documents spanning a 40-year period from the files of the Panamanian law firm Mossack Fonseca. It is early days in this saga, and a lot will have happened by the time you read this. But it is already abundantly clear that the story is a treasure trove of ethical issues for lawyers. Let’s consider three of them briefly.

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Conduct becoming

TV Lawyers: Ethics? What ethics?

By Gavin & Brooke MacKenzie March 10, 2016 10 March 2016

TV Lawyers: Ethics? What ethics?

 

Brooke: Over the holidays I caught up on The Good Wife, which got me thinking about how lawyers are portrayed on television. Although it’s not news that legal dramas are unrealistic, the frequency and degree of modern TV lawyers’ ethical breaches are staggering.

I recently re-watched just one episode of the hit How to Get Away with Murder, and I could barely keep count of the ethical violations. First, Annalise Keating, a criminal defence lawyer and law professor who hires her students to assist in her practice, accepted a client accused of murder because she believed her own husband actually committed the crime.  She buried evidence that implicated her husband even though she needed to link him to the murder to exonerate her client. In a side plot, Keating lied to another client about a plea bargain in order to obtain information from her then withdrew, leaving the vulnerable client unrepresented. Throughout, Keating had an affair with a police officer investigating her cases. Meanwhile, one of her students dated the client accused of murder.

The very premise of another TV drama, Suits, is an ethical violation: the unauthorized practice of law. Suits follows a brilliant young burnout with no law degree or licence to practise who talks his way into an associate position at a New York firm; the series revolves around how he and the partner who hired him struggle to keep his secret. 

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Ethics

Are new calls today really prepared to practise law?

By Gavin & Brooke MacKenzie December 10, 2015 10 December 2015

Are new calls today really prepared to practise law?

Brooke Mackenzie:  What was articling like back in your day?

Gavin Mackenzie: I articled in the Paleozoic era, circa 1975. It was after the time when getting an articling job depended on whether your father was an executive of a corporate client, but before there were on-campus interviews and rules about when you could interview candidates. The firm got my name and address from my law school, and wrote to invite me to come in for a visit. It didn’t have a rotation system, and since I wanted to be a courtroom lawyer I latched on to the two partners in the litigation department, Claude Thomson and John Morin, from whom I learned more about being a lawyer than I learned in three years of law school. After articling for 12 months, I attended the Law Society’s bar admission course for six. The quality of the lectures and seminars was uneven, but if you had good articles and went to the classes you came out ready to practise. Ontario has since shortened the articling term and done away with the bar admission course, though students who go into the Law Practice Program rather than article have four months of in-class skills training. Regardless, I expect that students today aren’t as well prepared to practise as they were in the Paleozoic era.

BM: I imagine you’re right— although your experience likely can’t scale to today’s ­reality of national firms and many more law graduates. I articled in 2012, after ­securing a job through the strictly ­regulated Toronto OCI process in 2010. Much to my delight, I effectively circumvented my firm’s formal rotation system after a litigation partner asked me to assist with a long commercial trial. This trial was the highlight of my articles — attending court every day, researching points of law, preparing witnesses and briefs, and drafting portions of the closing argument. 

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Ethics

Conduct Becoming: A bias for action

By Gavin & Brooke MacKenzie September 14, 2015 14 September 2015

Conduct Becoming: A bias for action

There were many reasons why the United Kingdom ended lawyer independence from government regulation under the Legal Services Act, 2007. As both a representative and a regulatory body for lawyers, the Law Society invited criticism that it protected lawyers’ interests rather than clients’. Response to public complaints was too often untimely and ineffective. Different regulators were responsible for solicitors, barristers, legal executives, and conveyancers, leading to public confusion and inconsistencies in regulatory standards and enforcement.

But the most important reason for the loss was the profession’s resistance to change — specifically, to allowing law firms to adopt mainstream business structures. Proposed innovations such as multidisciplinary practice structures were vilified. The profession’s resistance was considered protectionist, and the government intervened.

In Canada, we have been careful to separate representative and regulatory roles: the Canadian Bar Association and other bodies advance lawyers’ interests, while law societies govern in the public interest. The same regulator governs barristers and solicitors.

We have also been open to at least one form of alternative business structure: law societies in Quebec, Ontario and British Columbia have permitted lawyers to form multidisciplinary practices. Lawyers may be partners with, for instance, patent agents, registered planners, and human resources professionals, provided that lawyers retain control of the firm and non-lawyer practitioners abide by lawyers’ rules of conduct as well as rules applicable to their own professions.

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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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