Ethical Lawyering Reading Summary
Readings Day 1
o Robert K. Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo. J. Legal Ethics 225 at 225254, 264-271
o Julie MacFarlane, “The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative
Study of CFL Cases” (Ottawa: Department of Justice, 2005)
o John Lande, “Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and
Process Control in a New Model of Lawyering,” (2003) 64 Ohio St. L.J. 1316
Vischer article
OLC Scandal
* US department of justice Office of Legal Counsel (OLC) provided “aggressive legal analysis”
facilitating torture if suspected terrorists at Abu Ghraib.
* Caused an outrage among American public, described as a cover for inhuman and degrading treatment.
* Some legal professionals countered this, stating that there is nothing wrong with exploring the
boundaries of what is permissible by law, and in fact, lawyers are entitled to do so, being “amoral
technicians”, maximizing the legal rights of the client.
o The OLC “provided reasonable legal advice and no more” (pg. 3), and their moral stance is irrelevant
* One of the principle writers of the document, John Woo defended it by saying it was a merely “an
abstract analysis of the meaning of a treaty and a statute” (pg 4)
* Author states that in order to face circumstances such as this we must talk freely about morality as
lawyers, even if our moral claims are based solely on personal convictions
* Not exploring the moral issues means that they are not brought to the attention of the client, which is
problematic.
* In cases where there is a significant moral gray area, lawyers are in danger of becoming “tools for
facilitating morally problematic conduct” (pg 5)
* Memorandum written by Jay s. Bybee and John Woo allowed government officials to push the
boundaries of what is acceptable under current torture legislation
* Most importantly is the wording of the statue that pain and suffering must be “severe”, which was taken
to mean intolerable.
o Compared the meaning of “severe in this provision to other statutes with similar wording,
specifically statutes defining medical emergencies to provide health benefits.
o This was used to expand the meaning of “severe” as meaning pain tha places the individual 1) in
serious jeopardy, 2) leads to serous impairment of bodily functions 3) serious dysfunction of any bodily part
or organ. Severe pain is equated with these 3 conditions
o Purely mental suffering must last for months or years to constitute torture as well, lengthy and
stressful interrogations by the state would not fit into the definition of torture
* Concluded by stating that even if the conduct of gov officials were to constitute torture, any statute that
did not permit such activity encroached on the presidential power to conduct a military campaign, and is
essential to national security
* This view of torture aligns with the theory of utilitarian morality (availability of the necessity defence)
o Justifying torture to potentially save lives
* Essentially, the government asked its lawyers “How far can we go?” and the lawyers responded “very far
indeed” (pg 12)
* Lawyers were aware of the context in which the memorandum was being requested and the potential
implications of such a document.
* The OLC lawyers passed on an opportunity to engage in a moral dialogue with the administration which
at a minimum “ could have given pause to those who took the green light received by the OLC as support for
a war footing premised on pushing the boundaries, not on vigilant compliance with established norms”( pg.
13)
* A lawyers interpretive judgement of a piece of legislation will likely be laden with personal moral
beliefs, even if it is not expressly stated in the analysis.
o Bybee should have raised his own moral perspective in the memo, and asking the officials if they
shared his moral presumptions, bringing the moral presumptions upon which the legal analysis is based to the
surface
o It is likely that Bybee had to put his own moral position aside to resolve indeterminate points of law
in his client’s favour.
Enron case
* Enron’s lawyers failed to provide a check on the self aggrandizing transgressions of enron’s
management. They complied with the CEO’s request that they not explore the accountant’s treatment of
transactions before certifying their validity.
* Essentially they were the “‘but-for’ cause of the demise because the transactions at issue “could not have
closed in their original form” without the approval of lawyers and other professionals” (pg. 17)
* The main cause of the problem was the fact that the separation between lawyer and client no longer
existed in this case
o The lawyers adopted the moral position of their clients, instead of acting as a check on their client’s
potential lapse in moral judgment
o Difficult ot distinguish between client and colleague for several factors, including close ties between
the business and the firm (Vinson and Elkins)”when the outside lawyers sat down to talk to Enron, they saw
themselves staring back” (pg 18.)
o Lawyers were also lulled into a false sense of complacency due to the similar and uncontroversial
interests of the directors, managers and shareholders, which was essentially profit maximization, saw
nothing wrong with the unbounded pursuit of that goal.
o Third problem: “...the competitive environment among professionals served to intensify the allure of
acquiescence to the client’s perspective of unchecked optimism” (p. 18)
* If the lawyers had taken the perspective of their clients as a “good and law abiding” entity, it would have
led to the lawyers fulfilling their responsibility of brining their clients behaviour into conformity with the
law, while still maximizing their benefits under the law.
* Instead the notion that profit trumps principle prevailed, this was achieved through unlawful
manipulation of business transactions
* They adopted the moral perspective of their client without engaging in a dialogue to confirm, or more
importantly challenge, this perception.
* Lawyers inevitably fall back on personal experience when making professional decisions, and the
meaning derived from client interaction “...is mad possible only by the view afforded through the lens of
personal experience” (pg. 21)
* “ the key for lawyers is to have the moral dialogue before presuming the moral stance that should drive
the legal strategy, and even after achieving consensus, to continue raising the moral ramifications of legal
advice as they arise.
o This will at least prevent lawyer and client from deluding themselves into ignoring the inherently
moral aspect of their presumptions
Catholic church case
* The American legal system is notoriously adversarial, more so than any other western democracy’s legal
system.
* Widespread rumours of sexual abuse within the catholic church
* Church’s lawyers exacerbated the fallout from these sexual abuse cases by taking and overly aggressive
stance to the victims
* The bishops essentially adopted “...the presumptions and prejudices of their legal counsel in their effort
to minimize the impact of the allegations “ pg 24
* Lawyers for the church raised inappropriate defences that essentially blamed the victim (such as
contributory negligence and voluntary assumption of risk
* Forced plaintiffs who wished to remain anonymous to reveal themselves if they wanted to bring an
action, even filed countersuits against victim’s parents for negligence for entrusting their children to priests.
* Instructed their clients not to meet with the victims, or to apologize, as this would be seen as an
admittance of guilt
* When victims settled, they were often forced to sign confidentiality agreements, which stifled their
ability to talk about their experiences
* As the scandal went on, the litigation strategy became increasingly aggressive
* Lawyers for the church emphasized that “their ethical obligation is to their client, not some abstract
moral standard” ( pg. 26)
o But were they acting for the best interest of their client, or were they trying to maintain the
professions adversarial ideals?
* Lawyers only considered how their actions would impact the outcome of the settlement, and not how the
church would be perceived once the litigation was over
* “moral self awareness need not threaten the rightful pre-eminence of the client or her cause, but rather
can serve to facilitate clearer recognition by the attorney of the impact that moral perspective exerts on her
professional decision making , whether acknowledged or not” (p. 30)
* Whether or not the bishops would have embraced the adversarial mindset of the lawyers, there should
have been a dialogue that explored this tactic, which is not just legal, but moral as well
Moral dialogue and the articulation of perspective
* Model Code suggests that lawyers point out factors which may lead to decisions that are not only legally
permissible but morally just as well
* Morally engaged visions of lawyering require that the moral norms be publicly held, or act least publicly
accessible
o The problem with that is that it assumes that only publicly held norms influence the lawyer’s choices.
o It also assumes that “public” norms are accessible to the client, when a wide range are not
o Many moral claims will not resonate with the client
* Ex: a brightline position against torture would not have been a publicly held view, as most people would
agree that it might be necessary of the lives of thousands depend on it
* “at base, a blanket opposition to torture will fall back on naked moral claim- i.e. we do not torture
prisoners because it is wrong” (p.34)
* “common morality” a less demanding standard than universal accessibility
* Essentially, the profession must become open to the attorney’s own moral view, whatever its source, as
part of the dialogue with the client
* The goal of moral engagement is not only for future decision making, but past and present explaining
* How can moral perspective be articulated/communicated?
o Must be done in a way that resonates with the client, in terms suitable for them
o Lawyer should speak from within themselves and leave space for the client to respond
o Make effort to find common ground
o Should be mutual, respectful and honest
o Not in an effort to sway, but to inform
* “Invoking moral concepts will trigger client reflection more effectively than the most sophisticated legal
analysis”(p. 37)
* Client may or may not agree with moral stance, may or may not be swayed by it, but the importance lies
in the opportunity to assess moral presumptions
MacFarlane article
* Collaborative family lawyering
* Problem with “uncivil” civil litigation practices, such as abuse of discover processes to escalate conflict
and cost, pressure to compete rather than cooperate etc
* Crisis of confidence3 in the legal system is most apparent in family law practices, where adversarial
tactics can have devastating consequences in cases where a relationship between the litigants should be
maintained
* General dissatisfaction among family lawyers has lead to an increase in mediation training
Background to development of CFL
* “settlement counsel” work alongside litigation counsel, have expertise in negotiation of settlements
* “the development of specialist settlement expertise had largely been limited to the work of one or two
individuals rather than the whole firm, and has failed to affect the broader culture. Settlement counsel is
usually only retained on very large cases where it is possible to fund counsel for both settlement and
litigation” ( p 44)
* Concept of CL (collaborative lawyering) extends this idea of settlement only counsel into a settlement
only strategy adopted by all the lawyers working on a case
* Advice is only non-litigious
* CFL retainer agreements state that the lawyer must withdrawn if the case is litigated
Principle variations in CFL practice
* 3 ideal types
o 1) the traditional legal advisor who commits to cooperation
o Offer initial and ongoing legal advise, undertake case-specific research as necessary and ensure that
the legal options are clear to the client throughout the process
o Legal advice is still a critical part of their professional role
o Essentially fit the CFL process into and around the existing norms of client advocacy and
representation
o 2) the lawyer as friend and healer
o See themselves as playing a therapeutic role, seek to provide a supportive and healing environment,
often present divorce as a journey of personal growth for example
o Often coach their clients on effective negotiation
o Unlikely to do much legal research specific to a case , provides only “general” legal advise
o Believes it is counter-productive to emphasize legal rights advice, which is less constructive than
working on therapeutic dimensions of the divorce
o Confident and consistent expression of these values is rare, but glimpses were seen in a number of
lawyers in the study*
o 3) the team player
o Concerned with the promotion of the integrity of the CFL process over any other consideration that
may factor into positive outcomes (for example maximising client satisfaction)
o More focused on the process than on substantive issues and outcomes
o This commitment to process can lead team players to restrict their communication with their clients
to the four-ways, to ensure transparency, and that legal advice is given in front of both parties
o Emphasis on cooperation and may even co-strategize with opposing counsel, may even see their
primary relationship to be with the opposing lawyer and not their client
Ethical Issues in Collaborative lawyering process
* CFL lawyers are often in new situations for which there are no precedents and must rely on their
personal discretion when approaching ethical issues.
* “ethical” dilemmas for this study were defined as decisions over competing courses of action
* The study found little explicit acknowledgement of ethical issues among CFL lawyers
* Sensitivity to ethical issues was low
Informed consent
* Central ethical issue is quality and depth of informed consent to the procedural and substantive values of
CFL (ex: understanding of the implications of the disqualification agreement)
* While clients are explained to a certain extent the implications of choosing a collaborative lawyer,
whether or not they are truly understood is questionable (very abstract definitions)
* While many argue that they provide more informed consent than traditional lawyers, this should not be
the primary concern, which should be whether they are meeting their own standards for integrity of service
* Since it is different from traditional legal practice, disclosure is that much more important
Case screening including safety issues
* Many CFL lawyers have limited their practice to only CL
* Some have developed client screening process that takes into account reasonableness and openness, and
will turn away those who they think are unsuited to the process, however some don’t
* Concern about vulnerable clients (fear/intimidation) resulting from domestic abuse, there is currently no
screening process for domestic violence, although most lawyers when asked said that domestic violence
cases are not suitable for CFL
o Mostly rely on instinct and basic questioning to preclude these clients
o But it is not simply “if there is domestic violence do not use CFL”, there is a lot more to consider
o Initial and more probing questions need to address whether the client feels intimidated and unable to
freely negotiate
o Sophisticated and detailed screening must be developed
* Basic level of trust is imperative for CFL to be successful
o A certain level of wariness is natural, but a long history of mistrust and deceits, especially in
relationships where one partner exercised sole financial control can heighten a sense of betrayal
* Willingness to participate in 4-way discussions
* Suitability of CFL in high-conflict cases, high levels of tension and emotionality are not conducive to the
process
o Without specialized training, most lawyers are ill-equipped to handle high-conflict cases
o Possibility of working with coaches in high-conflict cases, and also to help with diagnostic
evaluation
Lawyer-client priviledge
* In CFL agreements, clients relinquish right to discovery
* Different approaches: 1) parties and attorneys agree to complete, full, honest and open disclosure of all
relevant info, requested or not
o 2) full disclosure with respect to nature extent and value of and all developments affecting income
assets and liabilities
o 3) all four parties are to deal with each other in good faith and produce all relevant info reasonably
required (assets, income and debts)
Pressure to stay in the collaborative process
* Significant amounts of time, money, and emotional energy are invested in to the process, can create a
sort of “entrapment” that prevents withdrawal from the process
* Lawyers themselves are also significantly invested in the process, makes it difficult for them to be
objective about whether or not the process is actually working
Lawyer-Lawyer Relationships
* some clients noted feeling somewhat uncomfortable with the closeness of their lawyer to the lawyer of
the other side or even to their spouse
* Clients should not feel “ganged up on” by the lawyers
Lande Article
* Can CL lawyers zealously advocate for their clients if they are committed to cooperation with the other
side?
* This article argues that “CL is not inherently inconsistent with accepted doctrine and practice of Zealous
advocacy” (p. 58)
* ABA model code of professional responsibility canon 7: “lawyer should represent a client zealously
within the bounds of the law” (p.58)
* Some lawyers take this to mean that a duty of zealous advocacy means taking every possible action to
benefit their clients
o However other rules do not advocate this position (ex: rule 1.3 “ lawyer is not bound ...to press for
every advantage that might be realized for a client”)
o Duty of diligence requires lawyers to overcome certain factors (such as workload pressures,
procrastination, personal inconvenience, opposition) that are involved in representation
o Rule 1.2 requires that lawyers consult their clients as to the means by which they will pursue their
clients objectives, different clients will have different preferences about the level of zeal
o Zealous advocating in negotiation can even harm a clients interests, by initiating retaliatory actions
o Most lawyers prefer to act reasonably than to “play hardball”
* CL does not differ from traditional lawyering in that it doesn’t require that lawyers take extreme
negotiation positions
* Some variations of CL however, do not comply with professional norms for zealous advocacy, some CL
lawyers have decided to take a more neutral stance
Day 2 Readings for ELGC
Professional Legal Ethics Pg.60-80
 [Note, very theoretical reading! Nothing to do with lawyers directly.]
 [If you don’t have time, but still want to know the gist of everything it was saying, read the
conclusion on pg. 79-80. That basically covers the entire article.]
 Deontological Ethics Pg. 61-65
 There are universal rules/principles/rights that prohibit ‘bad’ behaviour.
 There are universal rules/principles/rights that require ‘good’ behaviour.
 Does not take into account the consequences of actions. Something is always right, or
something is always wrong, depending on the rule.
 Author believes that Gewirth’s principle of generic consistency is the best attempt at a ruledeontological ethical theory Pg. 64
1. “Act in accord with the generic rights of your recipients as well as yourself.”
2. Individuals only qualify as moral agents if they can control their own actions and
pursue their own purposes.
 Consequentialism Pg. 65-69
 Right behaviour is that which ensures the greatest amount of good
 Egoism Pg. 66
1. Moral agents should pursue self-happiness
2. (Very problematic, obviously)
 Utilitarianism Pg. 67
1. Moral actors must strive to increase the general level of social happiness
2. (The greatest good for the most people)
3. Also known as act-utilitarianism, in terms of deciding what act maximizes social utility
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on a case-by-case basis, irrespective of its potential long-term effect on utility.
 Rule-Utilitarianism Pg. 69
1. Rule-utilitarians follow rules thought likely to increase overall utility over the long run,
even if they decrease utility in particular cases.
Virtue Ethics Pg. 69
 ‘To be or to do.’
 Focuses on character, rather than action.
 See ethics as largely a matter of the presence or absence of fixed character traits, dispositions
or habits of behaviour which are regarded as morally worthy.
Feminism Pg. 72
 What is morally right takes subjective qualities into account (female)
Ethic of Care Pg. 73
 Includes everything done to maintain, continue and repair the world so that we can live in it as
well as possible.
Moral Realism Pg. 74
 Moral judgements are based on foundations that are both unquestionable and universally
applicable.
Postmodernism Pg. 74; Pg. 76
 Postmodernists urge individuals to recognize their own moral responsibility for their actions
and look inwards to their own moral conscience rather than outwards to external standards of
morality.
Ethics of Alterity Pg. 78
 Dialogical ethics emerge from the actual lived relationships of corporeal moral agents with
concrete others.
 One cannot separate the self from others because individuals only come to selfhood through
alterity. We only acquire self-consciousness through our engagement with ‘the Other’.
Summary/Conclusion Pg. 79-80
 [I highly recommend you do not try to read the entire article. The summary is sufficient, as the
entire article will probably put you to sleep a couple times.]
Rules of Professional Conduct Online
 [We were only asked to read a couple provisions.]
 2.01 – Quality of service
 2.02(1.1) – When client is an organization
 The client is the organization
 The organization has a legal personality distinct from its shareholders, officers, directors, and
employees.
 The interests of the organization are to be served and protected.
 Lawyer should ensure that the person giving instructions for the organization is actually
authorized to do so.
 Lawyer may also accept a joint retainer and act for a person associated with the organization,
but conflicts of interest must be addressed.
 2.02(5.1) – Dishonesty, fraud when client is an organization
 When employed/retained lawyer knows the organization intends to act dishonestly,
fraudulently, criminally, or illegally, in addition to his/her obligations under subrule (5), the
lawyer must:
1. Advise the person giving instruction that the act is ‘wrong’.
2. If necessary (where the person giving instruction refuses to abandon the act) advise the chief legal
officer and/or the chief executive officer that the act is ‘wrong’.
3. If necessary (where the c.l.o. and/or the c.e.o. refuses to abandon the act) progressively advise the
next higher persons or groups, including the board of directors, the board of trustees, or the
appropriate committee of the board that the act is ‘wrong’.
4. If the organization, despite the lawyer's advice, intends to pursue the proposed course of conduct,
withdraw from acting in the matter in accordance with rule 2.09.
 2.02(5.2) – Dishonesty, fraud when client is in an organization (After illegal act)
 When employed/retained lawyer knows the organization has already acted dishonestly,
fraudulently, criminally, or illegally, in addition to his/her obligations under subrul (5), the
lawyer must:
1. Advise the person from whom the lawyer takes instructions and the chief legal officer, or both the
chief legal officer and the chief executive officer, that the conduct was ‘wrong’ and should be
stopped.
2. If necessary (where the c.l.o. and/or the c.e.o. refuses to abandon the act) progressively advise the
next higher persons or groups, including the board of directors, the board of trustees, or the
appropriate committee of the board that the act is ‘wrong’.
3. If the organization, despite the lawyer's advice, continues with the wrongful conduct, withdraw from
acting in the matter in accordance with rule 2.09.
 Includes acts of omission or commission.
 Lawyers are to encourage organizations to comply with the law and to advise that it is
in the organizations' and the public's interest that organizations do not violate the law.
 2.03 – Confidentiality
 A lawyer at all times shall hold in strict confidence all information concerning the business
and affairs of the client acquired in the course of the professional relationship and shall not
divulge any such information unless expressly or impliedly authorized by the client or required
by law to do so.
 Distinguished from the evidentiary rule of lawyer and client privilege concerning oral or
documentary communications passing between the client and the lawyer.
 Lawyer has a duty of confidentiality to every client without exception and whether or not the
client is a continuing or casual client. The duty survives the professional relationship and
continues indefinitely after the lawyer has ceased to act for the client, whether or not
differences have arisen between them.
 A lawyer should avoid indiscreet conversations, even with the lawyer's spouse or family,
about a client's affairs and should shun any gossip about such things even though the client is
not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or
information about the client's business or affairs that is overheard or recounted to the lawyer.
However, there are some very exceptional situations identified in the following subrules where disclosure
without the client's permission might be warranted because the lawyer is satisfied that truly serious harm of
the types identified is imminent and cannot otherwise be prevented. These situations will be extremely rare,
and, even in these situations, the lawyer should not disclose more information than is required. Client
Confidences and Human Dignity Pg. 85-99
 [Long article. Lots of tidbits of information, but it’s mostly a discussion of the pros and cons of two
conflicting viewpoints on confidentiality.]
 The purpose of confidentiality is to permit clients to “tell all” to their lawyers without fear that the
lawyers will disclose unpleasant facts. Pg. 87
 The reason for affording clients this protection is to allow their lawyers to represent them
effectively, which would be presumably impossible if lawyers did not know all the facts.
 Protectionist view – Want maximum protection of client confidences
 Civil libertarians view their client as the powerless individual criminal defendant confronting
the might of the state, relying upon the lawyer as the only help s/he will receive.
 Take away the right of confidentiality in the name of social utility and you open the way to
totalitarianism.
 Restrictionist view – Want restrictions on the duty of confidentiality
 This group views the ‘evil client’ as the powerful corporation that uses its lawyers to create a
“zone of silence” around dubious activities.
 Taking away some confidentiality would allow justice to be served against such clients.
 Current Code rule allows a lawer to reveal confidences to prevent any future crime of a client, not just
a crime “likely to result in imminent death or substantial bodily harm.” Pg. 89
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Lawyer’s Duty of Confidentiality Pg. 89
 The issue of lawyer-client confidentiality is not whether it should exist but about its limits.
 Justification for the duty of confidentiality:
 The lawyer is working for the client
 Problematic for two reasons:
1. Does not distinguish lawyers from other employees
2. Does not mean that the lawyer cedes to the client 100% of his/her moral
autonomy.
 Attorney-client privilege (principle of evidence) Pg. 90
 The communications relevant to legal advice made in confidence by the client
are at his/her instance permanently protected from disclosure by himself or by
the legal advisor except the protection be waived.
 Pertains only to eliciting information at trial. The privilege says that client
confidences revealed by an attorney may not be used as evidence; it does not
tell the attorney not to reveal them.
 Whose privilege is the privilege? Pg. 91
 Originally, the attorney. It was designed to protect a gentleman of
honour from being forced to compromise his integrity.
 McCormick’s basis for the privilege
 Full disclosure is promoted if the client knows what he tells his
lawyer cannot, over his objection, be extorted from the lawyer’s
lips.
 Though the privilege belongs to the client, its policy is intended for the
benefit of justice, not the client.
 Bentham’s Argument: What would be the result of eliminating the privilege?
Pg. 91
 “The privilege can do a guilty no legitimate good, and abolishing it can
do an innocent defendant no illegitimate harm; therefore it serves no
purpose and should not exist.”
 On utilitarian grounds, the Benthamic argument appears to triumph.
 Argument from a Rights Perspective Pg. 93
 Human dignity requires that, if a person is accused of a crime but denies
his/her guilt, that denial should be assumed to be in good faith until
proven otherwise.
 Human dignity requires that the defendant have a capable advocate.
 5th Amendment (U.S.): Accused has a right against self-incrimination.
 The right to counsel and the right against self-incrimination are both
grounded in respect for human dignity.
 Donagan’s argument Pg. 94:
 The real reason for the right (to the privilege/confidentiality and
against self-incrimination) is to prevent governmental abuse in
religious or political views.
 Prophylactic against the possibility that in some bleak future
circumstances our society will criminalize the holding of
dissident beliefs.
 Author Pg. 95:
 Human dignity requires that criminal defendants have a right
against self-incrimination and a right to a zealous defence
lawyer; and it is wrong to force these to be traded off against
each other.
 Crucial difference in the case of client perjury: The right against
self-incrimination is a right to keep silent, not a right to lie.
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The moral basis of confidentiality does not extend to protecting
perjury.
 Duty of confidentiality is broader than the attorney-client privilege.
 Duty commands a lawyer to keep his/her client confidences. Privilege
merely states that these confidences cannot be used as evidence.
 Duty involves information other than the client’s confidences. “Courts
have held that any information received by the attorney in a professional
capacity is subject to the duty.”
 Imposing a generally recognized and legally sanctioned duty of
confidentiality on lawyers allows them to proceed to prepare cases
without fearing that in so doing they will be forced to compromise their
client’s interests.
[Overall, author is saying that the duty of confidentiality is important and is based on a human right
against self-incrimination and the right to a zealous advocate]
Smith v. Jones [1999] SCC Pg. 100-117
 Appeal to disregard ordering a psychiatrist to disclose his report to the Crown dismissed.
 Major J Dissent:
 (Agree that the confidentiality of the solicitor-client privilege must, in exceptional
circumstances of public safety, yield to the public good.)
 Differs in the restriction on the scope of disclosure.
 A limited exception which does not include conscriptive evidence against the accused
would address the immediate concern fore public safety in this appeal while respecting
the importance of this privilege
 Overruling confidentiality (as was ruled) has the effect of discouraging those who truly need
help from seeking it.
 This dissent relates to a limited exception to the solicitor-client privilege created by these
facts, and does not extinguish it. It pertains only to the prevention of imminent perils and the
ability of professionals to warn the police and potential victims of dangers in the manner
outlined.
 Cory J Majority:
 The solicitor-client privilege must be set aside when public safety is involved and death or
serious bodily harm is imminent.
 What circumstances and factors should be considered?
 The privilege of solicitor-client confidentiality is subject to clearly defined exceptions
1. The public safety exception
 Solosky case – Inmates’ privilege must yield when the safety of
members of the institution is at risk.
 When the safety of the public is at risk, the solicitor-client privilege may
be set aside.
 Disclosure to prevent a crime
 Three factors are to be considered:
1. Is there a clear risk to an identifiable group of persons? Pg. 111
1. Clarity
i. All the surrounding circumstances will have to be taken into consideration in every
case
2. Is there a risk of serious bodily harm or death? Pg. 112
1. The threat must be to occasion serious bodily harm or death.
2. (Psychological harm is included as per R v. McCraw)
3. Is the danger imminent? Pg. 112
1. Nature of the threat must be such that it creates a sense of urgency.
2. Must be defined in context.
 Summary Pg. 112
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Solicitor-client privilege should only be set aside in situation where the facts
raise real concerns that an identifiable individual or group is in imminent
danger of death or serious bodily harm.
 Extent of disclosure should generally be limited as much as possible.
[Smith v. Jones sums up that solicitor-client privilege can be set aside in some circumstances;
however the disclosure must be limited as much as possible.]
Day 3 Readings Summary
Global Legal Pluralism
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Pluralism starts from premise that people belong to or are affiliated with multiple groups and
understand themselves to be bound by the norms of these multiple groups
Early on legal pluralism was discussed in terms of a hierarchical model of one legal system
dominating the other, however this was switched to looking at them as semiautonomous, operating
within framework of other legal fields but not entirely governed by them
 Interaction between legal systems is bidirectional and includes nonofficial normative ordering
systems
Social norms theory emphasizes processes whereby norms are internalized through guilt, selfbereavement, a sense of duty, and a desire for esteem
 Process of international norm development over past 15 years
Conceive a legal system as both autonomous and permeable: outside norms affect the system but do
not dominate it fully
Legal pluralists have observed ways in which state law and other normative orders mutually
constitute each other
 Works both when looking at internal non-state law and external interactions
Pluralism offers possibilities for thinking about spaces of resistance to state law – looks at places
where state law does not penetrate or penetrates only partially and where alternative forms of ordering
persist to provide opportunities for resistance
An emphasis on social norms allows us to more readily see how it is that non-state legal norms can
have significant impact in the world since if a statement of norms is internalized by the population
that statement will have important binding force often even more so than a formal law backed by state
sanction
There are differences however among forms of ordering given that some legal forms have coercive
state power behind them and some do not as well as disparities in political and economic power
Exploring Criminal Justice and the Aboriginal Healing Program




Relational lens: the example of Western scientists studying a plant by looking at its roots, naming the
different parts etc.; Aboriginal scientist would look at the plant in relation to the meadow it is found in
– how does it hold the soil, what types of birds/insects feed off of it, etc.
 To Aboriginals, all things acted within complex webs of relationships
Define crimes differently, as events which have immediate and enduring impacts on every victim's
ability to maintain - or develop – healthy relationships
Our system tends to focus on the act alone – “punishment must fit the crime”
 Deals with offenders as individuals and believes that by punishing them for their acts, these
people will make better choices the next time
In aboriginal approaches, the act is seen primarily as a signal of disharmonies within the offender's
relational life, disharmonies which must be addressed if there is any hope of preventing further
criminal behavior
 Begins with proposition that the tide of dysfunctional relations around individuals is too
powerful to resist; in order to make progress, all the relationships must be brought into the
process so everyone can make better choice together
 Justice involves not only deterrence and community protection but also three relational goals:
(1) having offenders come to understand, on an emotional level, the relational infections which their
crimes have created in others;
(2) examining the relational disharmonies in the offender's life which spawned the crime, and working
towards different ways of relating so as to reduce the likelihood of its repetition; and
(3) searching for ways to move both parties out of the relational disfigurement that has bound them
together from the moment of the crime
 Each and every crime establishes an immediate, intense and unique relationship between the victim
and the offender , an imprisoning relationship which will seldom alter of its own accord
 Victim-offender relationship
 Relationship which one party imposes on another
 Instant change in the relationship the victim believed they had
 Crime-based relationships are always premised on violence or threat of violence
 Relationships established by crime are frozen at the moment of violation
 Parties almost have no idea who they are linked to
 Victims often have questions to ask that only the offender could answer such as who are you, why
me, is there any chance he’ll come after me again
 Victim’s need to make the offender understand what they have done
 Clear categories of offenders where such encounters would be inappropriate or dangerous (ex.
psychopaths) – but these cases are very rare
 Also categories of crime where it would not be appropriate to bring together the offender and victim
until separate healing processes have been attempted
 Ex. cases where the abuse has been ongoing however using surrogate victims has been helpful
in the past in the offender’s understanding
 One of the keys for both parties in victim-offender exploration thus seems to involve getting to the
point where they recognize that they are capable of feeling the same things
 Accountability within the relational paradigm, then, does not seem to come from the same place as
accountability in the criminal justice system. It does not rely on the imposition of proportional
penalties regardless of offender understanding or remorse. In the relational world, if accountability is
attained, it is emotional accountability premised on deep and often life-changing remorse, itself
marking the achievement of a healthy connection between victim and offender
 Look at “how can we change the ways in which they relate?”
 Need for non-blaming justice – emphasizes that people are more than what they have done or
what has been done to them
 The goal of healing is to achieve relationships entirely structured on values like respect, trust, sharing,
caring, courage, humility and love
 Focus on four goals:
(1) convincing people that they are not alone in all of the discouraging, negative things they presently
feel;
(2) giving people the faith that they too can ultimately move into relationships centered on positive
values like trust, respect, openness and the like;
(3) giving people the experience of operating within relationships centered upon those values; and
(4) giving the group within which the person lives the experience of, and the skills needed for,
turning the group relationships in healthier directions
 Previous offenders who are now able to render assistance are valuable to the healing process for two
main reasons: (1) quicker to see how offenders are minimizing their crimes; (2) they know how hard
it is to acknowledge that there was no justification for the pain you brought to others
 Their presence shows that it is possible to put the crime behind you in the eyes of the
community
 What is essential is that the circle be primarily comprised of people who have been there in their own
lives
 Roles of professionals in the healing process involve them creating and regulating a respectful

process, helping the people confront and discharge the emotions involved, guiding them into using
their knowledge on the relational process
Spiritual ceremonies allow for these people to be reminded of their worth and contribution
Five Habits for Cross-Cultural Lawyering
Culture and the role it plays in lawyers’ work
 To meet the challenges of cross-cultural representation, lawyers need to develop awareness,
knowledge and skills that enhance the lawyers’ and clients’ ability to form meaningful relationships
and to communicate accurately
 May interfere with lawyers’ and clients’ capacities to understand one another’s goals,
behaviours and communications
 Cultural differences may result in:
 Lawyers and client to misperceive body language and judge each other incorrectly
 Ex. Shaking hands, eye contact, etc.
 Lawyers developing case strategies that fail to appreciate the significant cultural norms of the
client
 Ex. Chinese woman not wanting to take a plea bargain due to the shame it would bring
her family; she faced possibility of 25 years in jail instead
 Lawyers misjudging a client or to provide differential representation based on stereotype or
bias
 Mostly this racial/cultural hostility is done unconsciously
 A competent cross-cultural lawyer should study the specific culture and language of the client group
that the lawyer represents (use culture-general knowledge and skills)
 Areas of difference: communication, values, categorization (seeing different information as
relevant), time and space orientations, and distinction between individual and collective
cultures (chart on page 11)
 Individualistic culture – people are raised to have individual goals and praised for
achieving these goals (ex. United States’ culture)
 Collective culture – people are raised to think of the group, to work for the betterment
of the group, and to integrate individual and group goals (ex. above of the Chinese
woman)
 It is important for the lawyer to be aware of their own background and the similarities and
differences between them and their client
Principles and Habits for Cross-Cultural Lawyering
 Based on the belief that if lawyers can identify assumptions that hamper their ability to lawyer based
on fact, lawyers would, on a day-to-day basis, achieve better cross-cultural communication and
understanding in their lawyering
 “The Habits” are based on four core principles:
1. Lawyering is often cross-cultural – cross-cultural skills will allow lawyers to increase client trust,
better communicate, and enhance problem-solving skills on behalf of clients
2. Refraining from judgments and being open to difference is an essential skill for effective crosscultural lawyers
3. Remaining present with the individual client, ever respecting her dignity, voice, and story allows
lawyers to avoid stereotyping
4. Knowing ourselves as cultural beings is key to being able to identify when we are using biases or
stereotypes, when we are misinterpreting or filling in, and why we are judging people who are
different
 Five Habits:
 Habits 1 & 2 provide the lawyer with a framework for analyzing the attorney-client
interaction, hidden issues that may exist in a case, and the cross-cultural challenges that may
arise in the client-legal system interaction

Habit 3 allows the lawyer to enter the cultural imagination of another and develop alternative
explanations for client behavior
 Habit 4 focuses on communicating more effectively across cultures and identifying signs of
communication problems
 Habit 5 encourages reflecting on the norms, biases, and stereotypes that may interfere with
quality lawyering and finding ways to overcome these.
1. Degrees of Separation and Connection
1. First part asks the lawyer to brainstorm similarities and differences between them and the
client; second part asks the lawyer to assess the significance of these similarities and
differences
2. By identifying differences, we make conscious the potential cultural misunderstandings that
may occur; by identifying similarities, we make conscious the connections we have with the
client
i. Lawyer must be careful not to interpret the clients’ words or actions within the
lawyer’s cultural lens but instead to try to understand the behaviour, words and body
language within the context of the culture within which it occurs
2. The Three Rings
1. Asks lawyer to identify and analyze the similarities and differences of two different dyads –
client-law and lawyer-law
i. Client-law and legal maker-law (ex. judges, jury, probation officer): identify cultural
norms and values implicit in the law that will be applied to the client
2. Requires lawyer to link the analysis from the first part to the lawyer-client analysis in habit 1
3. How cultural similarities and differences in these three different rings will influence the
outcome of the case
3. Parallel Universes
1. Invites the lawyer to explore multiple alternative interpretations to client’s behaviour other
than their own assumed explanations
Judges in a Multicultural Society

3 challenges in a multicultural nation and the role of judges:
 Inter-group tension: tension from discrimination or violence against minority groups on the
basis of their “different” practices
1. Members of all groups must be accorded equal protection
2. Views of the majority cannot be used to discriminate against minority groups, even if moral opinion is
against the views/practices of the group
 Decision-making: danger that divergent moralities and values of different cultural groups will
make it difficult to find answers to social problems facing the nation
1. Courts are seen as ways of compensating for the weakness of electoral decision-making and
contributing to deliberative democracy by providing a forum where citizens can test laws for
conformity to the fundamental values upon which society is premised
 National identity: nation that sees itself as an mix of cultures will find itself without its own
identity
1. Courts provide a forum to which citizens may resort when they feel that the
fundamental legal premises upon which our nation is founded have been
undermined, and in which the ongoing democratic dialogue between different
groups and interests may be furthered
 Community’s constitutional morality consists of the moral norms and convictions to which the
community has committed itself and has received legal recognition
 Moral opinions held by different groups in society may conflict, so the challenge is to find
ways of resolving these conflicts while preserving the basic commitment of members of
society to the underlying constitutional morality
 The interplay between moral opinions and constitutional morality is where you see the


dynamic through which different cultural and religious beliefs find accommodation within the
legal system of a multicultural society
Difficulties in the equality ideal as set out in the Charter:
 Discrimination is often linked to deeply held moral values
 On a legal level the conflict (between moral opinion and ideal) that may arise from this
is usually resolved in favour of tenet of non-discrimination
 Discriminatory attitudes are deeply routed in our collective consciousness
 Identification with those who are like and rejection of those who are different
 These attitudes can be altered through reflection and an understanding of the basic
values that infuse the social contract between the citizen and the state
 Equality claims can be easily dismissed through the technique of formalism
 Canadian courts post-Charter have adopted a substantive approach to equality, which
looks at how the denial in fact relates to the actual situation of the person alleging
discrimination
How judges can best discharge their role in a multicultural society
 Maintain their independence from the elected and executive branches of government
 Subjective aspect: individual judges must strive to decide the case before them based
on its merits; must not be influenced by concerns that the decision may be unpopular
 Objective aspect: institutional conditions of judicial appointment and service
 Impartiality presents a challenge since each judge comes from a particular ethnic and cultural
group and brings with them a set of values and preconceptions
 Judges should consciously strive to understand themselves and how their particular
background and experience may affect their decision-making
 Judges must carry the ethic of equality into what they say and do - ensure that all who
come before them are treated with equal dignity and respect
 Must strive to understand the lived reality of the person whose culture may differ from
theirs – understand social context of events they are called upon to evaluate
 Must practice conscious objectivity – put themselves in the person’s position whom
they are judging and ask how things would appear from their perspective
 Practice thoughtful reflection – distinguish between moral opinions and deeper
constitutional morality
 Communicate to citizens basic principles of constitutional morality that safeguard
every person’s place in society
Boaventura de Sousa Santos, “Nature and Types of Globalization(s)”
in Toward A New Legal Common Sense: Law Globalization, And Emancipation, 2
2002) 177-182 [CM 133-136]
d ed. (Butterworths,
OVERVIEW
Two kinds of globalization meet and clash in the global political arena : on the one hand, globalization from
above or hegemonic paradigmatic globalization and on the other, globlaization from below OR counterhegemonic gloablization comprising of subaltern Cosmopolitanism and common heritage of mankind.
pg. 177
• Globalization is not linear or unambiguous – it is HIGHLY CONTRADICTORY and UNEVEN
• In apparnet contractiction to the trend of increasing deterritorialization is the new prominence of RIGHTS
TO ROOTS that are often adopted by translocalized groups (ex. Islamic fundamentaists in London or Paris)
Another good example is the EU which has deterritorialized relations at the state level only to reterritorilize
them at the suprastate level ie. EU as a fortress.
• Globalization is NOT anarchic – it reporduces the heirarchy of the world systems
• Although most gloablization focusses on the economy Bonaventure wants to focus on the social, political
and cultural dimensions.
• Also notes that the word should only be PLURAL – ie. Globalizations because there is no single entity
• Bonaventure asserts that ’More often than not the discourse of globalizations is the story of the winners as
told by the winners.’
Pg. 178
• Bonaventure defines gloablasim as ‘the process by which a given local condition or entity succeeds in
extending its reach over the globe and by doing so, develops the capacity to designate a rial social condition
or entity as local.’
• What are the implications of this definition ?
i. ‘Globalization’ is ALWAYS the successful globalization of a given localism … there is no global
condition that does not have a local root
ii. Globalization entails localization … in fact it would be equally correct to label what we now call
globalization, localization. (it is the hegemonic discourse of the ‘winners’ that determined that the process
would be called globalization !!
iii. A full menaing and explanation of globaliztion cannot be understood without considering the adjunct
processes of relocalization (ex. globalization of the Hollywood star system requires the ethnification of the
Hindu star system as Bollywood)
Pg. 179
One of the transformations of localities most commonly associated with globablization is the ‘time-spac
compression’ But Bonaventure points out that it is ONLY the transnational capitalist class that are able to
take advantage of this … the subordinate classes of migrant workers or refugees remain prisoners of the local
time-space.
In order to account for this asymmetry Bonaventure distinguishes TWO FORMS of Globalization :
i. Globalized Localism
Processes where a local phenomenon is gloablized
EX: McDonald’s fast food, the adoption of American Copyright laws
or the transformation of Englsih into the dominant language
ii. Localized Globalism
In this Bonaventure examines the specific IMPACT of transnational practices and imperatives on local
culture
EX : Use of historical treasures, religous sites or ceremonies, arts and crafts and wildlife for toursim,
conversion of sustainable agriculature into export-oriented crops as part of ‘ structural adjustment’ plans
Within this context we see globalism assume the following pattern :
CORE countries specialize in globalized localisms while
PERIPHERAL countries have the Localized Globalisms IMPOSED.
Pg. 180
HOWEVER, there are two other processes at work :
a. Subaltern Cosmopolitanism (S.C.)
Organization of subordinate nation-states, regions, classes or social groups and their allies to conteract the
detrimental effects of the hegemonic forms of globalization. (EX : Worldwide Labour Unions)
NOTE : Bonaventure distinguishes Subaltern Cosmopolitanism from Marxism in the following ways :
a. Marx believed that capitalism would be overthrown by those who only had their ‘chains to lose’ but there
are now two distinct groups neither of which is reducable to a simple ‘only chains to lose ‘ analysis
i. Those with slightly more to lose – even if the more is symbolic only
ii. Those who have NO chains – who are not even useful enough to be exploited by capitalism adn to whom
’chains of capitalism ‘ might look like liberation !!!
b. Contrary to Marx no call for uniformity or breakdown of local differences,
autonomy and identities.
Pg. 181
2) Common Heritage of Humankind (C.H.o.H)
Emergence of issues which, by their nature are as global as the globe itself
EX : outer space, the ozone layer, the Amazon, Antarctica, or the oceans
The concern with both S.C. and the C.H.o. H has developed considerably over the last decades and has
provoked POWERFUL RESISTANCE.
Pg. 182
Two responses to S.C. and C.H.o.H.
i. Attempt to tackle with short and mid range measures
ii. Impossible to resolve as long as capitalism in the dominant world order as issues are constitutive features
of capitalism
Conclusion
It is this second type of discourse that creates the space for social practices that transcend the heirarchies
established by assymmetical globalisms and for credible emancipation beyond the capitalist reasoning and
resonableness.
John H. Currie, Public International Law, 2d ed.
(Toronto: Irwin Law, 2007) 95-101
Pg. 95
Because the international legal system is comprised of sovereign autonomous states the final work of the
‘true source of international law’ rest with the states themselves.
He most widely acknowledged statement of international law is that which was crafted by states in 1945
when establishing the International Court of Justice (ICJ) in article 38 :
Article 38
1. The court, whose function it is to decide in accordance with international law such disputes as are
submitted to it, shall apply :
a. International conventions, whether general or particular, establishing rules expressly recognized by the
contesting states,
b. International custom, as evidence of a general practice accepted as law,
c. The general priniciples of law recognized by civilized nations,
d. Subject to the provisions of Article 59, judicial decision and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
This Article (38) is generally taken to be an accurate description of the sources of international law
generally. 0This is evidenced by the fact that virtually all discussions of the sources of international law,
whether by states, courts or commentators, take as their starting point Article 38 of the ICJ Statute.
Pg. 96/97
Obvious distinction between a,b & c v. d. D is seen not as a source but as a wasy of determining the law’s
content. (In other words d is not a law creating source but a law-finding source.)
HOWEVER it could be argued that in the absence of an international constitutional law maker all of these
sources are law finding at best… realy what is the true international source of binding legal obligatiosn is
international relations ??
Some would say that the language of the statute supports a positivist theory of consent as the true source of
binding obligation in international law. (because of the words italicized ie. Expressly recognized, accepted
etc.)
Criticism of Sec. 38 :
1) It clarify whether it is meant to be an exhaustive statement of all possible sources of International Law
2) It does not adequately specify what the relationship between the 4 categories is.
3) It does not clarify how to deal with a possible conflict between different categories
These issues are a testament to the uncertianty or at least complexity of the issues.
Pg. 98/99
Example given of the complexity : In the case of treaty v. custom should a treaty trump unless the state that
the dealings are with are not party to the treaty ?
In short, Scott states :
The issue of how the various sources of IL interact with eachother is either too complex or unresolved to be
codified in any concise manner in Article 38. That is likely the reason that the article does not address the
issue.
Turn to a review of the different sources of International Law :
1) Treaties (Article 38 (1) a )
• One of two principle sources of International Law
• No distinction between multilateral or bilateral or between general and very specific contract like treaties
• Advantages : speed and clarity with which the law may be created or advanced
• Disadvantage : bind only the parties to them and binding is merely from the consent of the parties to be
bound
Pg. 100/101
2) Customary International Law (CIL) (Article 38 (1) b )
• Unlike treaties where parties bind by agreement, customary IL arises from that sustained conduct of states
which they themselves believe (for whatever reason) to be legally required.
• Predates nultilateral treaty making
• SINGLE MOST IMPORTANT FEATURE :Universally binding (with few exeptions)
• Weaknesses : 1) it is by nature conservative and 2) because it is inductive it does not always give a precise
or finely tuned rule to govern intricate situations
Thus it can be seen that CIL and treaties have a complementary role to play as sources of international law
and offset the weaknesses of one another.
3) General Principles of Law (GPL) (Article 38 (1) c)
Least understood or agreed upon source
What is a general principle … is it different from a principle ? is it different from a rule of law ? does it
refer to only domestic or also internatinal law ?
The only one of those questions that is settled is that the predominant view is that the «’general principle of
law’ means general principles of domestic law.
Dan Danielsen, How Corporations Govern : Taking Corporate Power Seriously in Transnational Regulation
and Governance in
Harvard International Law Journal, Vol. 46, Number 2, Summer ‘05. pg. 412-425
Pg. 411
Uncontroversial to claim that corporations are significant contributors to the shape and content of national
and transnational regulation and that their contributions have significant effect of social welfare YET few
scholars look at :
• the mechansms through which they contribute to transnational regualtion and governance and
• the extent to which the social welfare effects of regulation and policy may be attributable to corporate
activity.
Pg. 412
1. How Corporations Govern
Typography of specific modes through which corps create/shape reulatory regimes
1) Through interpretations to or reactions to a legal rule scheme
2) Supply rules where none exist
3) Shape the rule scheme through direct pol’t or economic pressure
4) Evading scheme by moving business elsewhere
5) Adopt more stringent practices than the rules require
6) Act in groups to creat a harmonized regulatory environment or to prevent regulation
When corporatiosn create or shape the content, interpretation, efficacy or enforcement of legal regimes and,
in doing so, produce effects on social welfare similar to the effects resulting from rule-making and
enforcement by governments, corporate actors are engaged in governence.
Pg. 413 – Hypothetical
Pg. 415
Under such circumstances, if the decisions of corporate actors are indistinguishable from the decision of
state actors in term of regulatory and social welfare effects, then treating one as ‘private activity’ and the
other as ‘regulatory’ or ‘government’ activity will likely lead to more thatn ideological confusion. Such
counterfactual misunderstandings about the way the transnational regulatory regime actually functions and in
consequent mistakes in policymaking.
Pg. 416
Corporations with different types of ownership and decision-making structures and buusiness orientations
may well make different types of decisions as they pursue their business purposes.
Pg. 417 – 423 Case Study – Interactive Media
Pg. 423 Conclusion
This view of transnational regulation and governance challenges a more traditional one that sees passive
private) corporations as governed by and reacting to regulation created by active (public) national and
supranational regulators. If both public and private institutions are governing and governed by a regulatory
regime of their joint production, then accountability for the social welfare effects of regulatory outcomes
should not fall exclusively on «’public’ regulators and the actions and decisions of ‘private’ corporate actors
should not be exempt from public participation, review and political contesttion.
Pg. 424
Decisions and actions of corporations have social consequences largely indistinguishable from those created
by public regulators but … largely insulated from public participation, engagement or scrutiny.
Pg. 425
In this context we might find that coporate law functions not unlike a constitution in a public governence
context – shaping behaviour not only within corporations, but also in the complex reglatory regime through
which we are governed globally.
Craig Scott, “Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate
Accountability for Human Rights Harms” in
Craig Scott, ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human
Rights Litigation (Oxford: Hart Publishing, 2001) 58-63 [CM 173-176]
CB pg. 173
This article seems to address the question arising from Currie’s discussion of what laws might be binding …
If judicial acts of international committees are non-binding, such that theri authority is persuasive only, what
degree of persuasiveness should they be given ?
It can be argued that this non-bindingness is a blessing in disguise b/c the judicial or quasi-judicial scrutiny
or reasoning can be brought to bear on conduct but does not close down the possibility that gov’t bodies
might take a different view.
Ie. Allows prodding of the process but doesn’t prempt that process.
Pg. 58
Contexts to take into account the status of judicial Acts :
1) European Convention on Human Rights
Presently court sees role as financial compensation only but could have to power toissue an injunction,
perhaps could be used to reccommend a course of action to a state actor
2) Eveolving realtionahip between international regimes (such as ILO and WTO) with respect to core labour
standards
Actors have thusfar been reluctant to insert binding clauses into WTO and instead rely on ILO but since ILO
»s instrument is blunt (ie. Trade sanctions) it might be better if one or the other of these organizations
harnessed a recommentroy power of remedial suggestions
Finding solutions to child labour and forms of bonded labour come to mind as situations that would benfit
from complex, non-impositional remedial processes engaging states, corporate actors and affected groups in
some co-operative problem-solving enterprise.
3) Eliminating the Reliance on defence of ‘Act of State » in domestic courts
Since it is clear that the power dynamics between first world corporations and third world governments
enable ‘joint ventures’ that speak to the repressive act of a regime and not a ‘true act’ of an independent
governemtn
The decision to ignore the decree of the third party state would beto issue a binding decision against the
corporate actor under the domestic rules that SHOULD bind those actor in the first place.
4) Codes of Corporate Conduct (CoCC)
a. These are rapidly beoming the most prevalent form of transnational « regulation » of corporate actors
b. To date limited impact because they are devoid of monitoring or spotlight conduct review procedures only
self regulatory
However these CoCC’s have put a small army of TROJAN HORSES inside corporations ….
Pg. 61
• Look to deal with these interstate problems via the metaphor of ‘translation’
• Mutual modification of texts as a process rather than an end product.
• In making the ‘translation’ creates an opportunity to view the origianl’s qualities and complexities in a
different view.
• Think of the idea of mutual translation
Pg. 62
In what ways could human rights complaints be formalized in a private law Cause of Action ?
1) Direct cause of action ie. That violation of the human right not to be tortured
(Here it would be possible to point to four possible sources for the human rights
a. Local law
b. Public International Law – ie. Treaty law, customary law or general principles of law—
c. Transnational Law (blend of norms with no source)
2) Indirectly pleaded, so that although they are the purpose of the litigation other legal categories might be
invoked in order to vindicate the substance of the human rights protection ie. Pleading battery rather than
torture …
(Here it might be helpful to divide between
1) Surrogate Claims – ie. Existing causes of action that come close to capturing the kinds of harm done
2) Instrumental Claims – ie. A claim in which a recognized legal interest is used as the bsis for a law suitw
tih the recognition that protection of that interest will instrumentally benefit the protection of human rights
interests
Pg. 63
A CAUTION : Nothing in the foregoing is menat to suggest a once-and-for-all choice … Temporal,
contextual and pragmatic variables shoudl influence the approach.
Day 5 Readings

Allan Hutchinson, “In the Public Interest: The Responsibilities and Rights of Government Lawyers”,
(2008) 43 Osgoode Hall Law Journal 106-125
Democracy and Legal Ethics



Democracy’s “core commitment is to the understanding that people should rule over themselves” (p
107)
In reality there is compromise on some of democracy’s “idealistic aspirations” so they can be
implemented in an efficient manner.
“a strong and forceful legal profession is a vital resource in holding governments to democratic
account and guaranteeing that all citizens are empowered by vigorous representation in their dealings




with governing bodies and other powerful elites” (p 109)
There is always the danger that the legal profession will become a power on its own that puts its own
interests ahead of the clients and does not serve the public interest.
Requires mechanisms that ensure legal profession is accountable to the public
“The challenge is to craft a set of regulatory, legal and ethical arrangements that allow and require
members of the profession to act in a way that satisfies the demands of democracy and the public
interest by contributing to and facilitating the devolution and accountability of power” (p 109)
Lawyers have a fiduciary relationship with client and must give priority to relationship even when it
clashes with other interests such as the to the courts, the public and one’s self.
Government Lawyers







lawyers practicing in different areas have differing ethical obligations
“Government lawyers- those who are employed by or sub-contracted to work for federal, provincial,
or local governments, related agencies, and public bodies- are largely held to the same ethical
standards and requirements as private lawyers” (p 112)
American courts sometimes hold to a higher standard, Canadian courts have refused
Situations that confront government lawyers may be very different however although there are
superficial similarities to private lawyers such as the day-to day work
“Government lawyers are charged with acting on behalf of government and placing the public interest
ahead of the interests of any particular individual; there are many statutory, constitutional, and
regulatory initiatives that impinge upon government lawyers.” (p 113)
Private lawyers less concerned with public interests
“government lawyers are different in that they are expected to have a more expansive and more public
appreciation of their roles and responsibilities than their private counterparts” (p 115)
In the Public Interest
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“because there are so many competing notions of what compromises the public interest and how it
should apply in particular situations, it is a notoriously difficult and contested task to designate what
ends are in the public interest and what means- which must also be consistent with the public interest
– are best pursued to realize those ends” (p 116)
“democracy is premised on the belief that such determinations are inherently political and are best
made by the people themselves” (p 116)
There must be accountability of public officials to protect against power-hogging
Democratic government should be as open and transparent as possible
Presents challenges in determining what is the responsibility of government lawyer when it comes to
confidentiality and zealous advocacy
Zealous Advocacy
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“Government lawyers can and should make a valuable contribution in shaping discussion about what
represents the public interest in any particular instance.” (p 119)
Should have a commitment to democracy and therefore no veto over determining what is in the public
interest by elected officials
“after exhausting all opportunitites for persuasion and discussion, government lawyers must advance
the determined goals or strategies with customary enthusiasm or give up their position” (p 119)
The identity of clients for government lawyers is not completely clear
Could be: “the government as a awhile; the branch of government in which the lawyer is employed;
the particular agency or department in which the lawyer works; the responsible officers who make
decisions for the agency; and the public interest itself” (p 120)
“from a democratic perspective, it can be argued that whether it is the government generally or the
public interest at large that is to be served by government lawyers, there is no compelling reason why
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the government lawyer’s views as to what to do should take precedence over the view of elected
officials and/or political superiors” (p 120)
Government lawyers should not be allowed to pursue their own ideas of what is in the public good
over political superiors as it will have the effect of holding the public interest hostage
May as a result have to pursue goals that they do not a agree with but is the price paid for democracy
Confidentiality
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“government lawyers are ina different position when it comes to the demands of confidentiality” (p
124)
Should not be under the same expectations for maintaining confidentiality
Confidentiality important for private lawyers but less appealing for government lawyers
“the rule of confidentiality is meant to protect the relatively powerless citizen against the state by
ensuring effective legal representation through open communication, it does not seem either necessary
or useful when the government is the putative client being protected” (p 126)
“confidentiality and open government do not sit at all well together” (p 126)
Pritchard: Court held that lawyer-client privilege applies equally for private and government lawyers
Hutchinson disagrees with decision in Pritchard “is regrettable and flies in the face of basic
democratic and institutional realms”
“Government lawyers might well better serve the public interest by breaking confidentiality than
preserving it” (p 128)
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Karen Knop, “Here and There: International Law in Domestic Courts”, (2000) 32 NYU Journal of
International Law and Politics 501-535.
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Baker v. Canada
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Are similarities and differences in the way Canada treats international laws and other nations
Immigration officer orders Baker to be deported from Canada for staying longer than visitor
visa allows
Came to Canada and stayed for 11 years and had four children that were Canadian citizens
Applied for exemption from requirement that permanent residence status be applied outside of
the country
Claimed that treatment for her post-partum psychosis would not be as available in Jamaica if
she became ill and that she was sole supporter of children
Without reason she was told that there was not sufficient humanitarian or compassionate
grounds to allow for application of permanent residence within Canada
Case went to SCC and found that there was bias on the part of immigration officer
“question certified on appeal in Baker was whether, given that the Immigration Act did no
expressly incorporate Canada’s international obligations under the International Convention
on the Rights of the Child, the immigration authorities were nevertheless required to respect
the Convention by treating the best interests of the Canadian child as a primary consideration
in assessing an application on humanitarian and compassionate ground under the Immigration
Act.” (p 510)
Convention on the Rights of the Child must be made binding in Canadian law for the courts to
consider it
Baker argued that legislature should be interpreted to comply with international conventions
whether or not incorporated into domestic laws
Two Models of International Law in Domestic Courts
Traditional model
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Court is engaged in constructive interpretive exercise when it comes to issues relating to international
law
“The traditional model of international law in domestic courts asks when a state’s international legal
obligations are binding in its domestic law” (p 515)
Hardwiring of international law into domestic law (p 515)
Domestic courts are best hope of putting international law into action (p 516)
Model does not say much about the use of non-binding international law or about the persuasiveness
of international law in domestic courts (p 518)
International law in Canadian courts is not fully explained/justified by binding/non binding distinction
Chief Justice of Canada “The Charter can be understood to give effect to Canada’s international legal
obligations and should therefore be interpreted in a way that conforms to those obligations” (p 518)
Transgovernmentalism
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Alternative to traditional model is Slaughter’s model of transgovernmentalism
Model involves communication between courts world-wide
Highlights limitations to the traditional model, “emphaisizing the persuasive value of international
law and its function as a signifier of community” (p 520)
“Critics of transjudicialism fear that the authority of non-binding international and foreign law will
emanate not from persuasion but from power and influence, and that American law will therefore
become pre-eminent.” (p 521)
Worried that international law will be taken over and become American law
International and Comparative Law
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“According to David Kennedy, international law takes its project as governance, while comparative
law stakes out the ground of cultural understanding.” (p 526)
“If international law strives to construct an order that stands above cultures, comparative law operates
between them.” (p 526)
International law as legal order that transcends culture explains why traditional model does not
recognize culture in interpretation
Is acultural
“margin of appreciation” confining culture
Critics say international law is not in reality neutral and rather represents the white Western male
view of the world
In addition there is an effect of translation
“The original meaning of the text cannot be our meaning, for in restating it in our terms, in our world,
no matter how faithfully or literally, we produce something new and different” (p 529)