Adam M. Dodek

An Education and Apprenticeship in Civility: Correspondent's Report from Canada

This Correspondents Report from Canada examines two current issues: civility and apprenticeship (known as articling in Canada).

Sex on the Internet and Fitness for Judicial Office: Correspondent's Report from Canada

This report reviews allegations of judicial impropriety against Judge Lori Douglas of the Manitoba Court of Queens Bench that were revealed in the Fall of 2010. It is alleged that Douglass husband, a lawyer, posted nude photos of her on an internet web site. It is also alleged that the husband used those photos in an attempt to seduce a male client into having a sexual relationship with Judge Douglas who was then a lawyer at the same firm as her husband. This report reviews the allegations and the issues raised by them. Those issues involve the role of the law firm, the Law Society, the court and the judicial council.Marguerite Hamel-Nardozzi, MSW, is Clinical Social Worker, Department of Social Services, Massachusetts General Hospital, Boston, Massachusetts. Carol’s story is one of a disabled woman who, after living in her home for 10 years with the assistance of paid providers, is hospitalized in an acute care facility for surgery. Postoperative delirium and confusion cause Carol to lose decision-making capacity for a short time; even when her mental clarity returns, Carol is subject to disability bias, possibly unconscious, by health care providers who are persuaded to listen to her psychiatrically impaired son. The case study demonstrates that patients with disabilities in the acute care hospital environment need health care providers and ethics consultants who are open to learning their story and incorporate their wishes into a plan of care that supports their dignity.

The Canadian Override: Constitutional Model or Bête Noire of Constitutional Politics?

In the fall of 2014, Member of Knesset (MK) Ayelet Shaked of Israel’s Bayit Yehudi party proposed a bill to amend the Basic Law: Human Dignity and Liberty by inserting a provision that would allow the Knesset to “override” a decision of the Supreme Court of Israel striking down a law as violating that Basic Law. Previously, proposals to create a new Basic Law: Legislation included a provision which would enable the Knesset to override any Basic Law. Such provisions are about who should have the final word in constitutional adjudication – the Supreme Court of Israel or the Knesset. Time and again, MK Shaked cited Canada (as well as the U.K.) as having similar legislation. As a Canadian public law scholar familiar with the Israeli legal and political system, my interest lies in the Israeli invocation of “the Canadian override” as a model. In this paper, I examine whether “the Canadian override” is adaptable to the Israeli constitutional and political environment. To this end, I briefly explain what “the Canadian override” is and how it came to be. I analyze the positive attraction of the Canadian override as a constitutional model. I end by discussing the Canadian experience with its override, which has been called “the bete noire of Canadian constitutional politics” because of the manner in which it was adopted and the circumstances in which it was first used. I end with some concluding thoughts about legal transplants, legitimacy and lessons for Israel from the Canadian experience.

The ‘Unique Role’ of Government Lawyers in Canada

Discussions and depictions of lawyers in Canada largely ignore a significant segment of the legal population: government lawyers. Canada is a modern liberal democratic state with a significant public sector employing a large number of lawyers in many public sector settings. Lawyers who work directly for the executive branch – government lawyers – are a special subset of public lawyers. These government lawyers are ‘unique’ in many respects. They do not have paying clients as do private sector lawyers. Their client is ‘the Crown’ – an abstract emanation of the state. This article explains the unique role of government lawyers in Canada as derived from the historic and legislative responsibilities of the Attorney General. It then addresses questions that arise for government lawyers in Canada in public law litigation.

Regulating judges: challenges, controversies and choices

Judges are critical actors in justice systems around the world. Despite important differences between the various legal families (civil law, common law, socialist law and religious law), the judiciary is frequently viewed as an institution of considerable significance across such legal families. Judges preside over criminal trials where the liberty and, in some jurisdictions, the lives of individuals are at stake. They interpret laws and adjudicate disputes between individuals and the state. Judges review the legality of administrative action. In some jurisdictions, they have the power to strike down laws as inconsistent with the country’s Constitution. In civil cases, they may make determinations across a panorama of disputes, from divorce and child custody to personal injury and class actions to multibilliondollar commercial disputes. As an institution, the judiciary is often considered ‘the third branch’ of government alongside the legislative and executive branches. In short, judges exercise enormous power in society both as individuals and as an institution.1 We can therefore speak of judges collectively as ‘empowered judiciaries’. Broadly speaking there have been three types of responses to the emergence of empowered judiciaries. First, there are the boosters. They emphasize several key points: empowered judiciaries tend to promote development because they provide enhanced stability and predictability in the economic sphere;2 empowered judiciaries promote human and civil rights thereby enhancing human autonomy and the possibilities of improved democracy;3 and empowered judiciaries support the development of cultures of legality.4 Next, there are the sceptics. They argue that the connection between development and empowered judiciaries is much more contingent and complex than the boosters suggest.5 In addition, sceptics are concerned that empowered judiciaries are a threat to autonomy, human flourishing

Canada: Death of a Legal Icon, Dawn of Change?

This comment reviews the demise of the iconic Canadian Heenan Blaikie which shut its doors in February 2014 after a storied 40 year history. It was one of Canadas leading national law firms and the first one ever to fail. Founded in 1973 in Montreal, Heenan Blaikie quickly established itself as one of the top law firms in Canada and was home to former Prime Ministers, a former Quebec Premier and retired judges of the highest courts including the Supreme Court of Canada. This comment reviews some of the many explanations and speculations for the firms demise and asks what Heenans failure means for the future of the Canadian legal profession.

Courthouse Cancellations and Challenges to Self-regulation: 'Correspondent's Report from' Canada

This is the Canadian Correspondents Report to the journal Legal Ethics in the Ethics in Practice section. It addresses the continuing Canadian angst regarding self-regulation of the legal profession and the continuing investigation into allegations of judicial misconduct against Associate Chief Justice Lori Douglas of the Manitoba Court of Queens Bench, stemming from her actions prior to her appointment to the bench. These allegations involve the use of sexually explicity photos of her by her husband to attempt to entice the husbands then - client to enter into a sexual relationship with Judge Douglas.

Conflicted Identities: The Battle Over the Duty of Loyalty in Canada

Conflict of interest has been a leading issue in the Canadian legal profession over the last three decades, and it shows no sign of abating. No other issue has so consistently and dramatically dominated both the practice of law and its regulation in Canada. This article describes the conceptual and public battles that have been fought over conflicts of interest in Canada during this time. These battles reveal deeper ontological divisions about the practice of law in Canada. The clash over conflicts of interest exposes competing conceptions of what it means to be a lawyer in Canada in the twenty-first century and how the legal profession should be governed. The conflicts of interest debate increasingly centres on the idea of ‘lawyer loyalty’ — the duty of loyalty owed by lawyers to their clients.