- See, for example, the reforms implemented in England and Wales regarding the appointment and accountability systems for judges as part of the constitutional reforms of 2006, discussed in Kate Malleson, ‘Appointment, Discipline and Removal of Judges: Fundamental Reforms in the United Kingdom’ in HP Lee, Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 28. See discussion of the Australian position by reference to the UK reforms in Andrew Lynch, ‘Judicial Appointments in Australia: Reforms in Retreat’, UK Constitutional Law Blog, 26 May 2014, http://ukconstitutionallaw.org/2014/05/26/andrew-lynch-judicial-appointments-in-australia-reform-in-retreat.
- Reforms to the accountability system for federal judges were negotiated and agreed with the judiciary prior to their enactment: Commonwealth, Parliamentary Debates, House of Representatives, 14 March 2012 (Nicola Roxon). See also Simon Shetreet, ‘The Limits of Judicial Accountability: A Hard Look at the Judicial Officers Act 1987’ (1987) 10 University of New South Wales Law Journal 4, 8–9 (discussing the legislation creating the NSW Judicial Commission).
- A recent survey indicated that Australian High Court judges ranked fourth in a list of Australia's most highly regarded professionals: Roy Morgan, Image of Professions Survey 2014, www.roymorgan.com/findings/5531-image-of-professions-2014–201404110537.
- Attorney-General's Department, Judicial Appointments—Procedure and Criteria (1993), para 1.4, quoted in HP Lee, ‘Appointment, Discipline and Removal of Judges in Australia’ in HP Lee, Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 28.
- See further Andrew Lynch, ‘Judicial Appointments in Australia—Reforms in Retreat’, UK Constitutional Law Blog, 26 May 2014, http://ukconstitutionallaw.org/2014/05/26/andrew-lynch-judicial-appointments-in-australia-reform-in-retreat.
- Chris Merritt, ‘An Injudicious Revolt’ The Australian, 27 June 2014.
- See further Richard Ackland, ‘Court Offside by Chief Justice Tim Carmody’ The Saturday Paper, 5 July 2014, www.thesaturdaypaper.com.au/opinion/topic/2014/07/05/court-offside-chief-justice-tim-carmody/1404482400#.U9W6ZlOwaUY.
- President Margaret McMurdo, ‘A Report Card on Gender Equality at the Queensland Bar and Bench and the Invisible Woman’, speech given to the Queensland Women Judicial Officers and Barristers, Brisbane, 21 March 2014, http://archive.sclqld.org.au/judgepub/2014/mamcmurdo210314.pdf.
- www.couriermail.com.au/news/opinion/opinion-attorneygeneral-jarrod-bleijies-crisis-of-confidence/story-finihsr9v-1226863613877.
- Hon Justice JDM Muir, speech to the North Queensland Bar Association Bi-Annual Court of Appeal Dinner, 18 June 2014.
- Melinda Howells, Stephanie Smail and Maria Hatzakis, ‘Legal Figures Question the Suitability of Tim Carmody as the New Queensland Chief Justice’, ABC News, 13 June 2014, www.abc.net.au/news/2014-06-12/qld-government-appoints-tim-carmody-as-chief-justice/5519358.
- Chris Merritt, ‘An Injudicious Revolt’ The Australian, 27 June 2014.
- Peter Davis QC, letter of resignation, 13 June 2014, www.justinian.com.au/storage/pdf/Davis_BAQ_resignation.pdf.
- Emma Channon and Sarah Vogler, ‘Call for Tim Carmody to “Stand Down” as Judge Adds to Scathing Responses to Appointment’ Courier-Mail, 19 June 2014.
- Denver Beanland, ‘Criticism of Tim Carmody Chief Justice Appointment Has Only Diminished Public Confidence in the Courts' Courier-Mail, 2 July 2014.
- See generally Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional Integrity’ (2014) 38(2) Melbourne University Law Review (forthcoming).
- Sean Fewster, ‘Drink-Driving Supreme Court Judge Anne Bampton Apologises, Fined $1300 and Disquali-fed from Driving for Eight Months' The Advertiser, 15 January 2014, www.adelaidenow.com.au/news/south-australia/drinkdriving-supreme-court-judge-anne-bampton-apologises-fined-1300-and-disqualifed-from-driving-for-eight-months/story-fni6uo1m-1226801748176.
- Chris Kourakis, Chief Justice of South Australia, media release, 15 January 2014.
- ‘The Wise, Savvy and Even Dangerous—20 South Australians to Watch in 2014’ The Advertiser, 4 January, 2014, www.adelaidenow.com.au/news/south-australia/the-wise-savvy-and-even-dangerous-20-south-australians-to-watch-in-2014/story-fni6uo1m-1226794766563.
- Amy Salyzyn, ‘The Long, Sometimes Winding, Road of Professional Discipline: Correspondent's Report from Canada’ (2012) 15 Legal Ethics 381, 384.
- Adam Dodek, ‘Sex on the Internet and Fitness for Judicial Office: Correspondent's Report from Canada’ (2010) 13 Legal Ethics 215.
- Amy Salyzyn, ‘Canada: Foreclosures, Freemen, Foreign Law Schools and the Continuing Search for Meaningful Access to Justice’ (2013) 16 Legal Ethics 223; and see Noel Semple, ‘Canada: Depending on the Kindness of Strangers—Access to Civil Justice’ (2014) 16 Legal Ethics 373.
- This is intended to be a broad definition. Lawyers who are employed as public servants are often called ‘public sector counsel’ or ‘government counsel’; see eg Deborah McNair, ‘In the Service of the Crown: Are Ethical Obligations Different for Government Counsel?’ (2006) 84 Canadian Bar Review 501, 502.
- After an investigation the Royal Canadian Mounted Police decided that there was no basis for laying criminal charges; see Daniel LeBlanc, ‘RCMP Defends Decision to Drop Nigel Wright Probe’ Globe and Mail, 30 April 14, www.theglobeandmail.com/news/politics/rcmp-defends-decision-to-drop-nigel-wright-probe/article18355744.
- See Julie Angell, ‘Ethics, Torture, and Marginal Memoranda at the DOJ Office of Legal Counsel’ (2004) 18 Georgetown Journal of Legal Ethics 557.
- Schmidt v Attorney General of Canada (Federal Court File T-2225-12).
- The relevant statutes are: s 3 of the Canadian Bill of Rights, SC 1960, c 44; s 4.1 of the Department of Justice Act, RSC 1985, c J-2; s=s 3(2) and (3) of the Statutory Instruments Act, RSC 1985, c S-22.
- For a discussion of the ethical duties of legislative counsel, see Deborah MacNair, ‘Legislative Drafters: A Discussion of Ethical Standards from a Canadian Perspective’ (2003) 24 Statute Law Review 125.
- Adam M Dodek, ‘Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law’ (2010) 33 Dalhousie Law Journal 1, 6–7; see also Joshua Wilner, ‘Service to the Nation: A Living Legal Value for Justice Lawyers in Canada’ (2009) 32 Dalhousie Law Journal 177, 182.
- In saying this, I recognise that lawyers occasionally have duties to disclose information, such as where there is imminent danger to an identifiable member of the public: see Smith v Jones [1999] 1 SCR 455.
- See McNair (n 4) 529; Dodek (n 10) 7; see generally Roger C Cramton, ‘The Lawyer as Whistleblower: Confidentiality and the Government Lawyer’ (1991) 5 Georgetown Journal of Legal Ethics 291.
- R v Babos 2014 SCC 16.
- Boucher v R [1955] SCR 16, 25.
- R v Babos (n 13) para 61.
- Ibid, para 5.
- Ibid, para 85.
- R v Piccirilli, 2008 QCCQ 11373 (sub nom R v Babos) at para 66.
- Allan Hutchinson, ‘In the Public Interest: The Responsibilities and Rights of Government Lawyers' (2008) 46 Osgoode Hall Law Journal 105.
- Several examples could be cited, but see eg Government Lawyers' Committee of the Law Society of New South Wales, Guidance on Ethical Issues for Government Solicitors, www.lawsociety.com.au/uploads/fleli-brary/1063349218109_0.6487510402009506.pdf.
- On this point, see also Dodek (n 10) 4.
- www.canadianlawyermag.com/legalfeeds/1868/the-top-10-canadian-legal-ethics-stories-of-2013.html.
- 2013 SCC 39.
- MacDonald Estate v Martin [1990] 3 SCR 1235.
- R v Neil, 2002 SCC 70.
- Strother v 3464920 Canada Inc, 2007 SCC 24.
- R v Neil, para 29 (emphasis in original).
- They were the only two interveners in the case.
- For more information on the debate that arose in Neil's wake, see Adam Dodek, ‘Conficted Identities: The Battle over the Duty of Loyalty in Canada’ (2011) 14 Legal Ethics 193.
- McKercher (n 2) para 33 (emphasis in original).
- Ibid, para 35 (emphasis in original).
- This had already been clarifed in the preceding Strother decision. It had, however, been one of the major points of confusion following Neil, with observers and practitioners wondering whether ‘business conficts' now amounted to ‘legal conficts'. The answer, as provided in Strother and repeated in McKercher, is no. Curiously, the Court in McKercher chose not to repeat the exception that was noted by Binnie J in Strother, which is that business conficts can still be relevant when, for example, both clients are competing for the same prize, such as when both are trying to obtain a single broadcast licence. Presumably, this exception has not been overridden by McKercher.
- McKercher, para 36.
- Ibid, para 37.
- Ibid.
- Ibid, para 38.
- See the FLSC's news release at www.fsc.ca/en/federation-news/2013/supreme-court-of-canada-clarifes-conficts-of-interest-rules and the CBA's at www.cba.org/CBA/news/2013_releases/07-mckercher.aspx.
- McKercher, para 9.
- These three aspects of the duty of loyalty were frst clearly identified by Binnie J in Neil at para 19. The duty of confidentiality could also be seen as another aspect of the duty of loyalty, although it is sometimes considered a distinct duty.
- McKercher, para 10. It is now clear, if it wasn't suffciently clear before, that a firm cannot terminate all of a client's retainers to suddenly become confict-free.
- Ibid. This duty includes the obligation to advise an existing client before accepting a retainer against that client. To accomplish this while fulflling its duty of confidentiality owed to the new client, the firm needs to obtain the consent of the new client, without which it will have to decline the new retainer.
- Ibid, para 61. The third purpose is necessary to, inter alia, handle situations like the present one where the retainers have all been terminated.
- The matter never made it back to the motion judge. Following the Supreme Court's decision, the McKercher law firm decided to terminate its representation of the plaintiffs.
- See http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Alastair-Brett.pdf.
- Ibid.
- ‘Former Times Lawyer to Appeal Suspension after Paper Misled High Court about Computer Hacking’, PA Medialawyer and Press Gazette, 14 July 2014, www.pressgazette.co.uk/former-times-lawyer-appeal-suspen-sion-after-paper-misled-high-court-about-computer-hacking.
- See www.sra.org.uk/sra/news/press/alastair-brett-suspension.page.
- For information on the SDT membership see www.solicitorstribunal.org.uk/about-us/membership-detail.
- The Solicitors Code of Conduct (2007) has subsequently been updated, most recently on 1 July 2014, and is accessible at www.sra.org.uk/solicitors/handbook/code/content.page.
- See n 4.
- Case C-550/07 P Akzo Nobel Chemicals Limited and Akcros Chemicals Limited v European Commission. For a discussion of the decision and subsequent responses from some EU member states, see www.ibanet.org/Article/Detail.aspx?ArticleUid=0391bbba-1b9e-4b0d-a676–740e9c5240c1.
- For the extent see www.lawsociety.org.uk/advice/practice-notes/aml/legal-professional-privilege; for a discussion see www.pinsentmasons.com/pdf/privilegesomepracticalconsiderations.pdf and www.charlesrussell.co.uk/UserFiles/fle/pdf/Competition%20&%20Regulation/Limiting_the_scope_of_privilege.pdf.
A Spotlight on Judicial Regulation in Australia
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