Consultations begin on Model Code amendments

The Federation of Law Societies has launched a public consultation on proposed amendments to the Model Code of Professional Conduct, addressing issues related primarily to technological competence and the return to the practice of law by former judges. Prepared by the Standing Committee on the Model Code, the proposed changes were developed to better reflect current legal practice and ethics. The deadline for responses to the request for comments is May 30, 2017.

Technological issues are not currently specifically addressed in the Model Code. Given the proliferation of technology, the proposed amendment has been drafted to counsel members of the legal profession on the need for technological competence appropriate for their own practice area.

The review of the relevant Model Code rules relating to judges retiring and returning to practice began in 2015, when concerns were raised by the legal ethics academy and the courts. The Federation committee took into consideration corresponding rules in the provincial and territorial rules of professional conduct, academic literature, and international approaches to the regulation of post-judicial conduct. The committee also reviewed feedback received from key stakeholders in response to a discussion paper on the issue circulated in May 2016.

The proposed new rule concerning the recruitment of judges discourages law firms or lawyers from recruiting or engaging in discussions with a judge concerning a potential business or employment relationship, given the possible judicial conflicts of interest that may arise and the potential to compromise the appearance of judicial independence.  It allows, however, for the recruitment of former judges, subject to the conflict of interest provisions and related principles outlined in the Code.

The proposed rule on Former Judges Returning to Practice would bar former provincial, territorial or federally appointed judges, from communicating with or appearing as a lawyer before any Canadian court or tribunal, with the permission of the law society in the relevant jurisdiction. The proposed rule would permit former judges to mentor, support, coach and teach others how to better advocate before, or correspond with, a court.

After the consultation, further amendments may be made in response to the feedback received, with final amendments to be presented to the Council of the Federation for approval in December 2017 and then submitted to the law societies for adoption and implementation.