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Final

LAW142 Final: LAW 201 Final Exam Notes Modules 1-9


Department
Law
Course Code
LAW 142
Professor
Mary- Jo Maur
Study Guide
Final

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1
LAW Ea Notes
Module 1: The Role of Lawyers and Judges The Canadian Legal System
Lesson 1A
What do lawyers do in society?
- Many different roles
o Politicians
o Poli akes Goeet, NGO’s, iteatioal ogaizatios
o Private practise, in-house counsel
o Judges
o Academics
- But the overriding role of lawyers in society is to protect the rule of law
The Rule of Law
- The law must be fairly applied to all
- The law must be created fairly
- Everyone is accountable to the law
- Law must be promulgated and enforced fairly
- The rule of law is not a defined statute or common law rule
o It is instead an overarching principle which governs the creation of laws and their implementation in
democratic nations
- Requires constant vigilance
The Anti-Terrorism Bill (Bill C-51)
- Government devoted website to Bill
- Purposes of Bill
o Stop the promotion of terrorism
o Prevent terrorists from implementing their plots
o Disrupting terror plots
- Canadian Bar Association objects to the Bill
o Bill is too broad
o Would restrict free speech
o Would criminalize legitimate expressions of freedoms
o Offends charter
o Goes agaist fudaetal ole of judges as potetos of Caada’s ostitutioal ights
- The government however has public safety concerns in mind and says:
o Some restrictions of personal freedom are justified in order to protect the public at large
The Internal Conflict for Lawyers
- Neutral partisan vs moral activist
- Are lawyers just a sophisticated mouthpiece for their clients?
- What if a client wants to do something morally or legally wrong?
- Are lawyers required to take positions on behalf of clients that offend their own views?
- Or should they ignore what their clients instruct them to do in service of what they may perceive as higher social
values?
- Ho do the esole this oflit? … Ethics

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2
1A Textbook Reading pages 21-25
Rule of Law
- The term rule of law concerns fairness in the administration of the law
1. Everyone in a society, regardless of their social or political position, should be treated equally before the law
2. Power under the law should not be used arbitrarily
Origins of The Rule of Law
- King John of England (1167-1216) signed one of the most famous legal documents in the democratic world, The
Magna Carta (1215)
o The seeds of the rule of law were planted with the Magna Carta
Die’s 3 Core Rule of Law Principles
1. Law must have supremacy over the influence of arbitrary power. It follows from this that no one can be
punished expect for breach of an established law as determined through an established process before the
courts
2. No one is above the law whatever his place in society or the law applies equally to everyone. It is recognized
judicial process that will make the rulings to ensure this occurs
3. Personal rights and liberties must be protected by giving every person the ability to apply to the courts for a
remedy should any of those rights and liberties be denied
- Die’s oeptio of the ule of la elates oe to the “procedural faiess tha to the sustatie faiess
o It deals with when and how the lows are applied rather than the fairness of the laws themselves
Joseph Raz’s Priiples
1. All laws should be prospective, open, and clear
2. Laws should be relatively stable
3. The making of particular laws (legal orders) should be guided by open, stable, clear, & general rules
4. The independence of the judiciary must be guaranteed
5. The principles of natural justice must be observed
6. The courts should have review powers over the implementation of the other principles
7. The courts should be easily accessible
8. Crime prevention agencies should not be allowed to pervert the law at their discretion
- Raz’s fist  piiples elate to the las theseles
o The clearer and more certain out laws are, the better they will guide us, and the less scope there will be
for arbitrary power
- The 5 remaining principles relate to fairness in the enforcement process, primarily through the court system but
also through the police and other crime-prevention arms of government
Other legal scholars have suggested other requirements for the rule of law:
- Independence of the legal pofessio the a ust e seue
- Lawyer-client confidentiality must be guaranteed
- Legal services must be affordable for the average person
Lesson 1B: Legal Ethics and Professional Responsibility
Lawers’ oligatios a oflit with eah other
- Obligations to client
o Confidentiality
o Following instructions
o Adoatig fo liet’s positio
o Obtaining best result for client

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- Obligations to the public
- Honesty with courts and tribunals
- Working towards just result
- Complying with procedural rules
Obligations to the clients
- Duty to the client
o Confidentiality
o Loyalty
o Competence
Competent
- Rule 3.1-1 of Ontario Rules of Professional Conduct states
o Competent lawyer means a lawyer who has and applies relevant knowledge, skills, and attributes in a
manner appropriate to each manner undertaken on behalf of the client
o Rules of professional conduct contain commentary, which are interpreted suggestions written by the
Law Society
o As a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in the
practise of law
o Client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal
attes to e udetake o the liet’s ehalf
- Rule puts onus on each lawyer to ensure he or she is competent and capable
- Pat of la soiet’s jo to help laes eoe opetet  offeig otiuig legal eduatio ouses i
various legal specialities
o It is up to individual lawyers to take advantage and ensure they are up to competence in their practise
Confidentiality
- The confidentiality between a solicitor and his/her client is one of the most fundamental features of the legal
system
- Allows clients to communicate freely and honestly with their lawyers without fear of the lawyer revealing the
information
- Purpose of rule is to allow clients a safe place to tell truth about their cases
- Qualifying as confidential
o Legal advice + between lawyer and client = confidential
- Information that is passed in informal setting usually will not qualify as confidential between the client and the
lawyer
- If the information qualifies as confidential, the lawyer may not reveal it to anyone unless the client consents
Exceptions to the Confidentiality Rule
- The law requires disclosure
o Court orders disclosure
o Statute or doctrine requires disclosure
- Iiet isk of death o seious odil ha
o Disclosure must be the only reasonable way to prevent the harm
o Rule does not REQUIRE dislosue, sas may
Requires lawyers to consider the likelihood of the harm and to consider if there is any other
possible way to avoid the harm short of revealing the confidential information
Rule put the onus on the lawyer as a professional to determine when to reveal the information
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