Monthly Archives: March 2015

What makes the legal profession a “profession”?

court roomLawyers take pride in being members of the legal profession.  But what does that mean?  What is a “profession”, and why are lawyers considered professionals?

There are plenty of definitions of professions out there, but most of them boil down to sharing these characteristics:

  • Use of a skill and knowledge acquired as a result of prolonged training which enables a person to render specialized services.
  • A sense of responsibility to the public (society) as result of the person’s possession of the specialized knowledge and skills.
  • A sense of group identity and a system of internal (self) administration based on a body of ethics and standards of performance.

Historically, the first recognized professions were physicians, lawyers and religious ministers. Looking at the characteristics noted above, it is easy to see why this was the case.  In the case of lawyers:

  • The knowledge of the law and the skill in its application to a wide variety of circumstances to avoid or resolve problems is gained through training extending for 3 years beyond the undergraduate level, with an additional period of supervised “articling” (akin to apprenticeship) to an experienced lawyer and a lifelong commitment to continuing education and development.
  • The sense of duty to serve those in need of legal advice and representation is deeply ingrained throughout the training and services of lawyers.  This is why most lawyers provide some of their legal services on a pro bono (no fee) or “low bono” (reduced fee) basis.  (For example, at Patriot Law Group we have a long history of providing basic legal services free of charge to World War 2 and Korean War veterans.  (That is part of why we use “Patriot” in our law firm name.)
  • The group identity is maintained through our system of regulation by a Law Society (in Alberta, the Law Society of Alberta) which includes strict standards of performance and a code of ethics (the Code of Conduct in Alberta).

As society has progressed and become more complex, additional professions have been recognized.  For example, all of our lawyers at Patriot Law Group have had earlier careers as commissioned officers in the Canadian Armed Forces, part of the military profession.

Other well-recognized professions today include (to name just a few):

  • Chiropractors
  • Dentists
  • Optometrists
  • Pharmacists
  • Veterinarians
  • Accountants
  • Architects
  • Engineers
  • Professors

So, professions have a long history.  At Patriot Law Group, we take our responsibility as professionals seriously.  We regularly apply our professional experience and knowledge gained as military officers to our work as legal professionals.  We think it makes us better professionals.  It helped us define our approach to everything we do as lawyers:  Do the right thing for the right reason.

Solicitor-Client Privilege – a Principle of Fundamental Justice

When you meet with a lawyer for the first time, the lawyer will likely tell you that everything you say to him or her is confidential.  Have you ever wondered why this is?  Or, perhaps you have wondered how confidential?

Communications between a lawyer and a client are governed by a long-established and special degree of confidentiality which has, in recent years, been elevated to an almost quasi-constitutional right.

The definition of solicitor-client privilege that continues to be used frequently, despite its age, was coined by John Henry Wigmore, an American jurist and expert in evidence.   The definition is as follows:

“Where legal advice of any kind is sought from a professional legal advisor, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.”

Much has been written about the importance of solicitor-client privilege and this short blog post cannot possibly provide a comprehensive analysis,  just a short snapshot.  In the simplest sense, however, solicitor-client privilege is absolutely necessary for the proper operation of our justice system and the rule of law.  This is  because it permits lawyers to provide committed client representation with undivided loyalty to the lawyer’s client.  A lawyer needs to have full and frank discussions with his or her client in order to provide that proper representation.

A recent Supreme Court of Canada decision (Canada A.G. v. Federation of Law Societies of Canada, [2015] S.C.J. No. 7) looked at the importance of solicitor-client privilege in the context of Canada’s federal anti-money laundering regime (which would have required disclosure of client names and certain other particulars in the context of certain financial transactions).   The Supreme Court ruled unanimously that the 2008 regulations requiring this disclosure were unconstitutional as they applied to Canadian lawyers and law firms.

There are only a few, very narrow, exceptions to solicitor-client privilege:  where there is an imminent threat to public safety, or where a party’s “innocence is  at stake.”

In the end, you can be confident that your conversations and communications with your lawyer are highly confidential, and that they need to be.

If you are interested in a comprehensive discussion of solicitor-client privilege in Canada, you may be interested in a paper prepared by Professor Adam Dodek of the University of Ottawa for the Canadian Bar Association.

Legal writing vs. Legalese

You don’t have to look too far to find “legalese” in your life. Look at your mobile phone bill or your iTunes terms of use or the so-called bumper-to-bumper warranty on your car. We really aren’t fans of it, either.

The thing is that not all legal writing is really legalese. Every profession and every industry has its own terminology, jargon and pet phrases. The legal profession is no different. For example, I had never heard or read the word “sedulously” until I went to law school (I  am yet to use it in speech or writing, but I bet it would kill in Scrabble).

Some of the terms we use have a very specific and clear meaning, even though the term may be completely unfamiliar to non-lawyers. For example, in a will, a “per stirpes distribution” has a clear and definite meaning that can save the lawyer from having to write a paragraph of explanation. The problem is that most people need that term explained and this is why we generally prefer the plain language version, even if it takes a little longer to say or write. (Incidentally, our support staff get the double-whammy of hearing both legal jargon and military slang – including the odd bit of jackspeak).

Aside from obscure terms, another complaint about legal writing is that it’s just too wordy. We learned in law school that lawyers are professionally descended from scribes, who were paid by the word. (I assure you that this is no longer the case.) This payment scheme explains how redundancies like “null and void” and “cease and desist” came about.

However, not every long-winded document is chock-full of filler words. We often see real estate deals or separation agreements written from scratch or filled in from a Mad Libs-like online form. The people that bring these in are often surprised to find out that their nice, short document does not do what they want it to do (or may be entirely unenforceable) because certain provisions are missing.  A comprehensively written document, while a bit of a long read, can go a long way to properly identify and protect your rights.

At Patriot Law Group, we are big on clarity. We want to do more for our clients than just deliver a fair result; we want our clients to understand what we’re doing and why we’re doing it, so they will understand what they’re signing and why. This is one of the reasons we prepare plans for our clients and it’s a big reason why we write in plain language as often as possible.

If I had to sum up my thinking on legal writing in two words, I would say, “eschew obfuscation.”

Lien on me …

With some regularity we get questions from clients who are trying to collect on a debt, or who who owe a debt.  We get asked , “Can I slap a lien on his property?”  (Or, if the client is owing the money,  “Can he or she slap a lien on my property?”)

What is a lien?

There are various definitions of a lien.  Very simply, it means a claim that one person has against the property of another person as a security for a debt owed.  The ultimate remedy for an unpaid debt to which a lien has attached is that the property can be sold to satisfy the debt.

The authority for a lien must be rooted in either a specific statute, or the “common law” (the judge-made law that has developed over centuries of court decisions and precedents).

What kinds of liens exist in Alberta law?

There are a large number of liens encountered in Alberta, reflecting the diversity of situations in which a debt can arise relating to specific property.  Liens can apply to either personal property (moveable things) or real property (land).

Here are just a few examples of liens specifically provided by statutes, and some of the circumstances in which they can arise:

  1. Builder’s Lien. Thinking about not paying a contractor who installs new windows for your home?  The contractor can register a lien against title to the home.  This is definitely the most widely known lien.
  2. Warehouseman’s Lien. Have you put goods into a storage facility?  If you don’t pay the storage costs, this lien allows the goods to be detained and then sold if you don’t pay up.
  3. Woodmen’s Lien. Always dreamed of being a lumberjack?  This is your protection:  you have a lien on any logs or timber for the labour or services you provided.  (We actually had one of these recently, which gave me the idea for this post.)
  4. Garage Keeper’s Lien. Don’t have enough money to pay your auto mechanic?  He may just assert a lien and keep your vehicle until you can pay. Not very convenient in this day and age.
  5. Animal Keeper’s Lien. Not able to pay for Fido’s boarding costs at the end of your vacation? Pay up or the Kennel operator may use this lien to sell Fido to satisfy the debt.
  6. Wharf Keeper’s Lien. Wait … what? Yes, if you keep your boat at a wharf and do not pay the applicable fees, the Wharf Keeper can detain your boat until you pay up.  (This is actually one of several types of lien covered by the Possessory Liens Act.)

How can you put a lien on someone’s property?

Putting a lien on another person’s property should not be done lightly.  There are strict requirements that must be in place, and often specific documents must be used and specific processes must be followed.

There are also strict timelines to be observed.

Failure to observe timelines or necessary procedures can result in the lien being lost.

The overall message is that while liens are a powerful mechanism to use to enforce payment of a debt, great care is required or it can back-fire on you and you can end up at the wrong end of a lawsuit for unlawfully asserting a lien.

What should you do if a lien has been asserted against your property?

This one is simple:

  1. If you don’t dispute the debt that the lien is attempting to enforce, pay it. The property must then be returned to you (or in the event of a lien registered against your land, the lien must be discharged).
  2. If you dispute the debt, get some legal advice. As indicated above, the law relating to liens can be very technical.  So, go to the technical expert in the law:  your lawyer.