September 05, 2019

Lawyer's Daily interviews Gavin MacKenzie about Supreme Court justices returning to practice

In the wake of media attention on former Supreme Court of Canada justices' roles in the recent SNC-Lavalin affair, the Lawyer's Daily interviewed Gavin MacKenzie, among other experts on legal ethics and professionalism issues, about the thorny issues arising from judges' return to legal practice.

Gavin's perspective on the issues was quoted extensively in the article. He noted that none of the judges involved in the SNC-Lavalin affair transgressed any professional conduct rules, but spoke to the challenges of devising an approach to address similar circumstances, including as follows:

“There is a legitimate concern that clients — including governments — may suggest a legal opinion of a former judge is entitled to greater weight because of the author’s status,” said Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional ethics and lawyer regulation. “The difficulty is in defining what should be prohibited to address this concern.”

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MacKenzie noted that if former judges are prohibited from practising law, as they are in England and Wales, “you prevent the potential mischief of clients inappropriately exploiting the prestige of their lawyer’s former office, but you also prevent members of the public and practising lawyers from benefiting from the valuable experience and judgment of former judges.”

In MacKenzie’s view, all ex-judges, including Supreme Court judges, “may be well advised to avoid acting on matters that may subject them to criticism, but I think the concern about harming the reputation of their former court is overstated. Reasonable members of the public understand that sitting judges must be non-partisan, whereas practising lawyers have a duty to advance the interests of their clients.”

August 21, 2019

Gavin MacKenzie recognized in the 2020 edition of Best Lawyers™ in Canada

Gavin was once again recognized in the latest edition of Best Lawyers™ in Canada as a leading lawyer in the areas of Appellate Practice, Corporate and Commercial Litigation, Administrative and Public Law, and Legal Malpractice Law, among others. This is the ninth consecutive year he has received this honour. Best Lawyers in Canada rankings are based entirely on peer review, recognizing the consensus opinion of leading lawyers about the professional abilities of their colleagues in the bar.

August 09, 2019

Ottawa Citizen interviews Brooke MacKenzie about conflict of interest principles

Amid some public concern about a law firm's alleged conflict of interest in advising the City of Ottawa, the Ottawa Citizen spoke to Brooke about the governing principles for lawyers' conflicts of interests. She explained some of the duties owed by lawyers to current clients and to former clients, conflict checking procedures and conflict screens, and the need to consider the particulars of a given situation to assess whether matters are related or unrelated, and concluded: 

...in answering whether there is any potential conflict of interest in a legal sense, there are gaps in information about the relationship between the law firm, the city and SNC-Lavalin, said Brooke MacKenzie, a Toronto lawyer and adjunct professor of legal ethics at Osgoode Hall Law School.

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“On the surface, it’s understandable that the public has questions. But, before drawing any conclusions, we need to get more information,” she said. “Lawyers are generally careful to avoid conflicts of interest.”

May 14, 2019

Brooke MacKenzie quoted in Law Times discussing appeal regarding audio and video recordings in court

Today's Law Times discusses a ruling of the Court of Appeal for Ontario dismissing a self-represented litigant's request to obtain and disseminate audio recordings of her proceeding on her own terms.

The litigant challenged the general rule under s. 136(2) of the Courts of Justice Act that no person may record court hearings nor publish or disseminate recordings of court proceedings without judicial authorization (which is granted only in certain exceptional circumstances), arguing that the open courts principle requires that audio and video recording and streaming be permitted. The Court rejected her request, finding that the litigant's request was, in effect, to create a default authorization for video recording, which would be contrary to the Act. The Court concluded that this private dispute was not an appropriate case for the exercise of its discretion to permit recording.

In the Law Times, Brooke explained that while the Court of Appeal's decision was correct in law, "loosening the restrictions on recordings in court and their dissemination would improve public understanding of the administration of justice". She added, "I think any reform needs to happen at an institutional level through amendments to the Courts of Justice Act and changes to the court’s practice directions, rather than through discretionary decisions seeking exemptions from the general rule".

March 12, 2019

MacKenzie Barristers is hiring

We are looking for an excellent legal assistant to join our team. See the job description linked below for more information.

February 19, 2019

MacKenzie Barristers quoted in Law Times, Lawyers' Daily, and Canadian Lawyer

Last week, both Gavin MacKenzie and Brooke MacKenzie were featured in the legal press. Gavin was interviewed by Canadian Lawyer and the Lawyers' Daily in the context of the SNC-Lavalin affair, and discussed how solicitor-client privilege may--or may not--apply to communications between the federal government and the Attorney General of Canada, depending on the circumstances:

Wilson-Raybould was the chief law officer of the Crown, the government’s lawyer and if the government is seeking legal advice, like a lawyer helping a client with an expectation of confidentiality, those conversations are between them. But the AG has more than one role and in her role in deciding whether to prosecute offenders, the government is not her client and communications with officials about that are not subject to solicitor-client privilege, says Gavin MacKenzie of MacKenzie Barristers and author of Lawyers and Ethics: Professional Responsibility and Discipline.

“In some situations, clients and lawyers communicate with each other for multiple purposes, so the exercise of determining whether specific communications are privileged may require a meticulous review of the communications. Ms. Wilson-Raybould was wise to seek the advice of esteemed counsel to assist in this process,” MacKenzie told Legal Feeds.

Brooke was interviewed on a different issue--she spoke to the Law Times about whether the Law Society ought to amend the Rules of Professional Conduct to impose a duty on lawyers to be competent with technology. She explained her support for the Federation of Law Societies' model commentary on technological competence, while noting that existing Rules (e.g. requiring protection of clients' confidential information) should be interpreted through the lens of modern technology.

January 07, 2019

Gavin MacKenzie appointed to preside over Law Society bencher election

On December 10, 2018, the Law Society of Ontario approved a motion appointing Gavin MacKenzie to preside over the 2019 bencher election and exercise the powers and perform the duties of the Treasurer in the election. Today, the Law Times featured a short article reporting on this development.

December 07, 2018

Lawyers' Daily interviews Gavin MacKenzie on retired judges appearing as counsel

Gavin MacKenzie was quoted in the Lawyers' Daily today in an article entitled, "Ex-SCC judge who co-wrote Dunsmuir weighs in as counsel as top court revisits Dunsmuir's standard of review". The article discusses how the Rules of Professional Conduct applicable to advocacy by former judges are in flux, and there are diverging views about whether a prohibition on retired judges "appearing" in court applies equally to delivering written submissions. 

Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional conduct, said it would be “desirable that the Federation [of Law Societies] amend its Model Code, and that law societies amend their Rules of Professional Conduct, to remove any possible ambiguity in the present rule, and to address the question whether by presenting written submissions to the court a retired judge is ‘appearing as counsel or advocate’ in court.”

MacKenzie explained that the concern is not that a court will be improperly influenced by submissions from a former justice.” It won’t be; it will decide the case based on the arguments of all counsel,” he remarked.

But, he added, “I can appreciate the argument that the policy underlying the rule — the appearance, to lay parties adverse to the retired judge’s client, of possible improper influence — would apply equally to written and oral submissions.”

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