May 12, 2020

Brooke MacKenzie's analysis of motions to disqualify counsel published in Queen's Law Journal

The latest volume of the Queen's Law Journal includes a peer-reviewed article by Brooke MacKenzie, sharing her research on motions for the disqualification of counsel in Canada. With the assistance of the OBA Foundation's Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism, Brooke conducted a comprehensive empirical study of 1,283 disqualification motions decided in Canada since the Supreme Court of Canada's seminal 1990 decision in MacDonald Estate v Martin.

 

Brooke's study explores the factors that influence the courts' decision-making in disqualification motions and provides some much-needed clarity in this area. Her article concludes by offering practical guidance for law firms and lawyers to guard against possible disqualification motions.

You can read a full-text copy of the article, "Explaining Disqualification: An Empirical Review of Motions for the Removal of Counsel", (2020) 45:2 Queen's LJ 199, at the link below.

March 16, 2020

MacKenzie Barristers is working remotely due to COVID-19 measures

Until further notice, the MacKenzie Barristers team will be serving our clients remotely; our physical office at 120 Adelaide is currently closed as a "social distancing" measure in light of the coronavirus.

You can still reach us by email or by phone (please leave a voicemail and we will return your call promptly). 

We are proud to have maintained a secure cloud-based system and largely paperless workflow since founding our firm in 2016. Our entire team is set up to work from home and to collaborate as if we were in the office, and we are confident we can continue serving our clients' needs in these extraordinary circumstances.

Best wishes to our clients and colleagues during this unpredictable time. 

March 04, 2020

Gavin MacKenzie quoted in Law Times' article "When can a lawyer withdraw from a case?"

Today's Law Times featured an article about Justice Myers' decision in Cengic v Castro, 2020 ONSC 986, in which he ordered that a lawyer must stay on the record for his client's impending six-week personal injury trial despite the lawyer's allegation that there was "a breakdown in their relationship".

The law firm, which was acting on contingency, had recommended a settlement that was insufficient from the client's view, then sought to be removed from the record because the client wished to proceed to trial, rejecting his lawyer's advice. Justice Myers held that the lawyer's removal would delay the resolution of the case on its merits and prejudice the client, and noted that the client "does not understand why his lawyer wants to desert him as he did nothing wrong. He just wants to finally have his case resolved by acceptable settlement or trial".

 

The Law Times interviewed Gavin MacKenzie about the case:

Gavin MacKenzie, the author of Lawyers and Ethics: Professional Responsibility and Discipline, says Myers offered a good decision. Plaintiffs' lawyers should not take on cases on a contingency basis expecting they will be able to withdraw if it’s not settled before trial, says MacKenzie, who was not involved in the case.

“I think the critical fact here was that the trial was imminent, and that it had been adjourned previously,” says MacKenzie. “You can only contemplate withdrawal if the trial is sufficiently far in the future that the client won't be prejudiced if the client’s required to change counsel. . . . Clients can terminate a lawyer’s retainer for no cause at all. But lawyers don't have that luxury.”

February 13, 2020

Brooke MacKenzie is a Jeopardy! champion

Tonight's episode of the game show Jeopardy! featured a familiar contestant. Brooke not only had the privilege of meeting Alex Trebek and competing on the show, but she became a Jeopardy champion after winning a competitive game.

 

In addition to correctly answering (in the form of a question) clues in categories such as The Civil War, The Horn of Africa, 3/4 of an EGOT, and Se"v"en-Letter Words, Brooke was able to break into the lead with a correct answer in Final Jeopardy about International Literature--and with some good luck hitting a big Daily Double in a category called "Trial Mix", which featured clues about important trials in American history.

You can read more about Brooke's time as a Jeopardy! champion in her interview with U of T News, linked below.

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.”

...

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.

...

“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".

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