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Full PDF of This Issue Our Legal System Included in this Issue: Special Report Public Legal Education Columns Mask Laws & Civil Liberties Door-to-Door Salespersons Model Crowdfunding Statute Released Volume 45-2 November/December 2020 Cover photo by S. Hermann & F. Richter from Pixabay. We would like to thank the Alberta Law Foundation and the Department of Justice Canada for providing operational funding, which makes publications like this possible. © 2020, Legal Resource Centre of Alberta Ltd., Edmonton, Alberta. Operating as: Centre for Public Legal Education Alberta The Legal Resource Centre of Alberta Ltd., operating as the Centre for Public Legal Education Alberta, is a non-profit organization whose mission is to help people understand the law as it affects their everyday lives. We develop plain language booklets, presentations, and other learning materials to help people recognize and respond to their legal rights and responsibilities. We have a variety of programs, and provide legal information and referrals on many topics. For more information, please visit: www.cplea.ca 2 LawNow The contents of this publication are intended as general legal information only. It is not legal advice. Opinions and views expressed are those of the writers and do not necessarily reflect the opinion of the Legal Resource Centre of Alberta Ltd. and/or the Centre for Public Legal Education Alberta. Permission to reproduce material from LawNow may be granted upon request. LawNow is published six times per year. More information is available on our website at: www.lawnow.org Publisher Jeff Surtees Editor/Legal Writer Jessica Steingard Designer Jessica Nobert 3 LawNow October 26th to 30th, 2020 is National Access to Justice Week. And we are celebrating with this issue! Read on for articles about different aspects of our legal system and perspectives on public legal education. 6 Feature Our Legal System 7 Retaining a Lawyer 17 Getting a Fair Say: Adjudicative Kevin Unrau bodies and the duty of fairness Before you become a client of a lawyer, Evan Oikawa you must first retain them. But retaining Administrative bodies play a critical role a lawyer is not always straightforward! in many areas of the law – from human rights to municipal planning to labour 10 The Role of Crown Prosecutors in and employment. our Criminal Justice System Thomas Kannanayakal 20 Good Behaviour and Tenure of Supreme Court Justices in Governments employ lawyers to Canada and the United States prosecute crime. In Alberta, these lawyers are Crown prosecutors. Myrna El Fakhry Tuttle In Canada and the U.S., Supreme Court 13 Access to Justice in Family Law: justices cease to hold office in two A guide to offering limited scope different ways. retainers Tonya Lambert 24 You Have Choices! Resolving family law problems outside of Before a lawyer begins offering limited court scope retainers, they must give due consideration to the matter. John-Paul Boyd We have options for resolving family law problems other than going to court. A lot of really good options, in fact. 4 LawNow 29 Special Report 48 Columns Public Legal Education 49 Consumer 30 Public Legal Education: Unexamined 51 Employment theory constrains practice 54 Famous Cases Lois Gander, QC An interdisciplinary field, PLE draws both 57 Human Rights theory and practice from a host of other disciplines, not just law and education. 59 Law & Literature 35 BearPaw Media and Education: 62 Not-for-Profit Indigenous public legal education in Alberta 65 Youth & the Law Dr. Daena Crosby BearPaw’s resources are for Indigenous people, by Indigenous people in Alberta and include culturally-relevant videos, publications and workshops. Departments 39 A2J and Public Legal Education in 2020 47 Have You Heard? in Alberta Jeff Surtees It is widely stated we have an access to justice crisis in Canada, but responses to it depend on what we think justice and access mean. 43 The Critical Role of Public Legal Education in Societies Governed by the Rule of Law John-Paul Boyd Public legal education programs fill a critical gap between formal access to justice we all enjoy in theory and the practical ability of individual Canadians to meaningfully access justice in their daily lives. 5 LawNow Feature Our Legal System 6 LawNow Retaining a Lawyer Kevin Unrau You have asked your friends, looked at websites and finally settled on a lawyer who seems to be a good fit for your case. But before you become a client of that lawyer, you must first retain them. Unfortunately, retaining a lawyer is not always straightforward. The process involves checking whether the lawyer can take your case and Photo by Olia Danilevich from Pexels defining the circumstances of your working 2. Conflict Check relationship. The steps below identify the process of retaining a lawyer and some things Before a lawyer is retained, they must perform you should consider. a conflict check. A conflict check ensures the interests of the prospective client do not 1. The Prospective Client conflict with duties the lawyer owes their other clients. The information needed to complete Once you connect with a lawyer but before the conflict generally includes: you retain them, you are a prospective client. A “prospective client” is defined as anyone who • Who is the prospective client discloses confidential information to a lawyer for the purposes of retaining the lawyer. A • Who, if anyone, is adverse or potentially lawyer has a duty to keep confidential the adverse to the prospective client, and information they receive from a prospective • What is the general nature of the advice client. the lawyer will be providing. Nevertheless, it is in both your and the lawyer’s If you are not sure whether best interest to minimize the exchange of you need to disclose certain confidential information before the lawyer is actually retained. From the would-be client’s information before you retain perspective, the application and scope of a the lawyer, it is better to lawyer’s duty of confidentiality to prospective withhold the information. clients is not clear-cut. For example, if you do not disclose any confidential information, you A careful balance needs to be struck here. The may not be considered a prospective client. lawyer needs enough information to do the Even if you are a prospective client, any duty of conflict check, but not too much information, confidentiality that the lawyer owes you may in case the lawyer is in conflict. Usually, be overridden in certain circumstances. individuals contacting lawyers provide more information than is necessary. If you are not The lawyer too faces risks by receiving sure whether you need to disclose certain confidential information from prospective information before you retain the lawyer, it is clients. In some situations, a lawyer cannot better to withhold the information. Instead, ask act against a prospective client even if that the lawyer whether information of that general prospective client does not end up retaining type is necessary for the lawyer to complete the lawyer. the conflict check or determine whether they Feature Our Legal System 7 LawNow are able to assist you. The lawyer will be • the platforms the lawyer may use to in the best position to judge whether that communicate with you (e.g. by email or information is needed or if it is better dealt Zoom). with after they are retained. The content and structure 3. Engagement Agreement and Retainer of engagement agreements Assume the conflict check comes back varies widely. clear, and the lawyer is able to assist you. Next, the lawyer and the prospective As a client, you should be comfortable with client will most often enter into a written how the lawyer will manage your confidential engagement agreement that outlines both information and communicate with you. If you of their responsibilities. A well-drafted are not, ask the lawyer for other arrangements. engagement agreement will be written in When completing the engagement agreement easily understandable language and usually you may also be required to provide proof addresses: of your identity, such as a copy of personal • the identity of the client identification or certificate of incorporation. Lawyers are required to collect this information • the scope of services the lawyer will to reduce the risk that their services will be provide used in fraudulent or illegal activity. Lawyers • the fee structure and billing model will ensure that any personal information you provide is treated and stored confidentially. • how the lawyer may communicate with the client, and 4. Client • circumstances in which the lawyer may Having accepted the engagement agreement, withdraw from representation. you have retained a lawyer. Your lawyer now owes you certain duties, including: The content and structure of engagement agreements varies widely. For example, certain • a duty of competence, which involves the lawyers have fixed fees while others prefer lawyer knowing the substantive law and to charge an hourly rate. The lawyer may the general legal principles and procedures also require an up-front monetary retainer for areas in which the lawyer practices, and to ensure they will receive at least some • a duty to avoid conflicts of interest, which compensation for the services they perform. reflects the lawyer’s loyalty to you as a There is no required method for paying client. your lawyer. However, lawyers have ethical responsibilities that may limit their ability to The most practical benefit of retaining a accept creative payment schemes. lawyer is that solicitor-client privilege now protects most communications between you More recently, engagement agreements have and your lawyer. This means a lawyer cannot come to address certain technological aspects disclose these communications without of the practice of law, such as: your instructions, except in very limited • how your confidential information will be circumstances. This privilege is absolute in stored (e.g.
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