SBM Blog

Ontario Court of Appeal Denies Extradition Based on U.S. Torture

In a unanimous opinion, the Ontario Court of Appeal has upheld a decision to stop extradition proceedings for an alleged Al-Qaeda arms supplier, Abdullah Khadr. Khadr, a Canadian citizen, is the  the older brother of Omar Khadr, the youngest Guantanamo detainee.  Omar was sentenced to 40 years in prison last fall after pleading guilty to acts committed in 2002, when he was 15.  According to an AFP story, their father, Ahmed Said Khadr, who was killed in Pakistan in October 2003, was described by U.S. military analysts in Wikileaked documents as "a senior Al-Qaeda financier and reportedly the fourth in command underneath Osama bin Laden in the Al-Qaeda organization."

The Attorney General of Canada argued for extradition on behalf of the United States, whose case  centers around statements Khadr is alleged to have made in 2005 to the FBI and the Royal Canadian Mounted Police about being involved in an assassination plot against the prime minister of Pakistan. Khadr claims the confessions were false and were made while he was being tortured and threatened with harm to his family. 

The National Post says that the Canadian federal government has 60 days to decide if it wants to seek a leave of appeal to the Supreme Court of Canada.

An Appetite for Justice: Judge's Stomach May Affect Verdict

At least in Israel, that's what the evidence seems to suggest. A story in the Toronto Globe and Mail says that research based on over 1,000 rulings by Israeli judges in parole hearings shows that 65% of rulings were in the prisoner's favor at the start of a day's session, but for rulings near the end of the morning session the percentage dropped to nearly zero. After lunch, the favorable rulings jumped back to the 65% range, then steadily declined throughout the afternoon. 

HT: Slaw

Painting: La plaidoirie, Honore Daumier

This Week in Cyber Scares

First came the news of a gigantic security breach potentially exposing millions of customers of such giants as Citi, Chase, Target and Walgreens to phishing scams.  Then this: The Toronto Globe and Mail reports that at least four Canadian law firms have been hacked over the last seven months in what looks like attacks originating in China and aimed at destroying data or stealing information concerning impending mergers and acquisitions.  As if mergers and acquisition work wasn't stressful enough already.

When a Justice's Last Word on a Case Isn't His Last Word

According to Legal Ethics Forum (LEF), there's the makings of an uproar going on up north over a retired Canadian Supreme Court justice offering a legal opinion on the meaning of two opinions in which he was involved as a justice. The issue on which he is opining on behalf of the Canadian Bar Association (and in opposition to the Federation of Law Societies) happens to be lawyer ethics in Canada, but his involvement raises another ethical issue: whether he should be rendering a "legal opinion" from retirement commenting on the meaning of an opinion in which he participated.  Here's an example of his commentary:

As you are aware, I sat in that case and sided with the Chief Justice. The differences of opinion between the majority and the minority are more important than noted by Professor Cotter. First, we, of the minority, were of the opinion that the majority wrongly refused to accept some findings of fact that were determinative of the extent and duration of the mandate of the law firm and of Mr Strother in particular. Second, we were not satisfied that the majority applied Neil correctly; in particular, we could not see how the majority could conclude in Neil that the duty of loyalty is that “of the firm” and find in Strother that the firm had not breached that duty because it had no knowledge of the personal interest of one of its partners. The main point of disagreement was of course the application of the fiduciary duties. We were of the view that those duties are not meant as an expansion of the mandate set out in the retainer; we thought that they cannot be used to impose a new implied retainer, but that they are there to define the obligations (explicit and implicit) in carrying out the terms of the retainer. If the retainer was truly finished, there was no duty to act for the former client and give advise on new tax provisions. There was nothing to correct regarding past advice based on different legal provisions. The majority itself accepted that Sentinel was not acting in any way adverse to the interests of Monarch. The personal interest of Strother in Sentinel was a business interest acquired after leaving his law firm and the business was new, in the sense that it responded by way of a new scheme to new tax regulations and was built upon an operational model developed by Paul Darc, not Strother.

A comment to the LEF suggests that retired American judges opining on the meaning of their opinions is no big deal:

[I]n the U.S., a retired judge (or sitting judge, for that matter) can talk until she is blue in the face about what she meant in an opinion, and the reaction would be either: (1) [the snarky version] if that's what you meant you should have written it more clearly, or (2) [the more sophisticated version] once you've issued an opinion it's no longer under your control, so to speak, but belongs to the interpretive community of the profession as a whole, who can use all of the tools at their disposal to affect its received meaning.

Really? While I don't doubt that the U.S. reaction would be precisely what the commenter suggests, I don't think that his hypothesis has really been tested.  Readers, if you know of retired U.S. judges opining on opinions they've rendered or participated in for the purpose of influencing public policy on the issue, please chime in.

"Ghostblogging": Just Say No

The ABA Journal quotes a Canadian legal consultant as saying that blogging by a firms' lawyers can be a good marketing tool, but make sure that lawyers, not professional writers, are creating the blog content.  Professional editors are fine, though.  See also  "Are Ghostwritten Lawyer Blogs Unethical?".

Are the English Dumping the English Rule?

After decades and decades of listening to calls for the U.S. to adopt the "British rule" that requires the loser in a lawsuit to pick up the winner's costs, here's a switch.  The Ethical Lawyer, Canadian Franco Tarulli, says that the UK’s Justice Secretary, Ken Clarke,  told the BBC that he is thinking about reforming the system so that part of a plaintiff’s legal fees will be paid out of the plaintiff’s award.  Until now, he says, the Brits have held it to be wrong in principle to use the plaintiff’s award of damages to pay the plaintiff’s legal fees. Tarulli himself is partial to the Canadian approach, where the lawyer’s contingency fees are usually taken from the plaintiff’s damage award, with recovery against the defendants for costs according to a tariff, and the  rule applies even for the expenses of motion practice.

Miranda Doesn't Have a Canadian Translation

The Canadian Supreme Court last week declined, 5-4, to adopt a Miranda-style requirement of right to counsel during police interrogation under s. 10(b) of the Canadian Charter of Rights and Freedoms. Instead, a dissenting Justice wrote, the standard appears "that an individual (presumed innocent) may be detained and isolated for questioning by the police for at least five or six hours without reasonable recourse to a lawyer, during which time the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell, in an endurance contest in which the police interrogators, taking turns with one another, hold all the important legal cards."  Au contraire, said a Justice in the majority:

This interpretation of s. 10(b) does not give carte blanche to the police as contended.  This argument overlooks the requirement that confessions must be voluntary in the broad sense now recognized by the law.  The police must not only fulfill their obligations under s. 10(b), they must conduct the interview in strict conformity with the confessions rule.  In defining the contours of the s. 7 right to silence and related Charter rights, however, consideration must also be given to the societal interest in the investigation and solving of crimes.  Any suggestion that the questioning of a suspect, in and of itself, runs counter to the presumption of innocence and the protection against self‑incrimination is clearly contrary to settled authority and practice.  The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime.  While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone. 

Here's the opinion.

Evolution of Law Practice: The DuPont Legal Model and Michigan

From Canada, FP Legal Post declares the model that DuPont has been using for 18 years to choose which external law firms to use for its legal needs a success. The model, according to the post, is premised on four elements: strategic partnerships, where the parties invest in each other’s financial success; technology utilization to drive collaboration, improve efficiency, eliminate duplication and measure results; alternative fee arrangements (50% of arrangements are beyond billable hours); and commitment to diversity.

According to the interactive map at dupontlegalmodel.com, there are five Michigan firms used as outside counsel under the model: 1) Dickinson Wright, 2) Dickinson Wright, 3) Dickinson Wright, 4) Dickinson Wright; and 5) Dickinson Wright.

What Does It Take for A U.S. Lawyer to be Licensed in Canada?

Here's a good, practical summary from someone who's done it and is willing to share the details. Bottom line: It's a long and complicated process.  But the Canadian blog slaw, in Canada - the Best Kept Secret in the U.S., speculates that, given the trend of U.S. physicians relocating to Canada, U.S. lawyers might be increasingly interested in making the change:

We have far less new law graduates in Canada looking for jobs. Unlike the U.S., we haven’t had massive lay-offs of lawyers from major law firms. Canadian recruiters I’ve spoken to have described more of a massive hiring slow-down. But could some of these hires be American counsel seeking greener pasture north of the border? Could we could eventually see a similar trend here in the legal industry?

Mystery Writers Take Note: Scotland Poised to Abolish Rule Against Double Jeopardy

All you fans of English mysteries and crime thrillers may be surprised by these developments:  England and Wales, while we weren't looking, cut back the double jeopardy rule in 2003.  Scotland looks to be next.  Canada still has the rule, but a prosecutor can appeal a verdict of acquittal.

HT: slaw