Friend of the Court- Actually meaningful or just an expression?

[BlushAndTheBar]

Student here- I understand that when you are in court you are to compose yourself in a dignified manner and are not to behave in a way that is disrespectful to your colleagues, as you are both considered "friends of the court". I recently read on LawTwitter™ that a lawyer has integrated into his practice taking opposing counsel out for lunch before a trial. I was wondering, is dignified behaviour expected no matter where you are across the profession? Or is it just a nice best practice to integrate?

Edited June 9, 2021 by TobyFlenderson
Fixed for dark mode

[StephenToast]

I'm not a lawyer and has nothing insightful to offer, but I do want to point out that that the Supreme Court of Canada has a mascot called the Amicus (Amicus curiae, friend of the court).

[Blurg]

Amicus curiae (friend of the court) is a term with a specific meaning. I believe they’re appointed by the court, and it’s in limited circumstances (I don’t practice family law but that’s where I’ve heard of it coming up most). Aside from that, as a member of the bar at any stage - including student - you owe the Court and opposing counsel respect. This is demonstrated in various ways. For example for the Court, you rise while speaking and stop speaking as soon as the Judge or Master starts speaking, even if they’re interrupting you. For opposing counsel, you stand to object to something they say without actually saying ‘objection’; if you see opposing counsel rise during your submissions you stop talking and sit down to let it be dealt with (only 1 side should be standing at a time). You refer to them as ‘my friend’ when you’re counsel. And you shake their hand at the end of the hearing regardless of the outcome (whether you know the outcome or not). You don’t need to take them out for lunch. But you do need to show respect, no matter your stage but especially as a student.

[BlushAndTheBar]

10 minutes ago, Blurg said:

Amicus curiae (friend of the court) is a term with a specific meaning. I believe they’re appointed by the court, and it’s in limited circumstances (I don’t practice family law but that’s where I’ve heard of it coming up most). Aside from that, as a member of the bar at any stage - including student - you owe the Court and opposing counsel respect. This is demonstrated in various ways. For example for the Court, you rise while speaking and stop speaking as soon as the Judge or Master starts speaking, even if they’re interrupting you. For opposing counsel, you stand to object to something they say without actually saying ‘objection’; if you see opposing counsel rise during your submissions you stop talking and sit down to let it be dealt with (only 1 side should be standing at a time). You refer to them as ‘my friend’ when you’re counsel. And you shake their hand at the end of the hearing regardless of the outcome (whether you know the outcome or not). You don’t need to take them out for lunch. But you do need to show respect, no matter your stage but especially as a student. 

Thank you! Where does this leave members of the bar who do not litigate, but mostly work on transactional matters? 

[chicken]

17 minutes ago, BlushAndTheBar said:

Thank you! Where does this leave members of the bar who do not litigate, but mostly work on transactional matters? 

Search up the LSO rules of professional conduct, particularly the rules on the duty to the legal professions and others, duty to the tribunal, etc. Also see the rules on integrity, courtesy, and good faith. Pretty much the LSO rules mandate that you need to be nice and kind and respectful to everyone, don’t deny reasonable requests ever, and never be frivolous or vexatious. It applies to everything a lawyer does.

Also, friend of the court is a way to be an intervenor in litigation to join the proceeding and make submissions based on you having an interest in the outcome of the litigation. 

 

 

[Blurg]

1 hour ago, chicken said:

Search up the LSO rules of professional conduct, particularly the rules on the duty to the legal professions and others, duty to the tribunal, etc. Also see the rules on integrity, courtesy, and good faith. Pretty much the LSO rules mandate that you need to be nice and kind and respectful to everyone, don’t deny reasonable requests ever, and never be frivolous or vexatious. It applies to everything a lawyer does.

Also, friend of the court is a way to be an intervenor in litigation to join the proceeding and make submissions based on you having an interest in the outcome of the litigation. 

 

 

Amicus and intervenor are somewhat different. You apply to the court to intervene because you have an interest in the case that can’t be addressed by the current parties, whereas the Court appoints amicus to provide it (the court) with arguments on an issue that’s not being addressed by the parties and that the court thinks it needs to hear about. I’ve seen intervenors in far more cases than I’ve seen amicus, although neither is common. 
 

@BlushAndTheBar all lawyers have the obligations mentioned above with reference to the LSO, regardless of if you’re a litigator or do solicitor work. The examples I gave relate to litigation because that’s what I do. You’ll learn about these duties in your ethics course and in the Professional Responsibility section of the bar if you’re in ON, and I’m sure in the equivalent in other provinces.  

Edited June 7, 2021 by Blurg

[BlushAndTheBar]

Thank you all! I haven't taken ethics yet so this is good preparation! 

[BlockedQuebecois]

This conversation all seems a bit off, and I think some of the posts above are blending the concepts of amici curiae (friends of the court) with a lawyers role as an officer of the court. 

All lawyers are officers of the court. They are required to act with with professionalism and integrity, and they have a duty of candour with the court. This paper includes a good discussion of what it means to be an officer of the court. 

Amici is a role. Amici are appointed as "friends of the court" to assist the courts with specific issues. The power to appoint amici is derived from the court's inherent jurisdiction, although it can also be statutory. Justice Karakatsanis, writing for the majority of the Court in Ontario v. Criminal Lawyers' Association of Ontario, stated that "“the ability to appoint amici is linked to the court’s authority to ‘request its officers, particularly the lawyers to whom the court afforded exclusive rights of audience, to assist its deliberations,’".  Both the majority and the minority in that case found that the court can appoint amici whenever it is necessary to resolve an issue before it. 

Generally speaking, amici are appointed with the consent of the parties. The parties also usually agree on who amici should be, with the result being that amici are accomplished members of the bar in the relevant field. Amici are paid for by the Attorney General of the province in which the litigation takes place. 

I think it's fair to say that the most common circumstance where amici are appointed is when the court is resolving claims of privilege where significant rights are at stake (i.e. in the criminal or immigration contexts). Courts often appoint amici to provide submissions on privilege claims where the resolution of the claims has to proceed without the other party or its lawyers. For example, amici may be appointed to assist the court with resolving a claim of informer privilege or solicitor-client privilege between the government's lawyers and the minister of immigration.

With that said, amici can be appointed in various other circumstances, although the appointment is less common in Canada than in other common law jurisdictions (the concept of intervenors regularly fills the role amici often fill in other countries). In G. (C.M.) v. S. (D.W.), 2015 ONSC 2201, an amicus was appointed to assist the court with creating a proper evidentiary basis after the Office of the Children's Lawyer declined to be involved (as the court was not asking for the child's position, but rather asking for assistance with the record). 

There is also some blending of the lines between amicus and... something else. In Criminal Lawyers' Association, both Karakatsanis and Fish (for the dissent) were critical of the practice of appointing amici to fulfill the role of defence counsel in ex parte proceedings. The BCCA recently commented on this, saying that the amici in a case before them was more accurately described as "special counsel" than true amici, since their role was to provide an adversarial context to the ex parte proceedings (R. v. Johnston, 2021 BCCA34). 

As @Blurg mentioned, intervenors and amici are different things. Intervenors apply to the court for permission to intervene. They, generally speaking, are meant to provide a perspective not canvassed by the parties. They pay their own legal fees and are usually limited in their right to make submissions (often limited to merely providing written submissions or very brief oral submissions). 

Edited June 10, 2021 by BlockedQuebecois

[Puddleglum]

In my area of practice you generally refer to opposing counsel as "my friend" some counsel use "my learned friend" for opposing counsel who have a QC. It's not unusual for defence counsel to appear as "friend of the court" when they aren't duty counsel but also arent retained yet on early appearances. I often see this happen where counsel has previously acted for an individual and expects they may be retained on new matters.