I think Ben's examples are all useful.  In the Canadian context, I deal with

his sixth point in my torts class in light of Toneguzzo-Norvell v. Savein,

[1994] 1 S.C.R. 114, where the SCC considered a trial judgment which

increased the award for the female plaintiff on the basis of the "positive

contingency" that the wage disparity will someday disappear.

To Ben's list, I would also add the conflicting duties (as between insured

and insurer) owed by defence counsel when coverage is an issue.  (My

colleague, Barbara Billingsley, has written on this - see (2000) Can. Bar

Rev. 221-51).

Russ

----- Original Message -----

From: "Benjamin Zipursky" <bzipursky@law.fordham.edu>

To: <Vaughan.Black@dal.ca>; <obligations@uwo.ca>

Sent: Tuesday, November 10, 2009 7:34 AM

Subject: Re: legal ethics

> Your question about how to integrate legal ethics and torts is of great

> interest to me.

> I think there are a number of legal ethics issues that can be brought into

> a torts class, although I confess that I do not integrate them as well or

> as consistently as I think I should.   Here is a sampling of some of the

> tort/legal ethics issues that I think are of significant interest even

> apart from the pedagogical directive you have received.   They are, to

> different degrees, possible and valuable to bring into class.   [N.B. Some

> will cross national borders better than others.]

>

> 1. Duties to non-clients in legal malpractice claims.   It is not just

> intended beneficiaries of wills who now sue lawyers for negligently

> drafting the will.   There is a range of cases, including also those

> providing opinion letters for a transaction in which non-clients are

> involved.   These raise interesting conflict of interest questions in

> legal ethics and they raise interesting questions on the "duty" element of

> negligence.

>

> 2. Duties of candor to the tribunal in settlement of a personal injury

> claim.   The American classic Spalding v. Zimmerman , 116 N.W.2d 704

> (Minn. 1962) is a great case of this nature.

>

> 3. Aggregate litigation and settlement.   This happens to be an issue

> currently of great importance to the American Law Institute and its

> Aggregate litigation project.   As is well known, the asbestos litigation

> in the U.S. has been difficult to bring to any closure because of

> conflicts of interest problems that were said (by the U.S. Supreme Court,

> rightly in my view) to present an obstacle to class certification under

> the Federal Rules.   Less well known, but currently more important, is the

> cluster of legal ethics problems that bedevil lawyers for both sides when

> they try to settle non-class aggregate litigation, like the Vioxx

> litigation.   The big question is whether the system does or should permit

> a plaintiff's law firm that has a raft of 1,000 personaly injury

> clients -- not part of a class -- from making a package deal with the

> defendant without really providing each client any say in whether he or

> she accepts the terms of the settlement.   The obvious answer is tha!

> t this is impermissible, as ethics rules now stand.   The interesting

> question is whether lawyers should be permitted to have their clients

> authorize such settlement in advance (with certain conditions), when they

> sign a retainer agreement.

>

> 4. A variety of questions about the morality of extended motion practice

> and onerous discovery requests and claims of privilege will be more easily

> appreciated in torts case, in my view, than in many other contexts.

>

> 5. There are currently, in the U.S., disputes about whether tort claims

> should be assignable and whether "maintenance" and "champerty" should be

> permitted.   These are also legal profession/ethics/torts issues.

>

> 6. Perhaps this is more political and constitutional than ethical, but I

> think it is of interest to students: should a defense lawyer presenting

> actuarial testimony about diminished (or eliminated) future earnings of an

> injured (or deceased) plaintiff put forward statistics that are

> gender-based or race-based (e.g., plaintiff Smith would not have earned as

> much as a physician as the average in the twenty professional years she

> lost because of the injury defendant inflicted, because women physicians

> earn less than average).   Most defense lawyers will be careful not to use

> such words, of course, but their experts may well provide actuarial data

> that in essence makes the same point.

>

> I hope this is of some help.

>

> Regards,

> Ben Zipursky

> Fordham Law School

> New York, NY

>

>

>>>> Vaughan Black <Vaughan.Black@dal.ca> 11/09/09 10:24 AM >>>

> Colleagues, I would be interested in hearing suggestions of fruitful

> avenues for

> introducing questions of legal ethics and professional responsibility in a

> torts

> course.

>

> When I used to teach contracts I found this pretty easy. For instance one

> might

> identify a contractual term that would be ineffective against consumers

> and

> then raise the question of whether it would be ethical for a contract

> drafter

> to include such a term in a standard-form contract (knowing that some

> consumers

> would read the term and think they were bound by it, even though they were

> not).

>

> The institution I teach at says that I am supposed to bring discussions of

> lawyers' ethics into the classroom in my substantive courses, but in my

> teaching of torts (which mostly involves analysis of appellate cases in

> the

> tort of negligence) I have not found it easy to identify good occasions

> for

> this.

>

> Regards,

> vb

>

>

>

>