The Civility in Action column is jointly presented by CBA Alberta and the Law Society of Alberta. Members of the legal community are invited to submit questions anonymously on anything and everything related to civility. If your question is chosen, Law Society Practice Advisors will respond in a future article in this series.
In the second article in this series, we look at best practices for communicating with the court in several different contexts.
Civility in communication is one important aspect of professionalism in the courts. After the first installment, several lawyers wrote in with questions on this point. Those inquiries highlighted the connection between communication and civility. Some lawyers felt another lawyer had improperly communicated with the court and saw that as a sign of disrespect. Other lawyers were trying to navigate accommodation needs while protecting confidentiality and privacy where sensitive personal circumstances were involved.
It is important to keep civility front of mind in all our communications. The clear provisions in the Code of Conduct (Code), and directions from the court regarding when and how to write to the court, reinforce our duty to be civil. These communications may end up before the court or the Law Society of Alberta. Sometimes, lawyers need to disclose sensitive personal information to seek accommodation. Maintaining civility can help prevent emotionally charged responses and support more constructive dialogue.
Rule 5.1-2B of the Code requires fair notice to the other party (or their counsel) when a lawyer communicates with a court or tribunal. This means including the other party unless the matter is properly proceeding ex parte or they have been advised of the content. A best practice is to share draft correspondence with opposing counsel and invite feedback. Once agreed, counsel can send a joint letter. This promotes civility and respects judicial resources by avoiding multiple competing letters.
The Court of King’s Bench has also provided direction on communicating with the Court. Communication should be on the record or copied to the other party.
Some lawyers expressed concern about appending communications between counsel as exhibits to affidavits. Care should be taken to ensure only relevant information is included. If such communications become evidence, lawyers may need to withdraw as counsel (see Rule 5.2-1). Lawyers are generally not required to keep these communications confidential from clients or the court, and often must share them. It is best to assume communications may be seen by the court.
Sometimes lawyers require adjustments to court processes to reduce barriers. This may include timeline changes, assistive technologies, or other modifications. Some lawyers feel uncomfortable sharing personal information to request accommodation, which can create vulnerability and trust concerns.
The Court of Appeal offers a confidential process for requesting accommodation: News and Announcements. In other courts, lawyers may need to write to request accommodation, balancing privacy with procedural obligations.
Some requests may be administrative and not require notice to other parties. However, lack of awareness can affect perceptions of fairness. Lawyers can provide general notice of their intent to seek accommodation without disclosing sensitive details, helping maintain trust and transparency.
If you have a question or scenario you’d like us to consider for inclusion in an upcoming column, you may submit it anonymously via the Law Society of Alberta website.
