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  • Cameron Fiske

Should Canadian Federal Courts have their own Bar?


It is common knowledge that in the United States all lawyers must not only be admitted to the Bar of a State or Territory, but they must also be admitted to the Bar of a United States District Court or United States Circuit Courts of Appeal if they wish to practice in those courts. Further, all lawyers who appear before the Supreme Court of the United States must be admitted to the Bar of that Court.


In contrast, in Canada, one need only be called to the Bar of a Province to appear in a federal court.


One problem with not having Bars for Federal Court is a lack of uniformity of standards. According to section 11 of the Federal Court Act, any lawyer admitted to the bar of a province can practice before the Federal Court. Further, section 22 of the Supreme Court Act says more or less the same thing.


In theory and in practice, it would appear then that you can have two different lawyers arguing against each other before a Federal Court, or the Supreme Court, who are members of different Law Societies and who are then subject to their own provincial Rules of Professional Conduct.


These Rules of Professional Conduct may well have different standards. As an example, not all provincial bars have the same requirement that Ontario does in 3.2-A and 3.2-B to advise clients of their right to proceed in French or English (and in each province such rights vary in any event). A uniform Rules of Professional Conduct for a Federal Court or the Supreme Court would alleviate such a problem.


There can also be some conflict in terms of right to practice. As an example, the Law Society of Ontario issues L3 licenses to Quebec lawyers who have not written the Ontario Bar exams. The L3 license allows Quebec lawyers to be called to the Law Society of Ontario but on a limited basis, i.e. solely to appear on federal matters in Ontario. The Barreau du Quebec also has a Canadian Legal Advisor license that allows common law lawyers to be admitted to its Bar without writing bar exams, albeit they must pass the Office québécois de la langue française exam so as to appear in Quebec courts on federal matters. With that said, such requirements would seem to be in contrast to section 11 of the Federal Court Act which does not appear to put any territorial restriction on the right of lawyers to practice before it so long as they are called to any Canadian Bar.


Of course, it goes without saying that one of the downsides of implementing the American system in Canada would be that the creation of a Federal Court Bar and a Supreme Court Bar would lead to a lot of red tape and expensive bureaucracy. Not to mention inevitable conflict over the separation of powers between provincial law societies and federal law societies.


It may well be that the best solution, assuming that there is any problem at all, is for Canadian federal courts to create their own Rules of Professional Conduct that lawyers would be subject to.


Given that there is very little emphasis on federal court procedure on provincial bar exams, it may also be a good idea to either include such procedure on provincial bar admission exams, or it may be valuable for federal courts to heed the example of the United States District Court for the Southern District of Texas, which requires all attorneys appearing before it to take a one-day course on procedure in federal court (https://www.txs.uscourts.gov/page/attorney-admissions-requirements). This way the Canadian federal courts and their practices are not such a mystery to new lawyers.

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