Table of Contents
INTRODUCTION 2
(Jabour) – Conservatism in Advertising/Power of Benchers 2
Philosophies 3
WOOLLEY on Loyal Advocacy 3
(Neil) – Duty of Loyalty is Fiduciary 3
(Szarfer) – Affair Breached Duty of Loyalty/Acting in Own Interest 4
(Murray) – The Bernardo Case/Minister of Justice v. Zealous Advocacy 4
LUBAN’s Critique on Loyal Advocacy 4
Views on Integrity 5
LAWYER-CLIENT RELATIONSHIP 5
Marketing is in S. 4.2-5 5
(Merchant) – Advertising re: Residential Schools 5
(Stewart) – Self-Aggrandizement 5
Moral Non-Accountability v. Taking it Personally 5
Declining Representation 5
Accessibility of Legal Services 6
Triggering the Relationship – s. 1.1-1 6
Competence – s. 3.1-1/2 6
Withdrawal from Representation – 3.7-1/2/7/8 6
(Richey) – Incompetence as a Pattern of Neglect 6
(Syed) – More Incompetence 6
(Fraser) – Cultural Incompetence 6
Personal Interest in Matter – 3.4-26.1 6
DUTY TO PRESERVE CLIENT CONFIDENCES 6
Critically Important 6
(Descoteaux) – Criminal Purpose Exception 7
(Smith) – Public Safety Exception 7
(McClure) – Innocence at Stake 7
(Goodis) – Disclosure under FOI Legislation 7
(EFA Merchant) – Law Society Powers for Narrow Disclosure 7
(FLSC v. Canada) – Confidentiality in National Security Context 8
LOYALTY AND CONFLICTS OF INTEREST 8
(MacDonald) – Duties to Former Clients (4-3 Majority) 8
(Neil) – Duty to Current Clients/Bright Line Rule 9
(Stother) – Private Interests above Client Interests (5-4) 9
(McKercher) – Reinforcing the Bright Line Rule 9
Ethics in Advocacy 10
Zealous Advocate v. Officer of the Court 10
Pre-Trial Ethics 10
Pleadings 10
(Zellers) – Pursuing Shoplifting Claims 10
Discovery 10
(Grossman) – Frustrating Discovery 10
Ethics at Trial 11
Witness Preparation 11
Cross-Exam 11
Governing Authorities -- 5.1-2 11
Woolley – Advocacy and Civility 11
(Mulroney) – Breaching Agreements and Withholding Information 11
(Laarakker) – Scandalous Letters to Other Lawyers 11
COUNSELLING AND NEGOTIATION 12
Counselling 12
(Sussman) – Counselling a Client to Break the Law 12
Luban Article – Counselling v. Advocacy 12
Negotiation 12
(Regular, NFLD Case) – Deliberate Intent to Mislead 12
ETHICS IN CRIMINAL LAW 13
Cases on the Role of Crown and Defence Counsel 13
Ethical Duties of Crown Counsel 13
Full Disclosure 13
Duty to Call All Material Witnesses 13
Overzealous Advocacy 13
Ethical Duties of Officers of the Court 14
Ethical Duties of Defence Counsel 14
Duty to the Client 14
Defending the Guilty Client without Misleading the Court 14
Custody and Control of Real Evidence 14
Negotiating a Guilty Plea 15
CORPORATE COUNSEL 15
Milton Article – Roles and Concerns 15
Paton Article – Ethics and Integrity/Whistleblowing v. Client Loyalty 15
Rhode and Paton Article – Legacy of Enron 16
(Wilder) – Role of the Securities Commission 16
(Pritchard) – Privilege for In-House Counsel is CASE BY CASE 17
(Potash Corp) – Privilege Only Attaches to WORK IN LEGAL CAPACITY 17
Paton Article – The Future of Privilege for In-House Counsel 17
GUIDE TO THE CODE 17
No Personal Beliefs 17
Officer of the Court 17
Zealous Advocacy 17
Being a Dupe 18
Confidentiality 18
Conflict of Interest 18
INTRODUCTION
(Jabour) – Conservatism in Advertising/Power of Benchers
Jabour advertised his fees and his practice areas
(Rocket) later loosened the restrictions
Benchers have a tremendous amount of power: they are the “guardians of the proper standards of professional and ethical conduct”
Not many restrictions in the Legal Profession Act
Philosophies
Virtue ethics – Aristotelian idea that people have virtues and vices through which they make decisions
Utilitarianism – greatest good for the greatest number, although that benefit can be delayed
Deontological – Kantian view that we need rules, since people are able to reason the best way, and we must treat people as ends, not means
Postmodernism – the world is unknowable; ethics are a personal assessment
Pluralism – there are no common values; we must weigh different values in different contexts
WOOLLEY on Loyal Advocacy
The law attempts to solve our major moral concerns so that even when we disagree, there is a solution
To ignore the law based on a moral objection is to undermine legality all together
This is in contrast to the personal morality view that lawyers need to make choices when their views conflict with the law
If the law permits it, but there is a moral or legal conflict, the final decision belongs to the client
Law creates civil society, and so lawyers need to be zealous advocates when permitted by law because it maintains our society
Any permitted action this becomes morally justified
This may still mean a lawyer takes morally dubious actions, but the lawyer’s proper route is to work them out with the client
(Neil) – Duty of Loyalty is Fiduciary
The duty of loyalty from the time of King George IV endures today because it is integral to the administration of justice and public confidence
A litigant needs undivided loyalty
The duty of loyalty is intertwined with the concept of a fiduciary duty
McLachin disagreed with Binne on this in (Strother), saying that fiduciary duty only applies to what was contracted for
(Szarfer) – Affair Breached Duty of Loyalty/Acting in Own Interest
Lawyer was working with the plaintiff on a personal injury claim, and during that representation, learned of marital difficulties
The lawyer then had an affair with the plaintiff’s wife
Court framed this as the lawyer acting in his own interest and engaging in behaviour that harmed the client, even if it was NOT RELATED to the case
Lawyer also misused confidential information
(Murray) – The Bernardo Case/Minister of Justice v. Zealous Advocacy
Murray was Bernardo’s lawyer, and upon client instructions, he took videotapes from Bernardo’s home
He did not disclose them to the Crown and kept them for 17 months
He said his intent was to use them for the defence, and not bury them
He was narrowly acquitted
LUBAN’s Critique on Loyal Advocacy
Trials often turn into games
We don’t really learn the “truth,” and lawyers often do not want all of the truth on the record
Zealous advocates do not always the best trial make when procedural tricks enter the fray (texts on cross-exams, SLAPP suits)
People would not always help a person act immorally, so why should a lawyer?
It is not enough to act simply because the system mandates it
The problem is that he goes on to accept that the adversarial process is best
He simply suggests that morality should trump
Views on Integrity
Woolley – avoid circumstances where personal and professional responsibilities conflict, such as by carefully choosing clients and being able to accept the consequences when you need to favour one over the other
Farrow – a myriad of interests are at stake, and the best approach is to move beyond the centrality of client interests
LAWYER-CLIENT RELATIONSHIP
Marketing is in S. 4.2-5
(Merchant) – Advertising re: Residential Schools
Lawyer sent Assignments and Retainer Agreements to supervisors of these schools offering to represent them with potential settlement figures, saying they had nothing to lose
The supervisors were angry because they never gave out their info
Calling the retainer a “simple authorization” was misleading
The notion of “losing nothing” did not account for legal costs in the retainer
Also a number of racist assumptions and disregard the potential impact
(Stewart) – Self-Aggrandizement
Lawyer appeared on TV about a former case
When dealing with the media on a former case, one cannot engage in behaviour that is self-promoting or self-aggrandizing
Moral Non-Accountability v. Taking it Personally
Hutchinson argues that client selection is critical because one a decision is made, the ethical die is cast and there is little turning back
Talk to the client, and take your comfort personally
Proulx and Layton suggest that a lawyer should hold a sincere belief in the morality of representation, with little attention to public opinion and personal repugnancy
Declining Representation
Competence – 3.1-2
Dishonesty/Fraud – 3.2-7/8 (one for when client is an organization)
Accessibility of Legal Services
Roy McMurtry, Chief Justice of Ontario, believes that legal access for society’s most disadvantaged is getting worse, not better
Bev McLachlin has the same concerns
Does the administration of justice require that we do pro bono work?
Triggering the Relationship – s. 1.1-1
Competence – s. 3.1-1/2
Withdrawal from Representation – 3.7-1/2/7/8
Generally speaking, though, this will be difficult
A retainer would be a good idea!
(Richey) – Incompetence as a Pattern of Neglect
The case does not rule out a single act being incompetent, but this was a pattern
Failed to move to settlement or a trial, failed to advise of the reasons for not doing so, failed to meet deadline commitments, failed to file documents in a timely manner, failed to commence discovery in a timely manner, failed to respond to communication, failed to have an adequate filing system
(Syed) – More Incompetence
Not enough time interviewing the client or exploring defences, opted for provincial court without informing the client, offered a guilty plea without really examining it, was not prepared for trial if deal fell through
(Fraser) – Cultural Incompetence
Failed to advise a black client that he could challenge jury members on bias given that the victim was white, failed to adhere to the client’s concerns about a white jury, basically just ran it all himself… reluctant to do anything but his perceived way to win every single case, failure to bother with affidavits with what the Crown had, failure to consider witnesses
Personal Interest in Matter – 3.4-26.1
DUTY TO PRESERVE CLIENT CONFIDENCES
Critically Important
Jamal article – SCC has called solicitor-client confidences a matter of high importance
Ethics text – Heart of the lawyer-client relationship; crucial for the public to know that their info is vigorously protected
Proulx and Layton – linchpin of the lawyer-client relationship
(Descoteaux) – Criminal Purpose Exception
Seeking advice to commit a crime, or if the communication itself is illegal
In this case, it was lying about financial state to get access to legal aid
(Smith) – Public Safety Exception
There must be a clear risk to an identifiable group/person
Likelihood that the risk will happen
Long range planning?
Method for an attack?
Prior history?
Is the prior history similar?
Is the violence increasing in severity?
Identifiable group at risk
Group of person must be ascertainable
Group may be large
It must be a risk of serious bodily harm or death
The risk must be imminent
This is very flexible, and will generally be found somehow if the prior two are met
Not immediate; just an urgent need to prevent harm
(McClure) – Innocence at Stake
Need to prove two things on a balance of probabilities:
That the information is not available from any other source (i.e. hearsay evidence from someone else might be fine), and
That he is otherwise unable to raise a reasonable doubt as to his guilt
(Goodis) – Disclosure under FOI Legislation
Court talks about whether disclosure is absolutely necessary to meet the ends sought by the legislation
(EFA Merchant) – Law Society Powers for Narrow Disclosure
Law Society investigated a complaint that a lawyer disobeyed a court order and did not pay funds into the court
He claims privilege over him telling the wife whether the money was paid into court
Absolutely necessary speaks about whether documents should be disclosed, and the Law Society has the power to ask for disclosure of privileged documents
The documents form a narrow and relevant enough scope, given the reasonable grounds, and the fact that they are necessary for the investigation
(FLSC v. Canada) – Confidentiality in National Security Context
Government passed a law requiring, among others, lawyers to obtain personal and financial information that might be used by authorities in investigations
FLSC argued that it breached solicitor-client confidentiality
This infringes the Charter re: principles of fundamental justice
It is contrary to the public interest for the government to pass a law that nullifies confidentiality
Interesting that confidentiality seems to trump some national security efforts
LOYALTY AND CONFLICTS OF INTEREST
(MacDonald) – Duties to Former Clients (4-3 Majority)
A lawyer with a law firm represented Mr. Martin, and of course gathered confidential information
That lawyer moved to another law firm which represented the party opposed to Mr. Martin
The lawyer was not involved in any way with the case, but Martin wants the firm disqualified
There are three conflicting principles: standards integrity of the legal profession, litigant not being deprived of choice of counsel, and allowing for reasonable mobility of lawyers
The test is to ask where a reasonably informed public would be satisfied that confidential information was not used by answering two questions:
1. Did the lawyer actually receive confidential information about the matter at hand?
- This just needs a substantial relationship between the matter where the confidential information came out and the matter at hand: we assume the lawyer then got confidential information unless the lawyer meets a high burden otherwise
2. It there a risk that it will be used to prejudice the client?
- Need more than undertakings not to share
- Need to take independently verifiable steps to avoid sharing
The Code speaks on this now, both law firm disqualification and acting against former clients
(Neil) – Duty to Current Clients/Bright Line Rule
Neil and Lambert got into trouble; a law firm represented Neil, and a lawyer associated with that law firm represented Lambert
Lazin also received confidential information on this file from another client that went against Neil
The bright line rule says that a lawyer may not represent a client whose interests are directly adverse to the immediate interests of another client – even if the two matters are unrelated – unless both clients consent after receiving full disclosure, and the lawyer reasonably believes that he can represent one without adversely affecting the other
However, the remedy seems to be an ethical, not a legal one – proceedings were not stayed
(Stother) – Private Interests above Client Interests (5-4)
A film production company retained a firm to help it take advantage of lucrative tax breaks