I. Source and Context of Lawyers Ethics

I. Source and Context of Lawyers’ Ethics

Chapter 1 Woolley (1) [A]

2. Why Understand Lawyers’ Ethics? (1)

3. Sources of Legal and Ethical Duties (3)

A. The Regulatory Structure: Self-Regulation (4)

B. Codes of Conduct as a Source of Lawyers’ Legal and Ethics Duties (9)

C. Law Society Discipline as a Source (13)

D. Other Sources (13)

E. Purpose of the Rules Governing Lawyer Conduct (15)

F. Integrity Challenge: Professional vs. Personal Morality (17)

Rachels, Ethical Theories [OPTIONAL – thanks Amanda]

II. Legal Profession and Professional Regulation

Chapter 2, Woolley & al., Lawyers’ Ethics and Professional Regulation [T]

B. The Concept of Self-Regulation

C. Practice of Self Regulation

D. Other Regulatory Functions

E. External Regulation

Finney v Barreau du Québec[2004] 2 SCR 17 (SCC) [H]

Law Society of Upper Canada v Burgess [2006] L.S.D.D. no 81 [H]

III. Lawyer—Client Relationship & Practice of Advocacy

Chapter 3 Woolley “The Lawyer—Client Relationship” [C] (45)

1. Introduction

2. Client Selection (46)

3. Lawyer—Client Decision Making and Client Counselling (52)

A. Introduction

B. Lawyer-Client Decision Making (54)

C. Client Counselling (59)

D. Counselling and Unlawful Activity (61)

4. Fees (64)

5. Withdrawal (65)

Chapter 4 Woolley “The Practice of Advocacy” [A]

1. Introduction

2. Lawyer Competence: the Heart of Advocacy (71)

3. Restraints on Zeal (75)

A. Frivolous arguments (75)

B. The rule against “sharp practice” (81)

C. Relevant adverse authority (85)

4. Zeal in Context (87)

A. Discovery (87)

B. Ex parte applications (88)

C. Investigating a Client’s Case – Covert Investigations and Communicating with Witnesses (90)

5. Lawyer Speech (93)

A. Introduciton (93)

B. Public Statements (94)

C. Criticism of Other Lawyers (96)

D. Criticizing Judges and the Legal System (101)

6. Conclusion (104)

R v Murray, [2000] OR (3d) 544 (ON SCJ) [N]

IV. Lawyer—Client Trust and Confidence

Chapter 5 Woolley [A]

“Le Secret professionnel de l’avocat” Jamal & Lussier [T]

Secret professionnel de l’avocat

Privilège relatif au litige (Litigation priviledge)

Smith v Jones, 1999 SCJ No 15 [C]

Szarfer v Chodos, [1986] OJ No 256 [N]

R v McClure 2001 SCJ 13 [A]

V. Conflicts of Interest

Chapter 8 Woolley [H] (215)

1. Introduction

2. Lawyer-Client Conflicts Defined (216)

A. Violations of Duty to Act in Client’s Best Interests (217)

B. Who is a Client? (223)

C. What constitutes informed consent? (227)

3. Kinds of Conflicts of Interest (231)

A. Conflicts relating to the lawyer’s own interests (231)

B. Conflicts between a former client and a new client (232)

C. Conflicts between current clients (233)

D. Third party and multiple role conflicts (235)

4. Why are Some Conflicts Forbidden? (236)

5. The Preventative Rationale (238)

6. The Appearances Rationale (241)

7. Lawyers’ Specific Duties (242)

A. Duties to Former Clients (243)

B. Duties to Current Clients

C. Lawyer-Client Conflicts (272)

MacDonald Estate v Martin [1990] SC J no 41 [N]

R v. Neil [2002] SCJ No 72 [N]

Strother v 3464920 Canada Inc [2007] SCC 24 [M]

VI. Access to Justice

Chapter 10 Woolley re: Pro Bono (p.327-329)

British Columbia (A.G.) v. Christie [2007] SCC 21 [M]

VII. Other (Perjury, Witnesses, Criminal Law)

Woolley Chapter 6, “The Perjury Trilemma” [T]

2. Prohibition of Assisting Clients to Deceive the Court (163)

3. When Testimony Is (or Will Be) Deceptive (165)

4. Lawyer’s Duties Where Client Deceives (or Intends to) a Court (167)

5. Solutions to the Problem of Perjury (173)

b. Withdrawal & Limited Disclosure (173)

c. Disclosure (176)

d. Intentional Ignorance (177)

e. Narrative Testimony (179)

f. Continuing to Represent Client as if Testimony was Truthful (180)

6. Conclusion (182)

Woolley Chapter 7, “Examining Witnesses” [D] (185)

1. Introduction (185)

2. Preparing Witnesses (185)

A. Introduction

b. Law Governing Witness Preparation (187)

C. Why is it Difficult to Prepare a Witness without Coaching? (190)

D. Skill of Effective Witness Preparation (197)

E. Ethical and Effective Preparation of Witnesses (199)

3. Cross-Examination (201)

A. Introduction (201)

B. The Law of Cross-Examination (204)

C. Ethical Cross-Examination (207)

Woolley Chapter 9, “Ethics in the Context of Criminal Law” [T] (277)

2. Prosecutorial Ethics (277)

A. Minister of Justice vs. Zealous Advocate (277)

B. Prosecutorial Discretion (284)

C. Disclosure (297)

3. Defence Counsel Ethics

A. Defending the Guilty (301)

B. Plea Bargaining (308)

4. Conclusion (311)

All credit for this summary is due to the group that put it together. They did an amazing job, and I was lucky enough to have had the chance to work with such a smart and diligent group of people.

I. Source and Context of Lawyers’ Ethics

Chapter 1 Woolley[A] (1)

Thesis of book: “the fundamental legal and ethical obligation of lawyers is to assist clients pursue their goals under and through the law – to be zealous advocates within the constraints of legality.” (p. 1)

2. Why Understand Lawyers’ Ethics? (1)

Violation of lawyers’ legal and ethical obligations results in adverse consequence for the lawyer (disciplinary action, cost sanctions, etc.) and his client.

Lawyers’ ethics of foundational importance (to society, to the practice, to the lawyer him/herself)

Content of lawyers’ ethics

legal rules which determine how lawyers can and must behave.
resolution of moral quandaries faced by a lawyer when she has the freedom within or apart from the rules of professional conduct to choose between different courses of action.
whether a person who does the things that lawyers do can consider herself to have lived a good life: Can a good lawyer be a good person? (p. 2)

3. Sources of Legal and Ethical Duties (3)

A. The Regulatory Structure: Self-Regulation (4)

SELF-REGULATION: statutorily granted regulation power granted to the 14 provincial law societies – the Barreau in Quebec.Membership in these societies is precondition to practice law.

Federation of Law Societies: national coordinating body of the 14 Canadian law societies (low profile, but two recent initiatives: “Approved Law Degrees” and draft of uniform Model Code of Conduct).
Canadian Bar Association (CBA): adovactes for the interests of lawyers.

Self-regulation a good thing?

Independence argument: but self-regulation is not what guarantees an independent profession.
Social contract theory (acting in the public interest in exchange for self-regulation): but law societies have not regulated well enough to always protect the public interest.

B. Codes of Conduct as a Source of Lawyers’ Legal and Ethics Duties (9)

1920 CBA Canons of Legal Ethics

1987 CBA Model Code of Conduct, revised in 2009 for conflicts of interests: a mix of mandatory guidelines and exhortatory ethical precepts. Most provinces adopted it with minor modifications, while Alberta adopted in much more detailed code in 1995.

C. Law Society Discipline as a Source (13)

1. Ethical opinions

2. Disciplinary decisions: show what law societies consider constitutes professional misconduct or “conduct unbecoming” a lawyer. Relatively few, but a useful source.

D. Other Sources (13)

Codes have limited influence, because (i) they are not uniform and (ii) law societies rarely link their decisions to specific provisions in the codes.

Major source: judicial decisions which delineate the obligations of lawyers to their clients, the courts, the legal system, etc.

Also regulation and legislation dealing with other matters but affecting lawyer’s duties, e.g. rules of superior courts.

E. Purpose of the Rules Governing Lawyer Conduct (15)

Socio-economic critics: self-regulation is an assertion of lawyer’s own self-interests.

Woolley’s reponse

public interest in regulating the highly imperfect market for legal services
regulation based on legal and philosophical underpinning: the principle that laywers must be loyal advocates for their clients (paramount durty of loyalty) within the bounds of legality (legality).

F. Integrity Challenge: Professional vs. Personal Morality (17)

How to reconcile role morality with ordinary morality?

Acting according to role morality is consistent with integrity.

lawyer’s role of zealous advocate has a principled justification: it is itself a moral virtue.
within the lawyer’s role remain significant choices she can make with an eye to integrity, the most important of which is client selection(see ch. 3).

In the end, lawyers will sometimes have to choose between professional morality and personal morality: they will simply choose one moral value over another and must take responsibility for that choice.

Rachels, Ethical Theories [OPTIONAL – thanks Amanda]

Utilitarianism

Ultimate principle of utility
Policy selection: which choice has the best overall consequence for everyone concerned
Strive for the “greatest happiness in the greatest number”
Takes the practical necessities of the world into account
However, not always commonsensical:

Unable to account for backward-looking reasons.
Too demanding: it seems to eliminate the distinction between obligatory action and supererogatory actions.
personal relationships: it asks us to be impartial, not placing the interests of loved ones above those of the rest – clearly impossible, not to say morally repugnant
Problems with the closely related notions of rights and justice: pursuing the greatest good brings us into conflict with these values.
character: the ideal utilitarian would be a rotten friend (no loyalty), cold and calculating.

Intuitionism

We have prima facie duties with respect to certain people: 1)duties resting on some previous act of our own, such as the duty to keep our promises and the duty to make restitution for wrongs we have done, 2) the duty of gratitude, 3) the duty of justice, to distribute goods fairly, 4) the duty of self-improvement, to develop our own talents and abilities 5) the duty of beneficence, to act as to benefit others; and 6) the duty of non-maleficence, not to injure others.
Not unified under general principle, not ranked = difficult to solve conflicts.

Rule-utilitarianism (think of as part of utilitarianism)

You select a set of rules that would be good to follow. You do not apply it to particular actions, you only identify which of your general rules you must apply to the situation.

Motive-utilitarianism (think of as part of utilitarianism)

The paradox: asks you to forget about utilitarian calculating, and just do what is best for your loved ones, be the best parent, child, whatever. This is how the greatest happiness for the greatest number will be achieved in the long run, despite you probably making “poor” choices at some points.
The greater good springs from these motives: like honesty, loyalty, faithfulness, love of justice, etc.

The social contract (Rawls)

Reflective equilibrium: disqualify all those judgments made out of pressure, stress, hesitation, keep only the ones made without hesitation. You continue balancing your judgments with your theory until you reach a ‘reflective equilibrium’ between the two. That theory wil be satisfactory.
The rules of justice should be conceived as whatever rules we would accept in special circumstances called ‘the original position’ = an imaginary situation in which we are negotiating with other people about how the basic institutions of society are to be structured. This negotiating takes place when everyone is ignorant of his or her own person qualities and social position = the veil of ignorance. Therefore everyone opts for social arrangements in which everyone is as well-off as possible.
Two general principles would be agreed upon in this state:
Everyone should have the most extensive liberty compatible with a similar liberty for others
Social or economic inequalities should not be permitted unless they work for everyone’s advantage and are attached to positions open to everyone.

→ institutions egalitarian and democratic

Rawls did not view his theory as a general moral philosophy, but an explanation for the constitutional democracy, and only to describe its institutions
To sum it up: the social contract view is that morality is a set of rules that rational people will agree to adopt to further their own interests.
Morality is a rational enterprise

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Kant

Source of morality = the will of the rational, autonomous agent
Constraint: consistency one must act only on principles that he would be willing to have everyone follow as ‘a universal law’)
One must accept absolute views

New Kantians

Interpret Kant in a way that does not lead to absolutes

What does all this discord mean?Thinking “what must we do” is the wrong starting point; Aristotle and other ancients started with character. “What traits of character make one a good person?” → theories of virtue, not rightness and obligation → virtue theory

Virtue theory

Should say what virtue is, which character traits are virtuous, explanations of what these virtues consist in, and why is it good for people to have these traits
Aristotle thought that it was natural for us to form societies, and that these virtues were needed for us to flourish as human beings
Ties in with…feminism. There are some virtues that have been ignored by male bias and his strictly public role on this world. We see the underlying “male” values of impersonal duty, contracts, the harmonization of competing interests, and the calculation of costs and benefits in those major philosophies. Value ethics may be able to balance those values which attach to both the public and private life.
On its own though, there are problems: it seems incomplete.

whya certain character trait is better than its opposite.
If there are two virtues in conflict, which one takes precedence?

There should perhaps be an attempt at combining some of the insights of a virtue theory with the right-action approaches.

II. Legal Profession and Professional Regulation

Chapter 2, Woolley & al., Lawyers’ Ethics and Professional Regulation [T]

B. The Concept of Self-Regulation

Control and direction of an occupational group, lawyers, through rules made by lawyers acting collectively in the form of autonomous governing bodies: law societies.

Self-regulation is undertaken in the public interest to ensure legal services are provided to the public ethically and only by persons qualified to do so.

Self-regulation is a dominant trait of a learned profession, along with:

autonomous governing body
restricted admission into the profession
particular responsibility to client
furtherance of not only an individual but a collective interest

Critical theories regarding professions

Market theory (sociology): self-regulation is not undertaken in the public interest but rather to exclude certain persons from the market of legal services, ensuring scarcity and higher prices than an open, free market.

Some economist have taken a similar view: the need to maintain the quality of legal services is not seen as sufficient to justify the substantial restraints on the market, which drives up prices.

Structural functional approach (more positive): professions is seen as a source of community in an individualist society (shared education, language, etc.). Professions enjoy great autonomy (relatively free from state interference), which allows them to act for the general welfare [this is not empirically substantiated].

Justification for self regulation:
1. Only members in the profession have the knowledge to assess each other’s conduct
2. Only the profession has the necessary autonomy from the state to regulate its members in the public interest.

C. Practice of Self Regulation

Justifications

I. Autonomy and independence from the state: law, as a self regulating profession, will protect individual freedoms from the “pervasive threat of the State”.

Mostly a historical, rhetorical argument: in fact, little evidence to support this.

II. Specialized knowledge required: only lawyers can properly understand the complexity of regulating lawyers.

However, (i) information assymetry is precisely a result of lawyer’s monopoly over the market for legal services, and (ii) expertise can always be acquired if it needed to regulate.

III. Social contract with the State (ideological basis): profession regulates itself in the public interest in return for a monopoly over legal services

Purely fictional — no evidence that such a bargain has even been entered into, or that the profession regulates in the public interest.

IV. Efficient: administrative costs of regulation covered by members and not taxpayers.

However, total costs to society of having a monopolized market for legal service are far higher than the savings of administrative costs.

STRUCTURE

(a) Law societies

They are delegates of provincial and territorial legislatures, constituted and empowered to regulate lawyers in the public interest.

Significant powers of self-regulation, but limited by the statutory grants (what powers the legislature has granted).
Provincial superior courts have supervisory jurisdiction over admissions and discipline decisions.
Government oversight, e.g. inquiries and non-lawyer appointees to the governing bodies of the profession.
Increasing use of legislature to directly regulate lawyerly activity.

(b) Nature and Scope of Self Regulation

Mainly: entry regulation (c) and conduct regulation (d).
Also: insurance funds, continuating ed., lawyer support services, etc.

(i) Pre-admission requirements

- University education in law

historic tension between preparation for professional practice (substantive & procedural law) vs. academic study (indisciplinary study to understand the role of law).
Law societies exert pressure on curriculum but universities retain control.
Strict admission to law programs, and high costs, artificially limit entry into the profession.

- Articling: apprenticeship of 10-12 months under an experienced lawyer.

- Bar examination: not a major obstacle – low failure rate (outside Quebec).

(ii) Good character: only persons worthy of trust, with moral strength or integrity are admitted into the profession and practice.

No established standard: arbitrary and unpredictable
Enforcement is mostly passive, a bit of a simple “formalité”.

(d) Self Regulation of Lawyer Conduct

(i) Codes of Conduct

1920: CBA’s Canons of Ethics: short, mostly commincates a vision of professionalism.

1974: CBA’s Code of Professional Conduct: 17 fundamental principles + commentaries. Mostly aspirational.

1987: substantial revision while retaining aspirational tone.

serves as basis for provincial codes.
only Alberta has a very detailed code with much more mandatory language.

Codes have 2 main functions: ideological (beliefs, ideals, values of legal community) and regulatory (detailed standard of lawyer conduct to serve as the basis for professional discipline — recent increase in these detailed rules, to the detriment of flexibility).

Criticisms:

You cannot regulate ethical behaviour through detailed written rules.
Codes serve the interests of the profession, not the public
Written rules are an ineffective means of regulation – too much variety in the profession.

(ii) Anatomy of Lawyers’ Codes

A. Duties owed to clients, the courts & other lawyers

Competence
Vigorous defense of client’s interests within the limits of the law
Confidentiality
Avoidance of conflicts of interest

B. Duties owed to the profession and society

Integrity
Improvement of the legal profession

D. Other: codes reflect growing racial and gender diversity, for example with rules against sexual harrassment.