INTRODUCTION

Sources of Legal Ethics

  1. Case law Legislation – i.e. negligence, fiduciary obligations, conflicts of interest, taxation of lawyers’ accounts, civil and criminal procedure, solicitor-client privilege, civility, judicial behaviour, status of the legal profession
  1. Rules of Professional Conduct – CBA’s Model Code of Prof Conduct; Federation of Law Societies of Canada’s 2009 Model Code of Prof Conduct (most prov. law societies in process of adopting a version of the FLSC Model Code)
  1. Law Society Discipline Decisions – incl. definition of professional misconduct (when practicing law), conduct unbecoming (outside legal practice); disciplinary decisions set out standard of proof and sorts of sanctions
  1. Available on LSBC website
  2. May be reviewed/varied by courts
  1. Principles or “norms” of lawyering – scholarly writing by academics and lawyers; pursuing a “life well lived” (when gap b/w obligations imposed on lawyers by law and ordinary morality, code needs to help guide lawyer’s response to that gap – i.e. whether to disclose info that relates to potential harm to 3rd parties)
  1. Requires ability to identify that ethical issue has arisen (intuition)
  2. Requires judgment to respond to ethical issue appropriately
  3. Requires motivation/courage to put response into action

Philosophies  How to think about “Normal” Ethics

  1. Virtue ethics – Aristotelian idea that people have virtues, i.e. compassion, fairness, dignity (and vices) that point them towards (or away from) ethical conduct; though also requires practical judgment to apply virtues to situation
  1. Utilitarianism – greatest good for the greatest number (or least harm to the fewest number), society is best when overall human interests are maximized; rests on belief that human nature is to maximize self-interest; consequentialist; this is more a way of judging whether decision is ethical, not a means of reaching ethical decisions (as impossible to assess consequences of one’s actions in advance)
  1. Kantian/Deontological – rule-based; humans have capacity to reason: freedom of choice and action; we must treat every person as an end, not as a means of exercising your own free will.
  1. Postmodernism – sees world through the lens that people can’t be removed from their desires and impulses (contrary to Kantian); ethics are subjective assessment which d/maker must take responsibility for and justify
  1. Pluralism – there are various values, and various ways to identify which are important; attempts to find unifying values impossible; we must weigh different values in different contexts

What is an “Ethical Lawyer”? Competing Conceptions

1. Loyal Advocacy

Loyal Advocacy = “a fundamental duty of a lawyer is to act in the best interests of his or her client to the exclusion of all other adverse interests, except those duly disclosed by the lawyer and willingly accepted by the client” (SCC, Strother at para 1)

Imposes obligations on lawyer:

1)place interests of the client above those of other people;

2)place interests of the client above her own

Purpose:

  • Maintaining person’s autonomy from improper state interference requires every person right to access the justice system (which is done through lawyers)
  • Lawyer cannot provide meaningful help w/out being loyal to client’s interests
WOOLLEY’S “In Defense of Zealous Advocacy” – client’s interests always first

Re. the Personal Morality Objection:

  • The law attempts to solve our major moral concerns so that even when we disagree as to what is moral, 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

Re. the Morality-of-Law Objection

  • If the law permits it, but there is a moral or legal conflict, the final decision belongs to the client

In defense of the Lawyer as Resolute Advocate

  • Law creates civil society, and so lawyers need to be zealous advocates when permitted by law because it maintains our society
  • If lawyers make decisions for clients, rather than using law to assist clients to make decisions, they’ve usurped the function of the law to resolve disagreement
  • Lawyer must learn to live with moral complexity
Duty of Loyalty comes from Fiduciary Duty

R v Neil (2002 SCC): Duty of Loyalty is Fiduciary Duty

Facts
Held / - The duty of loyalty from the time of King George IV endures today because it is integral to the admin. of justice and public confidence in the system (a litigant needs undivided loyalty)
- The duty of loyalty is intertwined with the concept of a fiduciary duty**
- Duty of loyalty engages 3 dimensions:
1) duty to avoid conflicting interests
2) duty of commitment to client’s cause (“zealous representation”)
3) duty of candour

R v Strother (2007 SCC):

Held / Majority: Binnie, J. said that fid. duty obligations may “go beyond what parties bargained for”
And Duty of loyalty to client may arise under K, but more obviously arises under fiduciary obligation. It is not exhausted by the lawyer’s duty to provide proper representation or the obligation to avoid conflict with other clients  must also avoid personal conflicts (page 314).
Dissent: McLachlin, CJC said that fiduciary duty only applies to what was contracted for

Szarfer v Chodos (1986 Ont HCJ): Affair breached duty of loyalty and conflict of interestConduct unrelatedto case can result in professional discipline.

Facts / S was C’s lawyer on personal injury claim; during the representation, learned of marital difficulties
Lawyer then had affair w client’s wife.
Held / breached duty of loyalty, and fid. duty; had conflict of interest; committed prof. negligence
Duty of Loyalty:
Lawyer acted in his own interest and to personal benefit; engaged in behaviour that harmed client  breached conflict of interest rule
… even if NOT RELATED directly to case
Lawyer did not discharge onus that he acted reasonably
Confidential Info:
S also misused confidential info (the marital problems) for his own benefit
 lawyer was in breach of prof. duty to client, this breach was cause of client’s post-traumatic neurosis; breach constituted prof. negligence and demonstrated an unreasonable lack of skill and fidelity in his prof. and fid. duties as lawyer

2. Lawyer as Moral Agent in Pursuit of Justice –moral should win in conflict with professional

R v Murray (2000 Ont SCJ)  obstruction of justice?

Facts /
  • M was Bernardo’s lawyer; upon client instructions, he took videotapes from Bernardo’s home
  • He did not disclose them to the Crown and kept them for 17 months
  • Received advice (from having colleague ask hypothetical q to Sr. lawyer) that didn’t need to assist in Homolka prosecution (i.e. disclose tapes)
  • He said his intent was to use them for the defence, and not bury them

Held / M narrowly acquitted of obstruction of justice (didn’t have necessary MR)
  • Suggests that lawyer that focuses solely on his client’s interests may improperly lose sight of other moral issues

Notes / The defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence or by producing documentary or physical evidence.
What should a lawyer do in that situation? (1) Turn tapes over to prosecution either directly or anonymously; (2) Deposit them with TJ (3) deposit property with court to facilitate access by the prosecution or defence for testing or examination (4) Disclose their existence to prosecution and prepare to do battle to retain them (see FLSC model code below)
BC code 5.1-2 / Lawyer as Advocate (when acting as an advocate, a lawyer must not:
(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;)
LUBAN’s “The Adversary System Excuse” (2007) (Critique of Loyal Advocacy)

Justification for adversary system and L’s counter-arguments:

1. Truth: “adversarial system is best way to uncover facts”

Luban: Trials often turn into games; trial lawyers try to keep unflattering facts out of the record, or to avoid trial (procedural delays, intimidation tactics), SLAPP suits to scare away plaintiffs  We don’t really learn the “truth,” and lawyers often do not want all of the truth on the record

2. Ethical Division of Labour: “the other side had a lawyer too”

Luban: Other social roles exist to counteract what may look like a lack of morality  Could result in everyone abdicating moral authority, waste of resources, adversary system attempts to evade the system of checks-and-balances rather than comply with it

Non-consequentialist justifications of adversary system:

1. Adversary Advocacy as Intrinsically Good: “providing legal services is intrinsically good” and “lawyers are like friends” analogy

Luban: People would not always help a friend act immorally, so why should a lawyer?Not enough to say result is b/c of institution (“institutional” rather than “personal wrongs”; legal levers are pulled by the lawyer, no one else can do it

2. System is valued tradition and integral part of social fabric:

Luban: Role-obligation is simply a “good soldier” argument

Summary of Luban’s crtiques of Adversarial System/Zealous Advocacy:

Blanket policy of adversarial ruthlessness as institutional excuse is only available in criminal and quasi-criminal defense

Moral standards for lawyers and non-lawyers should be the same (role of lawyer doesn’t carry w it moral immunities)

Adversarial system justified only b/c better alternative to replace it w doesn’t exist

When moral and professional obligations conflict, moral should take precedence; when they don’t, professional obligations should win out

3. “Integrity” or “Sustainable Professionalism” – middle ground

FARROW’S “Sustainable Professionalism” (2008)

Middle ground b/w Loyal Advocacy and Moral Agency

Service of “the world of our future” rather than “all the dead generations”

Plurality of interests:

  1. Client interests
  2. Lawyer interests
  3. Ethical and professional interests (of lawyers and the profession)

“Last lawyer in town” scenario (clients w unpopular cases won’t be able to find lawyer) objection addressed with proper representation of plurality of voices in legal profession

  1. Public interest

Current, dominant model privileges clients’ interests; we need to acknowledge complexities of often competing interests, not live in a world of fictional simplicities

Woolley/Farrow Views on Integrity

Woolley – incorporate integrity into ethical d/making as a shift in content of professional role

avoid circumstances where personal and professional responsibilities conflict (carefully choose clients and be able to accept consequences when you need to favour one over other); acknowledge, take responsibility for decision

Farrow – incorporate integrity into ethical d/making to address moral conflict created by professional role

a myriad of interests are at stake, and the best approach is to move beyond the centrality of client interests, acknowledge plurality of interests (dominates current adversary model)

LAWYER REGULATION IN CANADA

Concept of Self-Regulation

Control, direction or governance of identifiable group by rules and regs det’d by members of group (regulation of lawyers by lawyers)

Undertaken in public interest to ensure legal services provided to public ethically and competently by only those ppl qualified to do so

Lawyers enjoy “monopoly”

  • Only lawyers admitted to profession by LSBC can practice law, separates it as a “profession” from “less privileged occupations or workers”
  • Other characteristics of legal profession:
  • Autonomous governing body
  • Mastery of specialized field
  • Restriction on admission
  • Responsibility to a client
  • Provide important services
  • Furtherance of public interest

Perspectives:

1)Market approach (exclusionary strategy): profession constructs market, limits/controls number of producers, qualify producers (exclusionary process)  keep service prices higher than would be in free market

2)Economists approach: Restraint on free market = increased costs to consumers/unfair to competitors (isn’t justified with “needing to ensure quality services” excuse)

3)“Structural functional” approach: Professions are important contributors to order/stability in society

Rationales for self-regulation (w counterarguments):

1)Historical argument – Bar evolved sep. from govt; exercises resp. of its own making; independent bar = independent bench; necessary in free society; Rule of Law (Canada (Attorney General) v. Law Society of British Columbia, 1982, SCC)

Little evidence to support this view, and Bar has regularly oppressed disfavoured minority views, races, religions (i.e. LSBC didn’t admit someone associated w communism)

2)Specialized Knowledge – only others w specialized knowledge and expertise can effectively reg. their peers (Law Society of Manitoba v. Savino, 1983, MB CA)

Underlying informational asymmetry b/w lawyers and public is supported by the monopoly over legal services and can be addressed by providing more info to clients/consumers. Govts/3rd parties can regulate effectively if they can acquire/buy the necessary info.

3)Social contract w state (state will permit monopoly if lawyers reg. in Public Interest) – independence or autonomy from statue necessary to regulate members… really just attempt to provide ideological basis for what exists.

No support that this type of bargain was ever entered into & lawyers haven’t always acted in PI *WEAK

4)Efficiency – costs covered by fees, not taxpayers

Admin costs pale in comparison w total costs of lawyers self-regulating caused by disruption of market principles *WEAK

UK: lawyers no longer self-governing, but governed by govt agency; some worry this could ruin profession (govt of the day may ban certain ppl from practicing, i.e. communists)

Structure of Self-Regulation

Regulatory Framework in Canada

No federal head of power; prof. reg. falls under Property & Civil Rights (s.92(13))

Despite over-arching principles of self-governance, prov. and fed. govts can exert some reg. influence (i.e. enact laws that require lawyers to report certain conduct, like LPA)  this has diminished self-reg. in recent years

Each province has their own Law Society but increasing collaboration in prof. governance through FLSC

LSBC / FLSC / CBA
Authority / Statutorily-constituted: created by BC govt (BC Legal Profession Act)* / Assn. of the prov. empowered regulators / National org., but each prov. has its own branch
Focus / Governing legal profession in BC in the PI (done by councils elected by prof.)
protects profession (not necessarily lawyers), governs lawyers, mandatory membership in order to practise in prov. / Focus on est’g common standards / Less on PI; more on advocating for legal profession (promote interests of lawyers), voluntary membership
Specific initiatives / See below. / Facilitates mobility b/w provs; initiatives in legal education, ethics, admission, discipline
  • Very active
  • Has many national initiatives
  • Approves Canadian common law programs
/ Law reform, interventions, reports.
  • Has BC sections
  • Professional development
  • Student membership

Work product / BC Code of Professional Conduct (binding) – fills in framework provided by LPA (like rship b/w statute & regs) / Model Code has more reg. heft than BC Code of Prof. conduct & CBA’s Canons of Legal Ethics
  • Also creates national discipline standards
/ Canons of Legal Ethics (Text p 85) and Code of Conduct (not binding but may be persuasive)
Oversight /
  • Admissions & discipline decisions subject to supervisory jurisdiction of sup. cts in each prov.;
  • Sometimes desired regs. subject to leg. approval;
  • Delegation of authority and exercise may be challenged on Charter grounds
/ ~Member assns. / ~Members.

Nature and Scope of Self-Regulation of the Legal Profession

Entry and conduct regulation are core areas of concern

Reg. of lawyer’s accounts by auditing

Operation of assurance and insurance funds to compensate losses resulting from negligent/fraudulent lawyering

Also:

  • CPD
  • Discipline
  • Help with substance abuse

Canadian lawyering is highly regulated and enjoys a state sanctioned monopoly,

Regulation is carried out primarily by law societies

  • Focus of regulation was once admittance  shifted to conduct
  • Conduct is increasingly governed by mandatory codes of professional conduct
  • Also by malpractice suits, and other civil suits regarding lawyerly responsibilities

Issues exist around public input into regulation, self interest of the profession, and the regulation of non-lawyer providers of legal services

Regulation of the profession MUST be undertaken with the best interests of the public as its central purpose (not the exclusion of competition)

Self-Regulation of Lawyer Conduct

Control of lawyer conduct through:

  • Formal disciplinary processes
  • Rules/Regs. of LSs (re. keeping accounts and records, liability insurance, est. codes of ethics or conduct)

New national aspect to discipline emerging (from FLSC embarked on project)

Regulation of Entry to the Profession and Practice

Must be admitted to law society in the region to practice law there

  • Charter s.15 will apply re. discrimination in becoming a member of the law society
  • Andrews v LSBC
  • Other Charter rights may apply: freedom of association, of mobility? Interprovincial law firms:
  • Martin v. AG (denied entry b/c affiliated w communism)
  • Black v. Law Society of Alberta
  • Interprovincial law firms
Pre-admission Education Requirements

1950s: 3 year degree replaced extended articles [in 2015, the FLSC’s Task Force on the Cdn Common Law Degree: Final Report will be implemented, meaning all law schools in Cda will have to fulfill certain standards from Report]

  • Criticism: cost of legal education barrier to entry, limited number spaces artificially limited number of lawyers w result that cost of legal services makes them inaccessible

Articles

  • Criticism: common for students to be unable to find articles; LS of Upper Cda created alternate non-articling stream

Bar admission courses

Bar examinations

Good character

So persons worthy of trust, w moral strength or integrity admitted to prof

Passive enforcement, self reporting

Criticism: law societies more concerned w good character of new members than current members, morality subjective and at discretion of d/maker (and their prejudices), lack of stat. def. of “good character” means inconsistent and unpredictable application

Codes of Conduct

1920: CBA’s Canons of Legal Ethics

General aspirational idea of what a lawyer should be

1)duties to the state (promote its interests, serve cause of justice)

2)duties to the court (maintain authority and dignity of the Court)

3)duties to the client (faithful to client)

4)duties to his fellow lawyers (candid and courteous w fellows)