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 Table Of Contents
Introduction 6

Section A: The Legal Profession: Lawyers In Society And A Society Of Lawyer 8

Chapter 1. Professions And Professionalism: The Profession Of Law And Law

As A Profession. 9
a. What Is A Profession? 9
b. What Is The ―Public Interest‖? 10
c. The Role of Lawyers 10
d. Law as A Business and Law as A Profession. What Is the Difference? 11
e. The Power, Opportunity and Responsibility of Lawyers in Society 12
f. What Is Legal Ethics? 13
g. Lawyers‘ Obligations to Themselves, Clients, The Court and Society:
Is There A Conflict? 19
h. Lawyers as Moral or Morally Neutral Actors 26
i. Required Reading: ―Sustainable Professionalism‖ By Trevor C. W. Farrow 28

Chapter 2. Regulation Of Lawyers And Regulation Of The Legal Profession 37

a. The Roles and Responsibilities of Law Societies 37
b. The Structure of Self-Regulation 40
c. The Source, Meaning, Opportunity and Responsibility of Self-Regulation 42
d. Statutory and Ethical Regimes 44
e. Education 45
f. Good Character Requirement to Practice Law 47
g. Accountability and The Public Interest 49
h. Competence, Quality, Candour 51
i. Admission, Conduct and Discipline 57
j. Unauthorised Practice 64
k. Language Rights 65
l. Equity, Diversity and Inclusion (regarding clients and the legal profession) 70
2
 Section B: Ethics, Lawyering And Professional Regulation 70

Chapter 1. The Lawyer-Client Relationship 71

a. When Does A Lawyer-Client Relationship Come into Existence? 71
b. What Choices Are Available to The Lawyer with Respect to Accepting Clients? 73
c. Significance of The Lawyer-Client Relationship 75
d. Obligations of The Lawyer 76
e. Motivations and Techniques for Acquiring Clients 78
f. Are All of These Motivations and Techniques Appropriate? 80
g. What Larger Values Do They Advance or Undermine? 82
h. Termination of Lawyer-Client Relationship 82

Chapter 2. The Preservation Of Client Confidences 87

a. What are the Basic Confidentiality Obligations? 87
b. What is the Source of this Obligation? 89
c. What is the Difference Between Confidentiality and Privilege? 91
d. What Exceptions Exist to these Obligations? 92

Chapter 3. Conflicts Of Interest 96

a. When Is the Lawyer-Client Relationship Created? 96
b. Origins of Conflicts of Interest 97
c. Sources and Types of Conflicts: Ethical, Legal, Economic, Etc. 97
d. Client Loyalty 108
e. Changing Firms: Potential Conflicts Involving Law Students and Lawyers 109
f. Avoiding Conflicts 111
g. Remedies 112
h. Withdrawals 112
i. Implications for Lawyers, Clients and Administration of Justice 114
j. Is the Current Balance Fair? Efficient? 116

3
Chapter 4. The Adversary System And Lawyers As Advocates 117
a. The Adversary System and Its Impact on Professional Obligations 117
b. Lawyers as Advocates 118
c. Lawyers as Counsellors 119
d. Truths and Rights 121
e. Candour 121
f. Zealous Representation 122
g. Duties to Clients, Opposing Counsel, the Court, Other Parties, and Society 123
h. Civility 127
i. Documents – Discovery and Production 129
j. Trial Tactics, Evidence and Disclosure 132
k. Witness Preparation, Conduct and Perjury 134

Section C: Some Specific Practice Areas 137

Chapter 1. Ethics And Dispute Resolution: Counselling And Negotiation 138
a. When Lawyer-Client Relationship Created 138
b. Lawyer as Negotiator, Mediator and Arbitrator 139
c. Disclosure Obligations 140
d. Lies, Misrepresentations and Misleading Truths: Is There A Difference 141
e. Conflicts of Interest. (F) Confidentiality 142
g. Are Adversarial Rules Helpful? 143
h. Expanding Nature of Legal Services 143
i. Collaborative Lawyering 144

Chapter 2. Ethics And The Practice Of Criminal Law 147

a. As A Defence Lawyer 147
b. As A Prosecutor 149

Chapter 3. Government Lawyers 153

a. Nature of The Duty of Government Lawyers 154
b. Ethical Challenges Faced by Government Lawyers 155

4
Chapter 4. Lawyers In Organizational Settings; Corporate Counsel 157
a. The Development of The In-House Model 157
b. Ethical Challenges Faced by In-House Counsel 158
c. Canadian Response to Ethics of In-House Counsel 160
d. Lawyers as Corporate Secretaries 161

Section D. Access To Justice 163

a. What is Meant by ―Access to Justice‖ 163
b. What are Legal Needs? 164
c. Is There a Current Access to Justice Crisis? What Does That Mean? 166
d. Who Should Be Responsible For Providing Access To Justice?
What Is The Role Of Lawyers? The Profession? 168
e. What Are Some Concrete Options For Addressing Issues Of
Access To Justice? 171
i. Legal Aid 173
ii. Community Clinics 174
iii. Insurance and Pre-Paid Legal Regimes 175
iv. Contingency Fees 176
v. Class Actions 176
f. Legal Fees, Pro Bono, Paralegals 177

Appendix II – List of Articles in the Required Text 181

5
 Introduction

I‘m pleased to present to you this Note on Canadian Professional Responsibility; I‘ve been under
intense, consistent and popular demand to do this for quite a while.

As a candidate preparing for your NCA exams on Professional Responsibility, the first thing you
must note is that the primary source of reference is the Model Code of Professional Conduct (Model
Code) as developed by the Federation of Law Societies of Canada (FLSC). The syllabus does not
cover each of the different provincial rules and codes that regulate lawyers and you are not expected
to read all of these as you may not be tested on them. (Leave this for your Bar Admission Process
after your NCA qualification). So, I advise you to read the Model Code thoroughly; get familiar
with it. It is the easiest way to understanding this subject. You may download and print a copy of the
Model Code which is available free at https://flsc.ca/wp-content/uploads/2019/11/Model-Code-
October-2019.pdf. I also recommend that you have it with you in the exam hall for reference
purposes.

According to the NCA syllabus, this course has 3 main objectives:

1. Concepts – to help students develop a sense of what the profession is all about and to
identify lawyers‘ roles and responsibilities in the profession. In achieving these two aims, the
student‘s attention is drawn to issues of lawyering and the profession. These include self-
regulation, the nature of the adversary system, demographics and diversity, ethical and
professional obligations associated with specific practice roles and contexts, and ethical
balance between zealous representation and a commitment to the public interest and access
to justice.

2. Skills – which helps students to think about the professional issues that arise in practice, how
they arise, and how they can (and in some cases) must be dealt with.

3. Focused critical thinking – which encourages students to think critically and imaginatively
about the current and future opportunities and challenges in the legal profession; and to

6
 encourage them to think about what works and what doesn‘t work, and the available
alternatives.

This Note was prepared with substantial references, quotations, and excerpts from the text: Alice
Woolley, Richard Devlin, Brent Cotter and John M. Law, Lawyers‘ Ethics and Professional
Regulation, 3rd ed. This is the required text in the NCA syllabus and I have used it extensively,
significantly and substantially to prepare this note. Then adequate references are made to the FLSC
Model Code. I have incorporated extracts from the NCA syllabus as well. In fact, I have modelled
this Note exactly in line with the sections and chapters in the syllabus, so it may be easy for cross-
references. I have also endeavoured to summarize the facts and ratios of all the cases contained in
the syllabus, in addition to citing and reporting many others contained in the required texts and
others. I have equally incorporated useful materials from several other sources.

This version of the Note includes (some) abridged versions of the required article(s) as listed in the
syllabus. This abridgement includes important points, quotations and excerpts from the articles in
such a way that I have been able to reduce a 53-page article, for instance, to just about 10 pages.
This version also includes all the articles contained in the chapters of the required text. I have
deliberately compiled this as Appendix to the Note, so it doesn‘t disrupt your normal reading. This
has extended the pages of this note to about 265. But I‘ve been told that those articles are equally
essential because NCA may set questions on them.

It‘s always a tough task trying to compress about 2000 pages of materials into a note of about 265
pages that will still cover all topics. It‘s a challenge trying to do this without leaving out important
points. It‘s amusing when students desire shorter notes. I‘ve always jokingly told them to blame it
on the NCA syllabus. But the truth is: anything shorter than this note could be detrimental as you
won‘t be getting all the required knowledge.

In all, I have tried to achieve the objective of making this note concise but comprehensive, because I
know many NCA candidates have to shuffle their time between work and study. But I believe I have
achieved my aim of making this note a stand-alone material that can help you pass the exam,
without prejudice to the requirement for you to read through the required texts.

Wishing you a successful outcome in your Canadian Professional Responsibility exam.

- Manuel Akinshola
7
 Section A

THE LEGAL PROFESSION:

LAWYERS IN SOCIETY AND A SOCIETY OF LAWYERS

In accordance with the NCA syllabus, this first section of the note will revolve around two
fundamental and recurring questions. They are:

1. What is the legal profession?

2. What is the role of the lawyer in the legal profession?

The purpose of those two questions is to engineer the student to think about what the legal
profession actually is, and what the relationship of the legal profession is with other commercial
endeavors. How is it different from those other commercial endeavors in the society?

In addition, the student will have to think about the role of the lawyer in relation to her clients, the
profession and the public. This thought must be with specific reference to the relevance of the
personal integrity of the lawyer, her morality, honour, candour, communications, etc., in the course
of the practice of her profession.

And to provide adequate answers to these thoughts, Chapters 1 and 2 of this Section have been
designed to provide insights into issues relating to the profession and the professionalism of the
practitioners.

8
Chapter 1

Professions and Professionalism:

The Profession of Law and Law as a Profession

In this Chapter, you will study materials and discussions that relate to lawyers‘ ethics and professional
regulation. This will include materials relating to the ethical obligations of lawyers in legal practice. It will
also include materials that discuss the main sources of lawyers‘ guidance and obligations as they make
frequent ethical decisions in their day-to-day legal practice.

Issues to consider:
1) What is a profession?
2) What is the ―public interest‖?
3) The role of lawyers and the profession in legal process and the regulation of society.
4) Law as a business and law as a profession: what is the difference? Is there a conflict? Must it be a ―one-or-the-
other‖ question? What is at stake in this discussion?
5) The power, opportunity and responsibility of lawyers in society.
6) What is legal ethics? What is the orientation of the lawyer‘s value framework? What role do various principles
play in determining the obligations of a lawyer? Loyalty? Integrity? Justice?
7) Lawyers‘ obligations to themselves, clients, the court and society: is there a conflict?
8) Lawyers as moral or morally neutral actors: should personal honour, personal morality, etc. play a role in the
lawyering process? What are the various arguments on either side of this question? What Model Code provisions
animate both sides of this question? If there is a conflict, how should it be resolved? Whose morals are we talking
about: the lawyer‘s, client‘s, society‘s, others?
See the article, Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers, by Tim Dare, at page 177 below.

a) What is a Profession?
Generally, a profession is defined as a paid occupation, one that is founded upon a specialized (and
often) prolonged educational training and a formal qualification. The purpose of a profession is to
supply objective service to members of the public who need them, for a direct and definite
compensation. Thus, a profession is different in many respects from a trade, vocation, business or an
industrial enterprise.

9
In relation to law, the question that arises is as follows: is the practice of law a profession or a
business? The answer is well established that the practice of law is a profession, and not a business
or a skilled trade or vocation. Of course, there is a similarity between the two in the fact that some of
the aims of both a profession and a business are to render service and to make gain. The difference
between a business and a profession is that the chief end of a trade or business is personal gain while
the chief end of a profession is public service.

b) What Is The ―Public Interest‖?

Public interest is an abstract notion but it essentially refers to the welfare or well-being of the
general public and of the society. Examples of public interest include the public welfare and the
public good. It also includes the common good which means that the public has a common purpose.

Public interest is important because it relates to what matters to everyone in the society, that is, the
general welfare, the security and well-being of everyone in a particular community.

In the practice of law, public interest is important because the primary duty of the lawyer is to act in
the interest of the public, which should always come first, over and above the personal interest of the
lawyer or even before that of the client in many cases.

c) The Role of Lawyers and the Profession in Legal Process and Society
What is the role of lawyers and the profession in legal process and the regulation of society?

In the first instance, we must always remember that the law profession is a self-
regulated one. This means that the practice of law is regulated by lawyers themselves
through an institution established and recognised by law. This institution is basically
the law society of each province which has the sole statutory authority of regulating
law practice. And since only lawyers can become members of the law society, it
follows, therefore, that it is lawyers who regulate themselves, devoid of any
governmental intervention or supervision by any external body.

From the above, we are able to determine that lawyers play the primary role of
regulating how the law profession functions, how law practice should be conducted,

10
who should be admitted to the profession, what academic and other qualifications
should be possessed by applicants, what professional standard should be maintained
by those admitted into the profession, what should be the complaint and discipline
procedure, etc.

The law societies in Canada function as the regulator, and their functions are
governed by law as well as rules governing the practice of law and all other aspects of
the regulatory process.

d) Law as A Business and Law as A Profession: What Is the Difference?

Is there a conflict? Must it be a ―one-or-the-other‖ question? What is at stake in this
discussion?

As we have noted above, law practice is widely taken to revolve around the legal profession of
lawyers and their training, licensure, ethical responsibilities, client obligations and other matters
related to law practice. The practice of law is all about the zealous, ethical representation of clients.
Lawyers by virtue of the nature of their profession are also assumed to have entered into a social
contract to represent the society by defending the rule of law.

Therefore, the practice of law is traditionally regarded as a noble calling and not just a job. With this
viewpoint, the interests of society are advanced by the existence of a genuine legal profession which
has a commitment to the promotion and preservation of the public good. Lawyers here are regarded
as more than just service providers operating a market-driven business. They are members of a
profession. This is in contrast to those who believe that law practice is a legal industry in which
lawyers operate businesses in the law.

But this is not to totally overlook the business aspect of law practice which aims to provide legal
buyers with ‗more for less‘ within acceptable risk parameters. Today, lawyers and law firms provide
legal services with innovative and technological additions which take service delivery beyond what
it used to be. Many proponents argue here that the delivery of legal service today requires not only
legal expertise but also technological and business acumen to succeed. So, the lawyer will not rely
only on her knowledge of the law to succeed in law practice but also on law office (business)
management which includes both personnel and machineries.

11
In the same vein, the view that law is basically to serve the public interest has been challenged by
many, who argue that law should not be seen as ‗one or the other‘, i.e., either as a profession or as a
business. They argue that law practice is a profession as well as a business and should be run as
such. This argument comes from people who believe that for a law practice to survive, it must make
profit. And that a lawyer who solely relies on her technical expertise in today‘s world may find it
impossible or difficult to survive in the stiff competitive delivery of legal service.

So, some do not see a conflict in this viewpoint because they believe that the law profession can be
successfully managed as a business.

e) The Power, Opportunity and Responsibility of Lawyers in Society

As we have previously stated, the legal profession is a creation of statute. It does not exist as of
right. By virtue of the law, members of the legal profession enter into a bargain with the society in
which they promise to conscientiously serve the public interest, even if to do so may, at times, be at
their own expense. In return for this promise, lawyers are afforded some privileges. These include
the privilege to self-regulate, the exclusive right to perform certain functions, the privilege of a
special status, etc.

This special status enjoyed by lawyers in the society comes with special responsibilities, and this is
constantly emphasized, perhaps as a reminder to the practitioner. For instance, Rule 1.03 of the
Rules of Professional Conduct of the Law Society of Ontario provides that ―a lawyer has special
responsibilities by virtue of the privileges afforded to the legal profession and the important role it
plays in a free and democratic society and in the administration of justice‖. The commentary to Rule
4.06 of the same Rules declares emphatically that a lawyer‘s responsibilities are greater than those
of a private citizen.

The Model Code also refers to this special status enjoyed by lawyers in relation to their special
responsibilities in some specific situations. In Commentary 3 to Rule 5.6-1, the Code reminds
lawyers that judges and members of tribunals are often prohibited from defending themselves in the
face of scrutiny and criticism by the public. And that this prohibition, therefore, imposes special
responsibilities upon lawyers to avoid petty, intemperate criticisms or those not supported by belief
that it is meritorious. This is because such unjustified and unwarranted criticisms coming from
lawyers may diminish respect for the legal system.

12
Commentary 1 to Rule 6.3-5 which deals with discrimination, also provides as follows: ―A lawyer
has a special responsibility to respect the requirements of human rights laws in force in Canada, its
provinces and territories and, specifically, to honour the obligations enumerated in human rights
laws‖.

The lawyer‘s duties and responsibilities to the society may also be evident in such areas as the
protection of the principles of democracy and the rule of law. ―The professional responsibility to
understand and support these principles arises by virtue of the critical role that lawyers play in
democracy and the rule of law‖, as asserted by Sylvia Corthorm and Reena Goyal in their treatise: A
Lawyer‘s Duty to Society.

f) What Is Legal Ethics?

What is legal ethics? What is the orientation of the lawyer‘s value framework? What role do various
principles play in determining the obligations of a lawyer? Loyalty? Integrity? Justice?

It is often said that there is no universally accepted definition of legal ethics. But generally, lawyers‘
ethics relates to the ethical obligations of lawyers, both as an individual and also as a member of
organizations. It addresses the constraints on the conduct of a lawyer in terms of the rules, principles
and obligations she is required to comply with while in legal practice. It also deals with the lawyers
moral and ethical aspirations in her decision-making process, most especially where she is given the
discretion by the rules or law on how to act.

Lawyer‘s ethics also considers what the implications are for the life of a lawyer in fulfilling the
lawyer‘s role. This question becomes important when a lawyer has to consider whether her own
ethical life is affected by the course of helping a client to achieve a goal of which the lawyer does
not approve. The question then becomes, ―Can a good lawyer be a good person‖? as asked by
Charles Fried in his article, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client
Relation.

When it comes to the issue of legal ethics, some questions arise for consideration, viz: Is legal ethics
law? Who should decide the requirements of being an ethical lawyer: is it the lawyer herself, other
lawyers, the law society, the court, the public? What should a lawyer do when she encounters an
individual conflict in her main duties as a lawyer? Whose interest should be considered when
deciding what is ethical – the lawyer‘s? Interest of other lawyers? Interest of the public? Interest of
the profession?
13
Professional regulation is centered on the issue of ethics in legal practice. Here, the focus is on how
to determine what should be the ethical constraints on lawyers‘ conduct and how to enforce these
constraints. Presently, all Canadian lawyers are regulated substantially through self-regulation,
which means that the rules and standards are set by lawyers themselves. These rules include
admission to the practice of law, the lawyer‘s ethical conduct while in practice and the enforcement
of the applicable rules and standards.

Law Society of BC v. Jabour

Jabour was a senior lawyer practising in Vancouver, BC. He placed 4 advertisements in newspapers
advertising his services and the legal fees attached to each service, as well as his opening hours. He
also mounted a large illuminated sign over his office. The Benchers of the Law Society of British
Columbia set up a committee which found Jabour guilty of conduct unbecoming a member of the
Law Society and recommended his suspension for six months.

Jabour challenged his suspension claiming that the Law Society‘s ability to regulate its members was
contrary to the federal competition legislation, and also that restrictions on his right to advertise his
services violated his right to freedom of speech.

The court held as follows:

1. That it was the intention of the Legislature to vest broad powers in the Benchers, which may
include power to prohibit any conduct that is contrary to the best interest of the public or the
profession.

2. That although there is no specific power granted in the law to prohibit commercial
advertising by members, this power, like all other powers, is granted as part of the broad
regulatory power conferred by the Act.

3. That Benchers are given a general power to determine what conduct is to be acceptable in the
practice of law and even outside the practice for those who are members. So, whether the
advertising carried out by Jabour constitutes conduct that is subject to disciplinary
proceedings is a matter for the Benchers to determine as part of their general regulatory
powers.

4. That the Benchers have the power to prohibit the type of advertising carried out by Jabour
and to discipline with respect to that type of advertising.

(Please note that the Supreme Court of Canada later held in Rocket v. Royal College of Dental
Surgeon {1990} 2 SCR 232 that very broad advertising restrictions are contrary to the Canadian

14
 Charter of Rights and Freedom. Consequently, most Law Societies have relaxed their restrictions on
lawyer advertising, though some still remain).

Sources of Legal Ethics

There are basically 4 sources of ethical conduct for lawyers, and they are discussed as follows:

1. Case Law and Legislation – they place constraints on what a lawyer can do or cannot do. Case
law and legislation here may include regulations, and they are the most significant source of
guidance for lawyers on what is required of them to act ethically. The following offer us
examples of the ways and manners case law and legislations place constraints on lawyers in
legal practice:

- Law of negligence – requires lawyers to meet some basic standards of professional

competence;

- Law of fiduciary duties requires that lawyers must act with loyalty when acting on their
clients‘ interest. And that the interest of the client must be put before those of others or even
those of the lawyers themselves;

- Law of contracts – the courts have held that the scope of a lawyer‘s retainer agreement is
governed by contract, and, therefore, the law of contracts governs the specific obligations of
a lawyer to her client under an oral or written retainer agreement;

- Law of taxation – applies when a lawyer or client obtains court assessment of a lawyer‘s
bill and the order for it to be paid as assessed, and this provides lawyers with guidance on
their ethical obligations when charging their clients;

- Law of evidence and the doctrine of solicitor-client privilege – relates to the importance of
the lawyer‘s obligation of confidentiality to her client;

- Rules of court – deal with the lawyer‘s ethics in the conduct of a case. It also places a duty
on the lawyer to avoid acting where there is (a likelihood) of conflicts of interest between
the lawyer and her client, whether current or former;

- In criminal law – and for the purpose of fair trial, the defence lawyer has a legal duty to
provide effective assistance to the accused and identify the constraints to the proper conduct
of a prosecution. This duty also prevents a lawyer from withdrawing from a representation
without ethical justification.
15
 Although case law and legislation provide the most significant source of ethical guidance for
lawyers, yet many issues are not addressed by case law and legislation.

2. Rules of Professional Conduct – all Canadian provinces have provincial law societies which, as
one of their duties, prescribe rules of professional conduct to regulate lawyers practising within
that province. These rules cover a wide variety of subjects from admission and licensing to
clients‘ management, confidentiality, record-keeping, etc. Each provincial law society has its
distinct rules but in 2009, the Federation of Law Societies of Canada (FLSC) published a Model
Code of Professional Conduct which virtually all provincial law societies have adopted, except
Quebec. This was with a view to creating a uniform model code for all lawyers in Canada.

Thus, the rules of professional conduct are another great source of guidance for lawyers when
making ethical decisions, especially in moments of uncertainty.

3. Law Society Disciplinary Decisions – these are found on law society websites, CanLII and
Quicklaw and they provide insights into what constitutes professional misconduct (i.e.,
unethical conduct of a lawyer in legal practice) or conduct unbecoming (i.e., conduct of a
lawyer outside legal practice). However, these decisions are narrow in their application because
they focus on specific misconducts, especially those clear violations of legal duty such as
stealing client‘s funds.

4. The Principles or norms of lawyering – there are certain situations in which all the other 3
sources of ethical conduct fail to provide guidance to a lawyer when making a decision. In this
situation, the lawyer may have to rely on certain principles or norms to guide her conduct.
These principles and norms may be dictated by the important societal role that lawyers fulfill, or
by the requirements of ordinary morality, or by the foundational morality of the legal system, or
by that individual lawyer‘s own integrity. For example, in making a decision of which client to
act for, a lawyer may be left to rely on the principle and norms of lawyering where the rules of
conduct or case law leaves the decision entirely to her discretion.

Some Thoughts About “Ordinary” Ethics

―Ordinary‖ ethics in this context may refer to general morality, i.e., the idea of morality that applies
to every human behaviour or to every individual, regardless of his profession. But we shall relate
ordinary ethics to the legal profession in many instances.

16
The way we think about being an ethical lawyer might affect the way we think about being a good
lawyer. The two dimensions of ethics are:

1) ethics as a series of rules that constrain human behaviours, and

2) ethics as a general set of aspirations that we all strive to achieve.

And from these two general dimensions arise many philosophical schools of thought about ethics.
Some of these schools of thoughts are as follows:

1. Virtue Ethics – this Aristotelian theory postulates that each individual possesses virtues which
orientate them towards ethical conduct. For example, if a lawyer who possesses the virtue of
honesty, loyalty or compassion is faced with an ethical decision, she will apply those virtues of
honesty, compassionate conduct or loyalty to the client in exercising her judgment to arrive at a
decision. Conversely, the lawyer who possesses vices will have those vices orientate him/her
away from ethical conduct or decision.

According to this theory, it is not the virtue ethics in itself that brings about this effect, but the
possession and cultivation of these virtues contribute to the combination of human flourishing,
human character and practical judgment. This is because the mere possession of virtue is not
sufficient; it must be accompanied by the ability to apply practical judgment to those virtues in
any given situation.

The theory of Virtue Ethics argues that it is our virtues of character, when exercised through our
practical judgment, that lead us to ethical action. This is in contrast to the Kantian theory
(below) which postulates that it is the existence of specific rules (not virtues or vices) that
provide ethical guidance. To Virtue Ethics theorists, the pursuit of virtues is the precondition for
human flourishing.

2. Utilitarianism (Consequentialism) – this theory rejects the idea that ethics is a matter of
individual character based on virtue or vice (as postulated by Virtue Ethics) or that ethics is
based on the abstract concept of right or wrong. Rather, the most ethical action is that right
action which is most likely to do the greatest good for the greatest number of people. And if this
greatest good was not possible, the most ethical action is the right action that will bring the least
harm to the fewest number of people. This is in line with the notion that human beings want to
maximise their self-interest, and the society in which the overall human interests are maximised

17
 is the best society. According to this theory, the aim of a society should be to achieve ―the
greatest good for the greatest number‖.

Utilitarianism is also consequentialist in that it is more a way of judging whether a decision is

ethical, and not only as a means of reaching that decision. While it may not be possible to assess
the consequences of an action or decision in advance, the consequences after the fact will justify
assessing the action or decision as good or bad, or as ethical or unethical.

3. Kantian/Deontological Theories of Right of Action - postulates that it is the existence of

specific rules (not virtues or vices) that provide ethical guidance. The theory asserts that
morality is dictated by rules; for instance, it is because honesty is mandated by rules (e.g., the
rules of professional conduct) that makes it unjustifiable/unethical for a lawyer to lie or steal
client‘s money. Kantian theory rejects the notion that it is the significance of consequences that
is important in the assessment of whether an action/conduct is moral or not. Rather, it is the
existence of rules which forbid such conducts and provides guidance that dictate whether an
action/conduct is moral or not. Therefore, if a rule applies to a conduct, such rule must be
applied regardless of the consequences of doing so in any particular case.

Kant‘s theory recognises that humans have the capacity of reasoning, which is the freedom of
choice and action. Therefore, any moral rule or duty must respect this categorical imperative.
This means that the only principles which should guide your actions are those which should also
apply to every other free, reasoning person. Therefore, you must treat every person as having a
free will and not make them merely the means of the exercise of your own free will.

4. Postmodernism – This theory does not posit a new way of ethical reasoning or another way of
defining ethical conduct. Rather, it is a method of intellectual criticism; it merely notes the
impossibility or implausibility of the traditional approaches to what it means to be ethical, as
discussed above, because there is no calculus by which moral ideas or judgment can be tested
and perfected. The theory asserts rather that ethical decisions must be made through the
subjective viewpoint of the individual making them, through his/her own judgment and moral
intuitions only. The individual will take personal responsibility for the ethical decision he/she
makes, and will not be aided in that decision-making process by any of those abstract traditional
concepts of good or evil, or of consequences.

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 In summary, the postmodernist believes that an individual faced with an ethical dilemma must
simply apply his/her intuition and judgment, decide on the course of action to take, provide
justifications for taking that course of action, and then take responsibility for that decision.

5. Pluralism – according to this theory, there is no single source of guidance in making an ethical
decision. Rather, the individual faced with an ethical dilemma will weigh and measure different
(and occasionally conflicting) values in different circumstances, and may apply those values all
together in order to make a decision about the required ethics in that particular situation. So, the
individual will not depend on only a single source (e.g., virtue, rules or consequences) in
reaching an ethical judgment but may consider all of these. And after weighing all these values,
he will be required to exercise judgment, make a decision, provide justification for that decision
and then take responsibility for it.

g) Lawyers‘ Obligations to Themselves, Clients, The Court and Society: Is There A

Conflict?

Lawyers have varied and diverse obligations while performing their duties as law professionals.
Some of these obligations include to the client, to the court, to the society, and even to themselves.
And as naturally expected, many of these obligations conflict with one another, leaving the
practitioner in ethical dilemmas.

The lawyer‘s obligations shall be discussed in more details in specific practice instances in
subsequent chapters of this note, but let‘s examine a summary of these obligations and duties in the
following paragraphs:

1. Duty to clients: since Canada operates the adversarial system in litigations, legal ethics
demand that the advocate will resolutely advance the interest of their clients.

Please note, however, that the duty to resolutely advance a client‘s cause is subject to
ethical obligations that are intended to ensure that the administration of justice works
properly. For example, a lawyer is under an ethical duty not to deliberately refrain from
bringing a binding legal/judicial authority to the notice of the court or tribunal which she
considers to be directly on point and is not mentioned by any other party. This obligation
must be performed even if such authority is not favourable to her client‘s case.

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 Other obligations to the client include to ensure there are no conflicts of interests, to
maintain client‘s confidentiality, to communicate effectively with the client, etc.

2. Duty to court – a lawyer‘s duty to the court include that she must use only tactics that are
legal, honest and respectful of courts and tribunals. She must act with integrity and
professionalism, maintaining her overarching responsibility to ensure civil conduct. The
lawyer must also educate her clients about the court processes in the interest of promoting
the public‘s confidence in the administration of justice.

3. Duty to society – the primary duty of the lawyer to the society is to ensure respect for the
administration of justice, and thus to refrain from any act or conduct that will bring the
administration of justice into disrepute.

4. Duty to other lawyers – lawyers owe a duty of courtesy and good faith to one another. In
the practice of law, lawyers are expected to agree to schedules or shift positions on matters
that are not prejudicial to their client‘s causes.

5. Duty to themselves – the lawyer has a duty to be competent. She must avoid sharp practices
and not take undue advantage of others. She has a duty of loyalty and fidelity to the client
and has the obligation to represent the client competently.

Requirements of an Ethical Lawyer

This section discusses what it means to be an ethical lawyer. And in doing this, we shall examine the
various principles about the central ethical duties of a lawyer, as follows:

1. Loyal Advocacy – this is the most important moral requirement of legal practice. It is said
that loyalty in a lawyer-client relationship is like a friendship, like someone who enters into a
personal relation with her client. This makes the lawyer to act not in her own interest but for
the client‘s; more like adopting the client‘s interest as her own. In fact, she places the client‘s
interest above her own. She also places the interest of the client above those of others, and
will help the client to achieve his goals notwithstanding the consequences to other people. As
noted by the Supreme Court in Strother v. 3464920 Canada Inc. (2007), ―a fundamental
duty of a lawyer is to act in the best interest of his or her client to the exclusion of all other
adverse interest, except those duly disclosed by the lawyer and willingly accepted by the
client.‖

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 Loyal advocacy requires lawyers to be neutral partisans in pursuing their client‘s goals
without moral accountability for those goals. From this requirement, we can deduce that
loyal advocacy has 3 defining features for a lawyer as follows:

a. That he/she must be neutral towards the client‘s goals.

b. That he/she must not be morally accountable for the client‘s goals.

c. That he/she must act as a partisan to accomplish the client‘s goals.

{These 3 features are further discussed in Section d(2) below}

According to the proponents of this principle, the above requirements are important to
protect the individual‘s rights and freedom from state interference. Since it is through the
lawyer that the individual will have access to justice, then the individual has a right to a
lawyer and the lawyer who provides access to justice does an ethical act. More so because
the lawyer cannot help the client in accessing the justice system without being loyal to that
client‘s interest.

Loyal advocacy to the client does not however imply that the lawyer must simply do the
client‘s bidding regardless of what the legal system prescribes, or act to subvert or
undermine the legal system. Rather, the lawyer is to assist the client in accessing justice in a
manner consistent with the requirements of the legal system. According to Tim Dare in the
paper titled ―Mere Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers‖, he argues that
lawyers‘ obligation to the client should be a moderate balance, to provide zealous
representation of a client but not excessive advocacy. He argues that the lawyer‘s obligations
require and allow only mere zeal, and not hyper zeal. And that a useful test for distinguishing
between mere zeal and hyper zeal can be found in the abuse of process jurisprudence. This
jurisprudence requires the lawyer to identify the proper object of a legal proceeding, and then
restrict her advocacy to the pursuit of that object.

2. The Standard Conception and the Role of Law: This standard conception talks about the
institutions of law serving many functions in modern democracies, e.g., prescribing conducts
that are required or prohibited; in dispute resolution; in facilitating planning; in ensuring the
provision of certain public goods, etc.

Firstly, talking about the role of law in a pluralist community, it is common to find that in a
community, people hold various and diverse (and often incompatible) religious,

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philosophical and moral doctrines. The role of law in such a community will be to find a way
that all these diverse opinions may co-exist in a secure, stable and just society. Those who
believe in all these varied viewpoints may not all agree on any single conception of the good.
But they can agree on the form of procedure that will give them the good they want, or at
least what they need, in order for them to live together in spite of the multitude of their
differences.

Secondly, when we consider the role of law and the lawyer‘s role, we are giving specific
attention to the features of a lawyer‘s professional ethical obligations in a pluralist
community. Such features will include generally the duty of confidentiality and avoiding
conflicts of interest. But more specifically, the features will include the principles of
neutrality, the principle of non-accountability, and the principle of partisanship discussed as
follows:

a. That he/she must be neutral towards the client‘s goals. This means that the lawyer
must not allow her own view about whether the client‘s objective has moral merit or
not to affect the diligence or zealousness by which she is to pursue the client‘s
objective. Therefore, where legal rights have been established by a particular
procedure, the lawyer has obligations to follow those procedures and not to follow
her own viewpoint about whether what the client has done/wants done is good or
morally objectionable.

b. That he/she must not be morally accountable for the client‘s goals. This principle
states that lawyers are not to be judged by the moral status of a client‘s objective,
notwithstanding that the lawyer assisted the client in achieving those objectives. This
is because a lawyer might have strong moral objection to the acts of a client, yet she
is allowed to follow the legally stipulated procedure for the protection of the client‘s
legal rights, rather than follow her own moral preferences. In this wise, some may
criticize the lawyer who took on an unpopular case on the grounds that she wouldn‘t
have represented that client or zealously promoted his case if she did not
adopt/approve of the client‘s action. But the lawyer is entitled to the defence that she
is not allowed to exercise her expertise in a way that will become a de facto barrier to
unpopular views that are otherwise legally protected.

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c. That he/she must act as a partisan to accomplish the client‘s goals. This principle
calls on the lawyer to pursue the client‘s interest, both aggressively and single-
mindedly, all the way up to the limits of the law. The lawyer‘s professional
obligation is to zealously pursue her client‘s legal rights without fear and without
regard to any unpleasant consequences to herself or to any other person. She is to be
partisan in the sense that she must bring all of her professional skills to bear in
protecting the client‘s rights. However, it may amount to a common
mischaracterization mistake to assume that the principle of partisanship will require
the lawyers to be more zealous than it actually requires them to be. Rather, according
to the proponents of the mere zeal theory, the principle requires a more moderate
zeal, which means the lawyer is under no obligation to pursue interests that go
beyond the law.

On the other hand, the proponents of the hyper-zeal theory believe that the principle
of partisanship requires the hyper-zealous lawyer to be concerned not merely with
securing her client‘s legal rights, but to pursue any advantage obtainable for the client
through the law. Thus, the no-holds-barred zealous lawyer may be required to draw
upon all the tricks of the trade (e.g., using delaying tactics) to get her client all that
the law can be made to give, and thereby do a better job of defending the client‘s
legal rights than the less committed lawyer would. According to Lord Brougham (in
his defence of Queen Caroline against the charge of adultery brought against her by
her husband, King George IV in 1820):

An advocate, in the discharge of his duty, knows but one person in all the
world, and that person is his client. To save that client by all means and
expedient, and at all hazards and costs to other persons, and amongst them, to
himself, is his first and only duty; and in performing this duty, he must not
regard the alarm, the torments, the destruction which he may bring others.
Separating the duty of a patriot from that of an advocate, he must go on
reckless of consequences, though it should be his unhappy fate to involve his
country in confusion.

However, opponents of this view have emphasized that the role of the lawyer is to
allow the clients to avail themselves of the rights stipulated by social institutions, and
in so doing, it is not the function of the lawyer to allow her clients to avail themselves

23
 of the resources or benefits that are outside the law, or to satisfy their interests
beyond those allocated by law, or to do just anything that will further her client‘s
interest.

 R. v. Neil (2002) SCJ No. 72

The appellant brought an application for stay of proceedings of his criminal trial on the basis that the
law firm that initially represented him ultimately represented a co-accused. The appellant claimed
that this was an abuse of process arising from conflicts of interests.

The SCC held:

1. That the duty of loyalty of a lawyer to his client is essential to the integrity of the administration
of justice and that it is of high public importance that public confidence in that integrity be
maintained.

2. That unless a litigant is assured of the undivided loyalty of his lawyer, neither the public nor the
litigant will have confidence that the legal system, which may appear to them to be a hostile and
hideously complicated environment, is a reliable and trustworthy means of resolving their
dispute and controversies.

3. That the aspects of the duty of loyalty relevant to this appeal include the issue of confidentiality,
but more particularly:

a. The duty to avoid conflicting interests – including the lawyer‘s personal interest,

b. A duty of commitment to the client‘s cause (sometimes referred to as ―zealous

representation) from the time counsel is retained, not just at trial, i.e., ensuring that a
divided loyalty does not cause the lawyer to ―soft peddle‖ his or her defence of a client
out of concern for another client…, and,

c. A duty of candour with the client on matters relevant to the retainer…. If a conflict
emerges, the client should be among the first to hear about it.

(Please note that the obligation placed on lawyers by the FLSC is that of
―resolute‖ advocacy, in contrast to ―zealous‖ advocacy advocated here by the
Supreme Court. Ultimately, both terminologies may head towards the same
purpose.

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  Canada (Attorney General) v. Federation of Law Societies of Canada
(2015)
To prevent intermediaries from assisting in money laundering, Canada‘s anti-money laundering and
anti-terrorist financing laws mandated intermediaries (including lawyers) to keep records and
verification requirements of all instructions to transfer or receive funds. The law also imposed fines
for non-compliance and provided for the search and seizure of such information. The Federation of
Law Societies of Canada (FLSC) challenged this law because it violated solicitor-client privilege of
lawyers in Canada, arguing that the law also violated the Charter rights to be free from unreasonable
search and seizure and deprivation of liberty.

In striking down the law, the Supreme Court held in relation to conflicts of interest as follows:

1. The duty of lawyers to avoid conflicting interests is at the heart of both the general legal
framework defining the fiduciary duties of lawyers to their clients, and of the ethical
principles governing lawyers‘ professional conduct.

2. That this duty to avoid conflicting interests aims to avoid two types of risks of harm to
clients: 1) the risk of misuse of confidential information, and 2), the risk of impairment of the
lawyer‘s representation of the client.

3. In another dimension, the lawyer‘s duty of commitment to the client‘s cause also requires
some measure of constitutional protection against government intrusion for many of the same
reasons that support constitutional protection for solicitor-client privilege. The client must be
able to place ―unrestricted and unbounded confidence‖ in his or her lawyer. The duty of the
lawyer‘s commitment to the client‘s cause is therefore central to the lawyer‘s role in the
administration of justice.

4. It should be recognised as a principle of fundamental justice that the state cannot impose
duties on lawyers that undermine their duty of commitment to their clients‘ causes.

5. The duty of commitment to the client‘s cause has been recognised by the court as a distinct
element of the broader common law duty of loyalty and thus unquestionably is a legal
principle.

6. Of course, the duty of commitment to the client‘s cause must not be confused with being the
client‘s dupe or accomplice. It does not countenance a lawyer‘s involvement in, or
facilitation of, a client‘s illegal activities. It does not permit a counsel to assert claims that he
or she knows to be unfounded, or to present evidence that he or she knows to be false, or to
help the client to commit a crime, or permit his or her services to be used for improper ends.

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  Szarfer v. Chodos (1986) O.J. No. 256
The Plaintiff claimed that Defendant, who was his lawyer in a wrongful dismissal case, used
confidential information he gained about the Plaintiff‘s mental and sexual life, to engage in an affair
with his wife. Plaintiff claimed damages for Defendant‘s alleged breach of solicitor-client fiduciary
relationship.

Court held that the first issue was to establish that the Defendant owed the Plaintiff a fiduciary duty
as his client, which the court found to be so. The court then held that the Defendant was liable to the
Plaintiff because the fiduciary relationship between a lawyer and his client forbids the lawyer from
using any confidential information obtained by him for the benefit of himself or a 3rd party or to the
disadvantage of his client. And that in engaging in sexual intercourse with the Plaintiff‘s wife, the
Defendant was acting in his own interest and to his personal benefit. That this breach constituted
professional negligence and demonstrated an unreasonable lack of skill and fidelity in his
professional and fiduciary duties as a lawyer.

h) Lawyers as Moral or Morally Neutral Actors

Should personal honour, personal morality, etc. play a role in the lawyering process? What are the
various arguments on either side of this question? What Model Code provisions animate both sides of
this question? If there is a conflict, how should it be resolved? Whose morals are we talking about: the
lawyer‘s, clients‘, society‘s, others?

The Lawyer as Moral Agent in Pursuit of Justice: There is much emphasis on loyalty as an
important norm of ethical practice for lawyers. Unfortunately, however, there are other values
which enjoy equal (or more) emphasis. As an example, the word ―justice‖ appears in the FLSC
Model Code about 35 times, while ―loyalty‖ appears only 18 times. This suggests that the FLSC
places more emphasis on justice than loyalty. For William Simon, a leading American ethicist,
the central moral principle of lawyering should be justice. And a ―lawyer should take those
actions that, considering the relevant circumstances of the particular case, seem most likely to
promote justice‖.

Secondly, the emphasis on loyal advocacy has opened it up for criticism, especially its feature of
advocacy for a client‘s cause without moral accountability for the client‘s aims. Opponents of
loyal advocacy have argued that there must be a re-orientation away from this type of advocacy
to one in which the lawyer retains moral agency and responsibility for what she does on her
client‘s behalf. That a lawyer should not have unqualified commitment to the clients cause but
26
 must retain and use her independent judgment to determine whether a client‘s proposed course
of action is just.

To David Luban in his paper, ―The Adversary System Excuse‖, the standard conception of the
lawyer‘s role is that, (1) she must be a partisan advocate for her client‘s ends, and (2) the lawyer
must have no moral accountability for those ends. Luban then challenges this standard
conception and argues that the lawyer retains responsibility for her moral choices, and that it
does not matter whether these choices were made on behalf of her client or not.

 R. v. Murray (2000)
Murray was the lawyer to Bernando, an accused person in a rape and murder charge. Murray was
charged with obstruction of justice for withholding tapes which were incriminatory of Bernando. The
issue here turned on the ethical dilemma created by the conflicting duties of candour and
confidentiality by criminal defence lawyers on the one hand, and whether there is a duty to disclose
the possession of those tapes to the Crown on the other hand.

In discharging the Defendant, the court held:

a) That the tapes pre-existed the solicitor-client relationship and were physical evidence. They
do not come under the definition of the word communication and therefore were not covered
by privilege.

b) That while maintaining solicitor-client confidentiality, the lawyer must turn over any
incriminating physical evidence to the prosecutor if it improperly comes into her possession
as lawyer. However, there is no positive obligation to assist the Crown.

c) That from Murray‘s testimony, there was no intention to withhold or conceal the tapes.

Integrity

Some scholars have begun to criticize both the zealous advocacy conception and the moral agency
conception as not been sufficient because different (and sometime competing) values have been
placed by the courts and professional regulators on lawyers‘ conducts. And this has shown that there
is no single moral prescription that can adequately address the moral and legal framework that
govern Canadian lawyers. For instance, the Canadian codes of conduct place more emphasis on the

27
lawyer‘s integrity, in contrast to their American counterparts. As an example, Rule 2.1-1 of the
Model Code states as follows:

―a lawyer has a duty to carry on the practice of law and discharge all responsibilities to
clients, tribunals, the public and other members of the profession honourably and with
integrity.‖

What is meant by integrity is not defined in the Model Code but in the Commentary. It suggests that
practising law requires the lawyer to be trustworthy, honourable and responsible, while always
avoiding questionable conduct. However, this does not in itself provide sufficient guidance as to
what it means to practice with integrity. Therefore, it has been suggested that integrity may be seen
as the necessary balance between professional and personal morality. Here, integrity will be taken as
directing the lawyer in her choices where there is a moral difficulty or complexity, and to be
responsible for those choices.

(Required Readings)

“Sustainable Professionalism” by Trevor C. W. Farrow.

(citations omitted)

This article challenges the traditional views of lawyering. The author builds on current alternative narratives
and articulates a new discourse of professionalism that is personally, politically, ethically, economically and
professionally sustainable. This is possible by balancing the lawyers‘ principles, interests and life preferences
with other important interests - those of clients, though not to be dominated by them.

The article also makes good on aspirational promises of equality, access to justice and protecting the public
interest. It takes seriously, obligations to, as well as benefits from, the culturally complicated makeup of the
bar and pluralistic and globalized civil societies.

I. LEGAL ETHICS AND PROFESSIONALISM

The Traditional Narrative of the legal profession has run its course. Now, lawyers are seeking for ways to
practice law, full or part-time, in diverse and alternative settings and generally pursue a meaningful career in
the law rather than necessarily a total life in the law.

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An increasing number of legal academics are teaching, researching, and writing about progressive changes to
the way we view the role and purpose of lawyering. The bench and the bar are taking an active interest in
addressing a perceived growing lack of professionalism within the practice. Law societies and other
regulatory bodies are slowly chipping away at some of the time-honoured shields of ethically suspect client
behaviour, while at the same time facing demands for increased accountability. The public is increasingly
sceptical of the distinction that continues to be drawn between legal ethics and ―ordinary standards of moral
conduct.‖ Finally, clients are not only expecting lawyers to actively canvass methods of alternative dispute
resolution—the alternative to the adversarial and costly litigation process—but they are also demanding
evidence of general sustainable professional practices from their legal counsel.

The modern discourse is of an ethically sustainable profession which opposes the ―time-honored‖ theory of a
lawyer‘s unqualified loyalty to the client‘s interests. It rejects stories of lawyers as ―hired guns‖ focused on
only one interest ―in all the world‖.

For the purposes of this article, my interest in ethics (and in particular legal ethics) is at the level of human
action in context. Because this article is concerned with the derivative discussion of ethics as applied to the
legal profession, my approach here adopts this derivative standpoint. Ethics, from this perspective, involves
an inquiry into ―how one should live one‘s life‖ or ―the rule of human life,‖ according to Plato. When
thinking about the subset of ethics that we call legal ethics, the starting point for the inquiry is to think about
how one should live in the context of law, or more specifically, how lawyers ought to act in the context of the
profession.

As per Aristotle, who in his discussion on community—and in particular the telos (end) of the community of
the polis (city)—argued that the city exists not only ―for the sake of living, it exists for the sake of living
well.‖ If we then think of the legal profession as the (self-regulated) community in which we are ultimately
contemplating (and judging) the ethics of a lawyer‘s action, the legal profession must exist not only for the
sake of practising law, but for the sake of practising it well. Any notion of legal ethics must therefore
contemplate an understanding of lawyering that is fully engaged with a vision of what amounts to practising
well. We need to find a way of deciding what amounts to ―practising well.‖

Religion, custom, power, and happiness have all been used over the centuries by ethicists to assess the
general morality of a given course of action. In the specific context of law we might consider the ―legality‖ of
a given course of conduct—the client‘s conduct—and ask Rob Atkinson‘s ―fundamental question of
professional ethics‖: ―Should a professional always do all that the law allows, or should the professional
recognize other constraints, particularly concerns for the welfare of third parties?‖. According to Atkinson,
this question ―divides scholars of legal ethics … into two schools: those who recognize constraints other than
law‘s outer limit, and those who do not.‖

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Finally, the term ―legal ethics‖ is typically used interchangeably with the term ―professionalism‖ or
―professional responsibility.‖ The sources for what count as right or wrong for the purposes of these
interchangeable approaches to ethics and/or professionalism are found in codes of professional conduct and
other legal texts. This interchangeable approach does not typically pose a problem. Often ethics and
professionalism map nicely onto one another. For example, it is generally agreed that stealing from a client or
acting in a direct financial conflict with a client are bad things, both from the perspective of professional
codes and from the perspective of personal morality. Because codes of conduct are often open textured in
approach and indefinite in content, what any given individual considers to be ―professional‖ can depend on
personal moral deliberation as to what counts as ―ethical. It is therefore important to maintain the conceptual
distinction between what is professional, under codes of conduct, and what is ethical, as ultimately guided by
personal moral deliberation.

II. DOMINANT MODEL OF PROFESSIONALISM

The traditional view of the lawyer‘s role, which still remains comes with familiar labels such as ―zealous
advocate,‖ ―amoral technician, and ―neutral partisan‖ which are used to describe this hegemonic model of
lawyering. In a nutshell, the basic defining elements of this narrative are that the lawyer‘s job is to advance
zealously the client‘s cause with all legal means; to be personally neutral vis-à-vis the result of the client‘s
cause; and to leave the ultimate ethical, personal, economic, and social bases for the decision to proceed in
the hands of the client. According to this view, lawyers should reject non-legal factors such as morality,
popularity,

religion, power, custom, etc., and be guided only by what the law allows, thereby viewing themselves purely
as legal agents for their clients. This view, most often quoted from the argument of Henry Brougham in
defence of Queen Caroline is not of the old; it persists everywhere in Canadian law. The words of Brougham
still continued to be used by modern legal ethics scholars.

A. Principle – the principle behind the dominant position is that a client has the individual autonomy and
freedom to arrange her affairs within the bounds of the law. And the lawyer‘s job, therefore, is to
facilitate the client‘s exercise of moral autonomy as authorized by the law. Thus, lawyers as champions
of client freedom militate against a tyranny of the majority or of the executive and any other role for the
lawyer would usurp the role not just of judge and jury but of the legislature as well.

Justifications for the dominant narrative also come from the fact that, particularly—although not
exclusively—in the criminal law context, clients deserve the best defence and representation possible,
especially when they are up against the power of the state and individual liberty is involved

30
B. Policy – the principles and justifications for the dominant theory have been embodied in numerous
sources of policy, most notably including various codes of professional conduct. Examples of these
codes include:

1) American Bar Association (ABA)‘s Model Rules, regarded as perhaps one of the strongest
modern policy statements and which provide that when acting as an advocate, ―a lawyer
zealously asserts the client‘s position under the rules of the adversary system‖.

2) Canadian Bar Association (CBA)‘s Code - when acting as an advocate, ―the lawyer must …
represent the client resolutely, honourably and within the limits of the law‖.

3) Law Society of Upper Canada (LSUC)‘s Rules provide that the lawyer ―has a duty to the
client to raise fearlessly every issue, advance every argument, and ask every question,
however distasteful, that the lawyer thinks will help the client‘s case, and endeavour to obtain
for the client the benefit of every remedy and defence authorized by law.

In line with the principles of the dominant model, even if the lawyer has personal difficulties
with the position of the client, the dominant model requires the lawyer to suppress his or her
own views in favour of those of the client and to ―refrain from expressing the lawyer‘s
personal opinions on the merits of a client‘s case.‖ Alberta makes the same point even more
bluntly in The Law Society of Alberta, Code of Professional Conduct, c. 10, r. 11,
commentary: ―What the lawyer believes about the merits of the case is essentially irrelevant.‖

C. Practice – the traditional model does not only play out in guiding policy statements; it also resonates
with the routine practice of most lawyer‘s daily work.

D. Literature, Popular Culture, and Media – in literature, film, popular culture and the media, lawyers
continued to be viewed through the lens of amorality and by the choices and actions that result from
that amoral viewpoint. From Shakespeare to after Shaw, the ways lawyers are portrayed reflect the
realities of legal practice.

E. Hegemony Light – notwithstanding the paramountcy of the client‘s interests, lawyers cannot engage
in illegal activity by, for example, concealing evidence or obstructing justice, and secondly, she
must make space for a lawyer‘s obligations to the court, for example by not deceiving a tribunal,
misstating the contents of a document (or testimony of a witness, or dissuading a witness from
giving evidence.

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III. ALTERNATIVE MODELS OF PROFESSIONALISM

The basic difference between the traditional dominant model as espoused above and the alternative model is
the opportunity for, or obligation on, lawyers to be guided by extra-legal norms, such as morality, religion,
politics, and custom, when representing their clients. As with the dominant model, there are equally
compelling arguments in support of the alternative models in principle, policy and practice, as follows:

A. Principle – the principle here requires that, in addition to the interests of the client, the advocate as a
member of a self-regulated profession must take into consideration a number of other interests (as
required by his or her status as a member of the legal profession) including those of other clients, himself
or herself, opposing lawyers, the court, and other sectors of society included in the overall administration
of justice. In this context, the lawyer‘s role has been variously described in the following terms:

o ―officers of justice‖, who are ―morally reflective individuals‖;

o ―moral activist,‖ requiring a ―profession-wide emphasis on greater moral sensitivity and self-
awareness among attorneys‖;

o Or of the lawyer‘s professional duty as requiring ―reflective judgment‖ to ―further justice‖ and
provide moral perspective through the development of critical morality.

All of these descriptions taken together, in response to Atkinson‘s question, essentially require
lawyers to accept personal responsibility for the moral consequences of their professional actions. In
the ―extreme‖ form, the lawyer should ―avoid doing harm‖ by refusing to act if the lawyer thinks that
the outcome of ―winning‖ would be on balance a ―bad thing‖ or ―socially unfortunate,‖
notwithstanding that ―the client will pay‖ and the lawyer in acting wouldn‘t be doing anything that
came close to violating the canons of professional ethics.‖

However, aside from balancing or prioritizing the public interest above that of the client particularly
when those interests collide, these alternative views do not mandate one sense of what counts as
morality.

B. Policy – just like the dominant model, the Alternative Model of lawyering also has policy statements in
support, including code-based and legislative statements. Examples of these include:

 The President‘s Message in CBA Code that ――[s}tandards of professional ethics form the
backdrop for everything lawyers do.‖

 the ―Preface‖ to the CBA‘s Code which provides that its ―primary concern‖ is ―the protection of
the public interest.‖

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  The Law Society Act in Ontario which provides that, ―{i}n carrying out its functions, duties and
powers under this Act,‖ the LSUC has a ―duty‖ to ―maintain and advance the cause of justice
and the rule of law‖; ―facilitate access to justice‖ and ―protect the public interest… .‖

 New York Lawyer‘s Code of Professional Responsibility of the New York State Bar Association
(NYSBA), that says a lawyer ―should be temperate and dignified, and refrain from all illegal and
morally reprehensible conduct.‖

 the Basic Rules on the Duties of Practicing Attorneys (Basic Rules) of the Japan Federation of
Bar Associations (JFBA) which provide that the ―mission of an attorney is to protect
fundamental human rights and realize social justice.‖

However, most of these justice-seeking policy statements are not the end of the matter but the
beginning for the Alternative models of professionalism. This is because the codes fail to define what
constitutes an ―injustice,‖ ―dishonourable‖ or ―morally reprehensible‖ conduct, or even ―social
justice.‖ Often lawyers are left to their own moral devices to understand these provisions and their
application to particular courses of action (thus creating contested devices, understandings, and
applications}. But there are numerous policy statements recognizing the need for individual
deliberation by lawyers. In Canada, for example, the Law Society of Alberta acknowledges that its
professional ―rules and regulations … cannot exhaustively cover all situations that may confront a
lawyer, who may find it necessary to also consider legislation relating to lawyers, other legislation, or
general moral principles in determining an appropriate course of action.‖. And several others too.

C. Practice – the Alternative Model is being reflected in how law students make their choices about courses
to study and where; how lawyers make their choices about which clients to take, how to represent those
clients, and how to withdraw their services when a client relationship breaks down (in terms of trust,
respect, et cetera). All these demonstrate that lawyers are preoccupied with the constant tensions of
specific solicitor-client relationships and the lawyer‘s overall obligations to society

D. Competing Professionalisms – when thinking about how best to understand legal ethics from the context
of principle, policy and practice, the two Models as discussed above are always competing against each
other: The Modern vs. The Old. But in the author‘s view, the principles and policies support the
alternative model, though this view is still in the minority. Nevertheless, the Dominant ideology of
professionalism still enjoys tremendous support because of the following reasons:

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 1) The long history and tradition of this Model, e.g., the discussion of Lord Brougham on the vision
of a lawyer which dates back to 1821. The argument (which sounds tautological) is that the model
has been persuasive, because the model has been persuasive for a long time.

2) Because it is simply more compelling. It has the amoral ability to be applied to all lawyers and all
lawyering situations, in contrast to the Alternative model which places emphasis on the lawyer‘s
individual moral choices or preferences above the institutional value.

3) Because of the power politics and economics of the lawyering process. Law has increasingly
become a competitive business driving the needs of powerful clients, and the highest bidders in
such an economy are wealthy and often powerful.

4) Because it fosters the idea of individual freedom and autonomy, in contrast with the Alternative
Models which dwell on shared morality.

IV. SUSTAINABLE PROFESSIONALISM

A key aspect of the problem is that the two stories, on their face, disagree about how to evaluate what counts
as the ―right‖ course of action in a given circumstance. Their positions on this fundamental question compete.
To the author, what is needed is a story of professionalism that captures the energy and positive attributes of
both sides of this debate. What is needed is a theory of professionalism that is sustainable, that is (as far as
possible) acceptable to, or sustainable for, both sides. Otherwise, we will maintain this gridlock.

A. Underlying Interests: - The under lying interests for both theories are as follows:

- For the Traditional/Dominant Model - the client maintains the ultimate interest, with the ability to
maximize his autonomy and rights within the broad parameters of what is legal, without moralizing
from the advising lawyer.

- For the Alternative Models – a number of stakeholders is the focus of justice or public interest, viz. –
the client, the lawyer, the judge, the other side and the public (present and future). Discovering and
balancing these interests actively engages the lawyer‘s own moral opinions and preferences in the
dialogue.

The primary points of disagreement between these approaches are the number of relevant stakeholders
(client versus client and others) and the relevance of a lawyer‘s own moral opinions (vis-à-vis the
client‘s chosen course of legal conduct). Otherwise, both sides seem to agree on the basic justice-seeking
premise of the lawyering exercise.

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B. Sustainability: - The author proposes a more persuasive, sustainable approach, in response to those who
think a new way of thinking about professionalism would be good in theory but not sustainable. He
proposes a form of professionalism that is normatively sound, is descriptively accurate, and provides the
basis for broad-based buy-in from as many justice-seeking stakeholders as possible. He asserts that his
ideal of sustainability must thus take the following 4 competing interests into account, viz:

1. Client Interests

2. Lawyer Interests

3. Ethical and Professional Interests (of Lawyers and the Profession)

4. Public Interest

C. Balance and Context: - There have been some challenges that both theories have fully overcome: The
dominant model, through its narrow focus on one interest ―in all the world,‖ misses a variety of other
relevant people and interests. The Alternative model, on the other hand—through its typical focus on the
―good lawyer‖—has been seen to be unrealistic in practice, at least in light of the continued use of ―time-
honoured disguise[s] and … borrowed language.‖

The sustainable professionalism theory therefore addresses the gridlock created by these competing
notions of professionalism by harnessing both the energy and optimism of the alternative models as
well as the tenacity of the dominant model. Secondly, it self-consciously identifies the myriad interests
that are at stake in the context—those of the client, lawyer, profession, and public—and draws them
into a theory of professionalism that is sustainable. And when conflict does occur, a sustainable theory
of professionalism will seek to balance and respect as many interests as possible.

But there are times when these conflicts are irreconcilable, e.g., where the legal demands of a client
retainer may collide head-on with the dictates of a lawyer‘s own personal moral code. In such conflicts,
the Dominant Model provides that if the lawyer decides to accept the retainer, she must put her own
moral views to the background and proceed to effect the client‘s legally permitted instructions. The
Alternative Models provides that such a lawyer must prioritise on a calculus what the lawyers thinks is
a good course of conduct. In such a situation, the theory of sustainable professionalism seeks to
normalize these competing interests through an exercise of interest identification and rationalization.
Here, if the lawyer decides to do the job, it is because she thinks it is a ―good‖ thing to do, not because
of the feeling that she ―has to do it‖. The goal is to foster deliberation both for the lawyer and between
the client and the lawyer, in the spirit of enabling a sustained and engaged discussion that takes
seriously a variety of potentially competing interests. This is not simply an exercise in client autonomy
or an exercise in moral superiority. It is an exercise in real world, sustainable lawyering.
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D. Legal Education: - there continues to be an alarming disconnect between what students think is right in
the world and what students think they are going to be required to do to be ―good‖ lawyers. As Richard
Wasserstrom argues, the question of ―what is the nature of the good lawyer?‖ is potentially ―one of the
central questions, if not the central question, of legal education.‖

V. CONCLUSION

As Adam Dodek comments, with some notable exceptions, scholarship generally addressing legal ethics and
professionalism in Canada is still in its early days. Further, Tanovich comments: ―[u]nfortunately, we have
only had few attempts in Canada to set out systematically a … theory of ethical lawyering.‖ This article seeks
to add to those attempts.

From the start I have been troubled by the fact that, notwithstanding these powerful arguments of the
alternative models there continues to be a remaking of history in the image of the past that favours the time-
honoured but increasingly fictional vision of the dominant model of lawyering.

Richard A. Matasar, ―The Pain of Moral Lawyering‖ argues that:

Lawyers … must … be the driving force behind ethical and moral change. It is not

enough to bump along, oblivious of the questionable tactics the profession engages

in under the name of advocacy, zealous representation, or the lawyerly posturing.

Doing so diminishes us as individuals and collectively gives the profession a bad

name. No, our strategies must be different. We must be disobedient when it matters

most; we must be reformers, constantly seeking a more moral profession; and we

must be willing to withdraw.

We need a sustainable alternative model to facilitate change. As Socrates commented in the Republic, the
question of how we should live our lives—or in this context how we should view ourselves as
professionals—is ―no light matter.‖ This is because, as Mayer argues, in all likelihood ―this society … and
the world of our children‖ will largely depend on how we view ourselves as professionals.

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Chapter 2

Regulation of Lawyers and Regulation of the Legal Profession

Issues to consider
a) The roles and responsibilities of law societies in the governance of the legal profession. What are
their purposes? Are these purposes being achieved? What alternatives might be considered?
b) Structure of the legal profession.
c) The source, meaning, opportunity and responsibility of self-regulation.
d) Statutory and ethical regimes.
e) Education.
f) Good character requirement to practice law.
g) Accountability and the public interest.
h) Competence, Quality, Candour.
i) Admission, conduct and discipline.
j) Unauthorized practice.
k) Language rights.
l) Equity, diversity and inclusion (regarding clients and the legal profession)

a) The Roles and Responsibilities of Law Societies

What are their purposes in the governance of the legal profession? Are these purposes being
achieved? What alternatives might be considered?

In terms of their roles and responsibilities in the governance of the legal profession, generally, law
societies regulate the law profession by doing the following:

- Determining the criteria for admission to the legal profession

- Establishing requirements for Canadian law schools

- Deciding whether an individual applicant meets the good character requirement to allow
him admission into the profession

- Determining the organizations within which lawyers may work and provide legal services to
the public

- Establishing the codes of conduct

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 - Possessing the sole power to discipline lawyers for misconduct, and

- Possessing the legal authority to sanction individuals who engage in the unauthorised
practice of law.

Lawyers self-regulate both by acting as benchers and secondly through possessing the powers to
elect those who will be benchers. Every lawyer licensed in Canada therefore has a role to play and
responsibility to bear for professional governance.

Regulation of lawyers comes in different ways, as follows:

- Self-regulation – which is the regulation of lawyers by lawyers. This is the most direct form
of regulation;

- Through suits against lawyers for malpractices or breach of fiduciary duties, or through
criminal prosecutions for fraud;

- Through the cultural practices and norms of each particular firm or legal community;

- By the standards of the market for legal services.

Critics have argued that the way legal services are being accessed in Canada is changing but
Canadian law societies have regulated these services in the same way for over 100 years. They
stressed that self-regulation by law societies have not adequately addressed the public interest
objective of self-regulation. This is because:

- of the belief that lawyer discipline is not responsive to client and public concerns about the
quality and cost of legal services;

- self-regulation essentially serves the interest of lawyers, not the public;

- with its traditional focus on professional misconduct, self-regulation is not seen to address
majority of complaints which are client-service oriented;

- self-regulation is more concerned with lawyer competence and ethics and does not match
clients‘ complaints about delay, neglect, unreasonable fees, poor communication and
unfavourable outcomes.

In response to these criticisms, law societies have moved:

- to provide better information about the purpose of regulation;

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 - to provide information about the availability of more informal dispute-resolution and early
intervention mechanisms;

- to provide better information about more appropriate and better means of redress;

- to enhance and strengthen their discipline and complaint processes to make them more
effective, efficient and accountable;

- to address public concerns and rebuild trust in professional self-regulation by moving

towards the adoption of a more proactive, compliance-based method of regulation that will
ensure professional conduct and client satisfaction.

Alternatives have been suggested and are partly been considered by many law societies. Some of
these alternatives include:

- That the traditional model of lawyer regulation which focuses on prescribing conduct for
individual lawyers and imposing sanctions only when there is a complaint should be
refashioned. Many scholars, lawyers and regulators have called for legal regulation which
focuses rather on preventing misconduct, and which should include law firms, in-house
departments and other legal entities, not just individual lawyers.

- That lawyers should be allowed to offer services to the public through alternative business
structures (ABS), where, for example, a commercial entity like Walmart may offer legal
services to the public through lawyers employed by the organization.

- Many law societies have begun to explore the possibility of adopting compliance-based
regulation. This system focuses on encouraging lawyers to adopt practice management
strategies that ensures competence and ethical conduct. For example, the Nova Scotia
Barristers‘ Society has implemented such ideals on a pilot-project basis. But others have
been reluctant in following suit.

- Regulation by an independent regulatory body in any of the following formats:

o coregulation in which authority is split between rule-making and rule-enforcing

o coregulation in which authority is split by category or discipline

o coregulation in which there is oversight regulation, e.g., in Quebec that has an office
of the professions which has both regulatory and research capacity over the
professions

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 o Independent regulation

b) The Structure of the Legal Profession

Basically, the structure of the legal profession in Canada is self-governing. Talking about Canadian
law societies and the structure of self- regulation, as we shall see further in this note, self-regulation
by lawyers is carried out through provincial and territorial law societies, and you must be admitted
or licensed as a member of one of these law societies before you can be allowed to practice law in
that jurisdiction.

By structure, law societies are not private bodies; rather, they are delegates of the respective
provincial or territorial legislatures, statutorily constituted and empowered to regulate lawyers in the
public interest; so, they do not possess inherent powers other than those conferred on them by the
legislatures.

For the purpose of self-regulation of lawyers, the powers of these law societies are exercised by
governing bodies or councils, and members of these bodies are elected by members of the
profession.

Law societies have evolved in Canada as instruments of self-regulation of lawyers for over 200
years. It began with the Law Society of Upper Canada which was formed in 1797 to exercise control
over education and admission to the law profession and practice. This was followed over the years
by more delegation of powers to enable the law society regulate the conduct of members through
rule-making and discipline. By middle of 20th Century, law societies in Canada had gained extensive
powers over the admission, conduct and discipline of lawyers in their jurisdictions, including powers
to specify educational and admission qualifications, receive and investigate complaints against
members for improper or unprofessional conduct, and powers to make rules and regulations for the
governance of the society and its members.

However, just like any other delegate, the power delegated to the law societies is significant but not
unlimited. Below are some of the limits on these powers:

1. nature and scope of these powers are specified by the legislatures and limited by the terms
of grant;

2. the legislature still reserves the right to amend and/or take away the power it delegated to
the law societies;
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 3. either or both the delegation of the power and or its exercise may be challenged on the basis
of the Charter;

4. admissions and discipline procedures of members are subject to the supervisory jurisdiction
of the superior courts in the provinces;

5. in some cases, the rules and regulations made by the law societies in matters like education,
discipline, admission, accounting or conduct of members may still be subject to legislative
or government approvals;

6. occasionally, governments do exercise some measure of control in form of periodic

inquiries into the activities of professions and occupations, including law. This is to ensure
more accountability and greater transparency in the discipline and accountability processes.

By the provisions of the Constitution, regulation of law societies is a provincial matter. However, a
type of cooperation in self-regulation has over the last twenty years emerged and this has led to the
formation of the Federation of Law Societies of Canada (FLSC), a co-operative association of all
law societies. The FLSC had engineered some national initiatives, e.g., in 1990 with the national
mobility protocol which makes it easier for lawyers licensed in one jurisdiction to move or practice
in other jurisdictions.

The FLSC has also begun other national initiatives in other areas like legal education, legal ethics,
admission and discipline all geared towards harmonizing the rules and regulations of the various
provincial and territorial law societies and ensuring uniformity in standards.

The FLSC equally developed the Model Code of Professional Conduct as a uniform national code
for lawyers. When a province or territory adopts this Model Code, it serves as the provincial basis
for the regulation of lawyers in that province, in consonance with that obtainable in all other
provinces nationally. Provincial law societies have adopted this Model Code as the core of legal
ethical regulation while some have supplemented it in some ways in order to accord with their local
circumstances.

A point of note, however, is that self-regulation of lawyers has to some extent been diminished by
external law (which e.g., legislate on some aspect of practice or client‘s business), or judicial
decisions (e.g., concerning solicitor-client privilege, client confidentiality and lawyer conflicts of
interest).

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c) The Source, Meaning, Opportunity and Responsibility of Self-Regulation
In Canada, the legal profession is regulated solely by the laws of the provinces and territories which
created the law societies and empowered them. By this law, all lawyers in any province or territory
must belong to a law society. The law prohibits non-lawyers from practising law. The law society
then regulates the admission, conduct and discipline of lawyers. The management and conduct of
the affairs and powers of each law society is vested in a largely elected body known as the Benchers
of each law society.

Self-regulation of lawyers by law societies is as a result of many factors:

1. Long history of self-regulation in the public interest – this draws a connection between
modern law practice in Canada and the law guilds of medieval England (Inns of Court) in
respect of their independent and autonomous position and powers of self-regulation which it
requested and obtained from government. The opinion is that a structure which has evolved
over the centuries and continues to work well should not be interfered with unless there are
strong reasons for change.

Secondly, this historical link makes a connection between the independence of law as a self-
regulating profession with the protection of individual rights and liberties from threats by the
state. Per Estey J. in Canada (A.G.) v. Law Society of British Columbia (1982), ―{T}he
independence of the Bar from the state in all its pervasive manifestations is one of the
hallmarks of a free society….The public interest in a free society knows no area more
sensitive than the independence, impartiality and availability to the general public of the
members of the Bar, and through those members, legal advice and services generally‖

2. Specialized knowledge and expertise of lawyers in relation to that of the client or consumer.
This is because only lawyers are equipped by their education, training and experience to
understand the technical complexity involved in the regulation of lawyers.

3. From the viewpoint of practicality, professions must be self-governing because they alone
understand what their members need to know, how they ought to behave, what constitutes
deviant conduct, and which sanctions ought to be imposed when. And the courts have
accepted this argument; e.g., in Law Society of Manitoba v. Savino (1983), Monnin C.J.M.
observed that, ―No one is better qualified to say what constitutes professional misconduct
than a group of practising barristers who are themselves subject to the rules established by
their governing body‖.
42
 4. It is part of an implied social contract with the state, in which the profession will regulate
itself in the public interest, in return for a monopoly or dominance over the market for legal
services.

5. Because self-regulation is more efficient and cost effective than external regulation. Here,
the costs of administration and enforcement are not borne by taxpayers but by the members
of that profession.

So, when we talk about self-regulation with respect to lawyers, it refers to the control, direction or
governance of lawyers through rules and regulations made by lawyers acting collectively through
autonomous bodies known as provincial law societies. In this sense, self-regulation is undertaken in
the public interest to ensure that legal services are provided to the public ethically and competently
by only those persons qualified to do so.

Again, self-regulation is seen as a bargain or a social contract with the state, which is carried out by
the profession in return of which the state will sanction the domination of the market. In this wise,
the sociological view of profession is that which is limited to a few numbers of people in order to
protect members of the profession from competition against one another and from those outside the
market. Using this approach in legal services, self-regulation is not undertaken for public interest but
self-interest, to exclude certain persons from participation in the market for legal services, to
discourage competition in order to keep prices for services higher than would otherwise have been
in a free and open market.

The economists view professions as unnecessary restraint on the operations of the free market, and
that regulatory restraints placed on entry into a profession and/or on competition between
practitioners are detrimental to consumers because it engenders increased costs and is unfair to
competitors.

Basically, the core of self-regulation, as far as law practice is concerned, is entry and conduct
regulations. Entry regulation concerns admission of qualified persons to law practice. Although
there are differences between jurisdictions, admission into practice basically consists of two stages:
(1) educational requirement, and (2) good character requirement. On the other hand, conduct
regulation is concerned with articulation and enforcement of practice standards.

Over the years, however, the scope of self-regulation in law practice has expanded beyond only
admission and conduct regulation, due to internal and external pressures. Thus, other areas of
regulation now include:
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 - regulation of lawyers‘ accounts through detailed rules and regulations, including audits;

- operation of insurance schemes to compensate clients who suffer losses as a result of

lawyer‘s negligence or fraud;

- maintenance of quality legal services through disciplinary sanctions, continuing education

programs and practice review programs;

- lawyer support services through practice and ethics advise;

- initiatives for those with personal and substance abuse problems.

d) Statutory and Ethical Regimes.

In addition to all the methods of regulation stated above, lawyers‘ conduct may also be regulated by
the following external bodies:

i. The courts – through their pronouncements and decisions on malpractice or professional

liability actions. This is more pronounced in such matters as a lawyer‘s fiduciary duties of
loyalty, avoidance of conflict of interests, and keeping client‘s confidence. The fear that a
lawyer may be held liable in damages for acts, omission or negligence in tort is in itself an
incentive for the lawyer to act competently in the representation of clients.

In the case of Central Trust Co. v. Rafuse (1986), the SCC held that when a lawyer is
negligent in the performance of contractual duties, he or she is open to concurrent liability in
contract and tort and the client is entitled to proceed against him or her either way, depending
on which is most advantageous in terms of damages or limitation periods.

The court further held that the standard of care expected of a lawyer in negligence actions is that
of ―the reasonably competent solicitor, the ordinary competent solicitor and the ordinary
prudent solicitor‖, and not perfection.

A lawyer‘s liability in negligence action may arise out of a mistake in giving of advice; through
a failure to give advice; as a result of an error in the conduct of litigation; as a result of
carelessness in non-contentious business; where the lawyer fails to carry out the necessary
searches or fails to review relevant documents; for missing a limitation period, or for
commencing an action in the wrong court or jurisdiction.

44
 Lawyers in Canada are required to participate in indemnity or insurance schemes operated by
the provincial law society, as a condition of practice. This scheme is to compensate the client
for the loss caused by the negligent misconduct of the lawyer.

ii. Through voluntary membership in professional organizations and groups – these include the
Canadian Bar Association (CBA) which is the only national lawyers‘ organization in Canada
and in existence for over 100 years. It engages in continuing education programs for members
and in law reform advocacy. It also lobbies on matters of professional or popular concern. It
should be remembered that the CBA developed the first code of lawyers‘ ethics in 1920, which
was later substantially adopted by almost all the provinces and today forms the basis of the
Model Code. Though the CBA code may have been discontinued, nevertheless, conduct of
members are guided by practice standards and norms, and peer disapproval of questionable
conduct.

Other groups may focus on lawyers who specialise or practice in a specific area of law, e.g., the
criminal and civil trial lawyers‘ groups, Crown Counsel, insolvency lawyers, etc. These provide
opportunities for guidance on proper conduct, networking as well as serving as platforms for
members to voice their opinions on matters of professional or popular concerns.

The above confirms that self-regulation of lawyer conduct has moved from its historical focus
on admission of practitioners to regulation of professional conduct. And the recent approach is to
move towards a national standard for all provincial law societies where rules and regulations
will be harmonised. This national approach will not only facilitate the mobility of lawyers, but
also strengthen the political position of the bar as a national profession, and provide
opportunities for broad discussions on the standards of lawyer ethics.

e) Education
Each law society has statutory powers to stipulate the academic standards for applicants to their bar,
and these vary from province to province. However, in the move towards adopting a common
national standard, the FLSC has identified specific competencies which each Canadian law school
must ensure that their students achieve so that their law degree would be approved for admission to
the law profession. These competencies include in substantive areas of law, and in practical skills
such as research, writing, and problem-solving.

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For a Canadian law school degree to be approved, it must also include a stand-alone course in
lawyers‘ ethics and professionalism, in which the applicant must have demonstrated an awareness
and understanding of the ethical dimensions of the practice of law in Canada, and an ability to
identify and address ethical dilemmas in a legal context. This includes required knowledge and skills
as follows:

- The applicant must know:

o the law governing lawyers in relation to when ethical issues arise; in relation to fiduciary
duties, conflicts of interest, administration of justice, confidentiality and privilege,
professionalism and the administration of justice;

o the nature and scope of the lawyer‘s duties;

o the range of responses to unethical conduct and professional incompetence;

o different models concerning the role of lawyers.

- The applicant must possess the skills -

o for identifying and making ‗reasoned decisions about ethical problems‘, and
o to think critically about ethical issues.

And for foreign-trained lawyers, the FLSC has established a common process for their admission
which includes possession of the knowledge and skills specified above.

But for commentators like Alice Woolley, the FLSC knowledge and skills requirement may not
necessarily fulfill the desired objectives. In her article, ―Tweeter or Twitter? Teaching a Federation
Approved Legal Ethics Course, Alice identifies the following problems in FLSC‘s law degree
requirements:

1. That as it were, the syllabus for teaching students already contains too much material to
engage the students in the right way, as she (as a lecturer of law) was always running out of
time while teaching in the class; hence, the inclusion of the legal ethics syllabus from FLSC
will only be adding to these materials. According to her, it is better for students to really
understand one concept than to have minimal understanding of many.

2. That the list of competencies specified by FLSC is unrealistic for a single course. According
to her, there is no way a student would acquire the competency contemplated by the FLSC

46
 requirements, in an academic setting, because of the practice-oriented nature of those
requirements.

3. That FLSC reviewing the content and delivery of law school classes may hamper and hinder
the intellectual inquiry and critical discourse which universities are known for, and prevent
the ability to explore new ideas. This ultimately makes it impossible for teachers of these
competencies to enjoy the freedom of academic inquiry and practice.

4. While she recognises that the FLSC wants applicants to have a university course in ethics,
the dictation of its content will eliminate the essential characteristics that would have made it
a university course. The consequence will then be that education in legal ethics course would
no longer be a university education, while the person who provides it would have merely
become a source of information, not a lecturer of law any longer.

f) Good Character Requirement to Practice Law

It is accepted naturally that character determines conduct, hence an applicant to the bar who has bad
character and becomes a lawyer is more likely to act unethically, and more likely to pose a risk to
public interest. Thus, the purpose of the good character requirement is to protect the public, to
maintain high ethical standards as well as to maintain public confidence in the legal profession.

The good character requirement is the second pillar on which admission to the legal profession
stands, the first pillar being educational and licensing qualifications discussed above. And when we
talk of good character, it signifies that the applicant must demonstrate the absence of conduct that
indicates bad character, e.g., not having prior criminal convictions, not having issues of academic
dishonesty, or not attempting to deceive the law society. But it also indicates that if any of such
behaviours has occurred which gives rise to negative inference about character, then the applicant
must demonstrate repentance, rehabilitation and recovery.

 PREYRA v. LAW SOCIETY OF UPPER CANADA (2000)

The Applicant for admission to the bar falsified his credentials in many instances, all in a bid to find
articling position; he made the false representations from 1994 to 1998. In 2000, he applied for
admission to the Ontario bar. The hearing was to determine if the Applicant was of good conduct,
given those events and whether he has changed since November 1998 and had become of good
character as at the time he applied in 2000.

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The Hearing Panel held as follows:

1. That the definition of good character is an evolving definition, and not exhaustive. It refers to a
bundle of attributes which, when taken together amount to good character. ―Good character is
that combination of qualities or features distinguishing one person from another. Good character
connotes moral or ethical strength, distinguishable as an amalgam of virtuous attributes or traits
which would include, among others, integrity, candour, empathy and honesty‖.

2. That the onus is on the Applicant to prove that he is of good character at the time of the
application.

3. That the standard of proof is the balance of probabilities. The relevant test is not whether there is
too great a risk of future abuse by the Applicant of the public trust, but whether the applicant has
established his good character at the time of the hearing on a balance of probabilities. The test
does not require perfection of certainty. The Applicant need not provide a warranty or assurance
that he will never again breach the public trust. The issue for consideration was his character
today (the date of application for admission), not the risk of his re-offending.

4. That being a lawyer is a great privilege; it is a gift, not a right. It is not automatic, and does not
necessarily follow from passing law school and the Bar admission Course. More than simply
meeting the academic standards, the statutory scheme is clear that an applicant must also be of
good character.

5. That the transition from being a person not of good character to one of good character is a
process, not an event. It may or may not happen to someone who was not of good character.

6. That the Applicant has not satisfied the onus of proof, on the balance of probabilities, that he is
now of good character.

 LAW SOCIETY OF UPPER CANADA V. BURGESS (2006)

Applicant for admission had lied to the Law Society concerning an issue of plagiarism while she was
at the University of Toronto. The Panel hearing her admission application concluded that she did not
prove on the balance of probabilities that she was (now) of good character.

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g) Accountability and The Public Interest
Over the years, law societies have continued to emphasize their public interest roles in the regulation
of lawyers. This is basically to rebut the notion that self-regulation of lawyers has rather been in the
self-interest of lawyers, not of the public.

Public interest in relation to lawyers‘ self-regulation is itself an ambiguous and ill-defined concept.
It has traditionally been taken to mean that lawyers are allowed to regulate themselves in order to
ensure that they meet the standards of competence and ethical conduct that is necessary in the
provision of a high quality of legal services to the public. Recently, however, this has been expanded
by legislation and academic commentaries to include issues like improving access to justice,
upholding the rule of law through an independent legal profession, enhancing the administration of
justice, and ensuring greater efficiency, effectiveness, transparency and accountability in regulation.

In Canada, law societies seem to be alert in ensuring that this public interest role is put in the
forefront. They have done this through improvements in the investigation and resolution of
complaints, while the public have been kept informed about the complaint process. Canadian law
societies have continually adapted to challenges in the legal services market so much so that there
has not been much public rebellion against the ideal of self-regulation by lawyers. Thus, there has
been limited outcry against self-regulation which has resulted in the fact that the legislation has not
been changed. This is in contrast to other jurisdictions like United Kingdom and Australia where
consumer service complaints and concerns have led to changes in legislation and governments have
imposed co-regulation between professional bodies and government entities to replace self-
regulation. These government entities deal with complaints of the public about legal services and
share regulatory responsibilities with the lawyers‘ professional bodies.

Notwithstanding the attentiveness of Canadian law societies in protecting public interest in the
provision of legal services, regulatory changes have not been uniform across the country. This has
been due to many reasons including the sizes and resources of respective law societies which has led
them to adopt changes at their individual paces. But most of these regulatory changes have generally
taken place in the following areas:

1) National versus provincial approach to regulation: spearheaded by the FLSC, there have
been recent moves by the provincial law societies to collaborate on national levels. This
began with the National Mobility Agreement which facilitated lawyers‘ mobility between
provinces. The FLSC has expanded these initiatives to cover issues relating to:
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 a. uniform national standard for the accreditation of law school programs through the
National Requirement for Common Law Degree Program;

b. a uniform national code of professional conduct through the Model Code, which is
subject only to some variations in provincial rules of professional conduct;

c. harmonization of provincial discipline processes. The initiative on a National

Discipline Standard provides for guidelines that make complaints and formal
discipline process more responsive, transparent, effective, efficient and fair,
nationally;

d. harmonization of admission standards, which though has not been as successful as

the other initiatives. Most provincial law societies still rely on their individual bar
admission programs. Nevertheless, most of the provinces have signified their
agreement to the standardization of common law legal education and some form of
assessment and training as preconditions for licensing.

2) Most provinces have moved from disciplinary procedures/hearings headed by committees or

convocations (elected benchers of governing bodies) to the full-fledged panel or tribunal
system of adjudication, whether in discipline or licensing matters. This is reflected in
Alberta, British Columbia, Nova Scotia and Ontario, and has helped in separating the policy-
making duties of the benchers from their adjudicative roles.

3) Many provincial law societies have equally broadened (or are contemplating to broaden)
their regulatory scope to include independent paralegals, law firms, alternative business
structures (ABSs), legal services providers, multi-disciplinary partnerships, and non-lawyer
investment or ownership of law firm, including equity financing. Ontario and BC have
implemented some of these initiatives, while others are still exploring the possibility.

4) Many law societies have consulted on adopting a more pro-active method of regulation
which will be compliance-based, and outcomes and risk-focused. This will not replace but
augment the existing reactive method which is rules-based and complaint-driven. Though
information on these new initiatives is still sketchy, it is expected to lead in the long run to
reduced number of complaints and formal discipline action. With this method, once a law
society has activated its relevant standards, lawyers and law firms will be expected to
address them through their ―ethical infrastructure‖, ( a term which refers to the organization,

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 systems, structures, policies and operating procedures developed by law firms themselves to
ensure that their lawyers and support staff comply with their ethical duties). Here, the
emphasis will be on encouraging and assisting lawyers and law firms to develop and
implement management policies that are appropriate to their size and circumstances, in order
to support the competent and ethical delivery of services. It will no longer be one size fits all
as far as regulation is concerned but a system of self-assessment specific to each practitioner.

h) Competence, Quality, Candour

As seen in the case of R. v. Neil (2002), the SCC held that once a lawyer-client relationship is
formed, it becomes a fiduciary duty in which the lawyer owes the client the duty of loyalty. This
duty of loyalty has many dimensions, and includes the duty to provide competent advice and
representation, preserve client‘s confidence and avoid conflicts of interest.

There are provisions in the Model Code which tend to substantiate this duty that lawyers should be
competent and render quality service to their clients. Rule 3.1-1 defines the competent lawyer as she
―who has and applies relevant knowledge, skills, and attributes‖ in the appropriate manner to the
client‘s matter. Some of these knowledge, skills and attributes are said to include knowing the
general legal principles and procedures, and substantive law and procedures for the areas of law the
lawyer practises. The Rule contains an exhaustive list of these knowledge, skills and attributes and
how to apply them. Whether this provision is adequately enforced is another matter entirely.

So, there are two possible legal angles to addressing the issue of lawyer incompetence, viz:

1. Through the law on lawyer malpractice (primarily negligence). In Central Trust Co. v.
Rafuse, the SCC held that the appropriate standard of care for a lawyer is that of the
reasonably competent solicitor.

2. Through the Model Code, which seeks to make express provisions regarding lawyer‘s
Competence in Rule 3.1 and Quality of Service in Rule 3.2.

 NOVA SCOTIA BARRISTERS’ SOCIETY V. RICHEY (2002)

In finding member Richey guilty for professional misconduct and professional incompetence, the Nova Scotia
Barristers‘ Society (NSBS) specified:

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 1. That the finding of incompetence was based on the predictability and consistency of the pattern of such
acts by the member.

2. That in finding Richey guilty of incompetence, it was not concluding that he was generally and generically
incompetent; the allegation of incompetence was fact and time specific, and does not infer that Richey was
incapable of meeting generally accepted standards of practice. In fact, the evidence supported that Richey
was a senior and experienced member of the litigation bar, who could be a most competent and
conscientious practitioner of law when he committed to doing so.

3. However, when a pattern of poor judgment emerges, as it did in the instant case, then good lawyering skills
in some files is no defence to incompetent lawyering in other files.

 LAW SOCIETY OF ALBERTA V. SYED (1994)

Syed was charged with allegation of failing to serve his client in a diligent, conscientious and efficient manner.
The allegations surrounded his representation of an accused in a criminal matter. At the hearing, Syed had
admitted that he failed to consult the accused before making an election, and also failed to explore available
potential defences, amongst others. Syed admitted that his conduct came close to, but fell short of
incompetence and pleaded for a reprimand. Based on his admission, Syed was reprimanded.

Cultural Competence
Some lawyers have argued that lawyers should also be culturally competent. This refers to requiring
lawyers to be in tune with the client‘s cultural context in order to be able to give competent advice.
This requires knowledge, skills and attitude.

Effective cross-cultural communication has been described as the ability to communicate with
individuals from other cultures in a way that minimizes conflicts, promotes greater understanding
and maximizes the ability to establish trust and respect. It requires lawyers to learn how to properly
interpret non-verbal and verbal cues.

Cultural competence is not instantly attained and mastered, but is rather a skill that develops over
time through extensive training and exercising. Lawyers who work to attain cultural competency
skills will be able to establish a greater rapport with clients from diverse cultural backgrounds. Such
a lawyer will therefore be better able to represent the client‘s interest.

 R. V. FRASER (2011)
Appellant, a black teacher was convicted of touching a white female student for sexual purpose.
Before jury selection, Appellant had raised his concerns with his lawyer about an all-white jury who
52
 might discriminate against him. The lawyer did not tell Appellant of his right to challenge for cause
in line with R. v. Parks case, in spite of his concerns. The lawyer was also alleged not to have been
effective in preparation for trial.

The NS Court of Appeal held that Appellant was entitled to a new trial. The CA found that the
lawyer‘s failure to provide advice to the Appellant in response to the client‘s explicit and perfectly
reasonable worries, effectively denied the client his statutory right to challenge potential jurors for
cause.

The court further held that lawyers‘ performance should never be gauged on a standard of perfection,
nor subjected to a forensic audit whenever unfavourable results occur. The effectiveness of counsel is
to be evaluated on an objective standard through the eyes of a reasonable person such that all an
accused can expect of his or her defence counsel is a level of competence based on a standard of
reasonableness. In other words, the lawyer is ―required to bring reasonable care, skill and knowledge
to the performance of the professional service which he has undertaken,‖ (Central Trust Co. v.
Rafuse).

Competence issues may also arise when representing clients with mental health and diminished
capacity. Here, the major ethical challenge is how to resist the urge to override the client‘s
autonomy and substitute same with the lawyer‘s understanding of what will be in the client‘s best
interest.

To address the issue of competence, many law societies have initiated mandatory continuing legal
education programs. These programs come with different variations depending on the province, but
all with the same objective of ensuring that lawyers undertake ongoing professional developments,
to keep them abreast of developments and changes in the Canadian legal system.

Finally, in advising and representing a client, the lawyer‘s duty of loyalty requires her to disclose all
material facts relating to the matter for which she was retained. The Model Code in Rule 3.2-2
requires the lawyer to be honest and candid.

Quality

Lawyers provide legal services to members of the public, and it is generally required that the quality
of service provided must command the confidence and respect of the public. The only way the
lawyer can achieve this is if the lawyer establishes and maintains a reputation for both integrity and
high standards of legal skill and care.

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Rule 3.2-1 of the Model Code stipulates as follows:

A lawyer has a duty to provide courteous, thorough and prompt service to clients. The
quality of service required of a lawyer is service that is competent, timely, conscientious,
diligent, efficient and civil.

This speaks to the quality of service that must be rendered by every lawyer. According to
Commentaries [1 – 2], the requirement to provide quality service must be read in conjunction with
the requirement that a lawyer must be competent, as discussed above. Therefore, a lawyer has the
duty to provide a quality of service that is, at least, equal to that which is generally expect of a
competent lawyer in a like situation.

As part of the duty to provide acceptable quality of service, the lawyer must communicate
effectively with the client, as dictated by the nature of the retainer, the needs and sophistication of
the client, and by the need to enable the client make fully informed decisions and provide
instructions. It may equally relate to billing and financial transactions between the lawyer and client.

Quality of service also requires the lawyer to ensure that matters are attended to within a reasonable
time frame and that she is able to meet deadlines. And where the lawyer reasonably foresees that her
schedule may occasion undue delay to the client, the lawyer has a duty to so inform the client so as
to enable the client make informed decisions, including whether to retain a new counsel.

Commentary [5] provides a long, non-exhaustive but illustrative list of ―expected practices‖, i.e., the
type of quality service that is expected of a lawyer, as follows:

1) keeping a client reasonably informed;

2) answering reasonable requests from a client for information;

3) responding to a client‘s telephone calls;

4) keeping appointments with a client, or providing a timely explanation or apology when

unable to keep such an appointment;

5) taking appropriate steps to do something promised to a client, or informing or explaining

to the client when it is not possible to do so;

6) ensuring, where appropriate, that all instructions are in writing or confirmed in writing;

7) answering, within a reasonable time, any communication that requires a reply;

8) ensuring that work is done in a timely manner so that its value to the client is maintained;

54
 9) providing quality work and giving reasonable attention to the review of documentation to
avoid delay and unnecessary costs to correct errors or omissions;

10) maintaining office staff, facilities and equipment adequate to the lawyer‘s practice;

11) informing a client of a proposal of settlement, and explaining the proposal properly;

12) providing a client with complete and accurate relevant information about a matter;

13) making a prompt and complete report when the work is finished or, if a final report cannot
be made, providing an interim report when one might reasonably be expected;

14) avoiding the use of intoxicants or drugs that interferes with or prejudices the lawyer‘s
services to the client;

15) being civil.

In Law Society of Ontario v. Di Giacomo, 2021 ONLSTH 159, the lawyer had admitted to misconduct
involving 84 investor clients, 16 separate syndicates and 16 real estate projects. All of the projects failed and
all of the clients lost some or all of their investments. The Hearing Panel found that the lawyer totally ignored
his obligation to serve the interests of his clients and failed to communicate with his clients; he did not obtain
their consent to a joint retainer; he never disclosed conflicts of interest which arose due to the interests of his
father; he misstated and misrepresented many facts in communications with his clients and other counsel; and
he also failed to disclose many relevant facts. Rejecting a joint recommendation of a one-year suspension, the
Hearing Panel cited the SCC decision in Pharmascience v. Binet, where the Court held thus:

The privilege of professional self-regulation therefore places the individuals responsible for
enforcing professional discipline under an onerous obligation. The delegation of powers by
the statute comes with the responsibility for providing adequate protection for the public.
Finney confirms the importance of properly discharging this obligation and the seriousness
of the consequences of failing to do so.

Please note that the Rule does make provision for occasional failure to provide adequate quality of
service even by the ordinarily or otherwise competent lawyer. See Commentary [2] to Rule 3.2-1.
But it is established that the cumulative effect of multiple occurrences in totality can amount to a
marked departure from the quality of service required of lawyers, and that such conduct displays
gross culpable neglect of a lawyer‘s duties, where individual occurrences may not.

It has also been suggested that the envisaged quality of service may include keeping pace with
technological developments, so that the lawyer‘s proficient use of technology, combined with risk

55
avoidance techniques, will aid in satisfying the lawyer‘s duties of confidence, competence and
quality of service while maintaining compliance with the rules of professional and ethical conduct.

Candour

Rule 3.2-2 sets out what is required of a lawyer to fulfil her duty of candour. It says that when
advising a client, the lawyer must be honest and candid and inform the client of all information that
is known to the lawyer but which may affect the interests of the client in the matter. This will
include:

- disclosing to the client all the circumstances of the lawyer‘s relationship with the parties or
interest involved in the matter,
- giving the client a competent but candid opinion about what the lawyer honestly thinks
about the merits and probable outcome of the matter, with regards to the applicable law. See
Commentaries [1] and [2].

This duty extends to advice or opinion previously given to a client when it turns out that the lawyer
has a personal interest in the matter. In Strother v. Law Society of British Columbia, the Hearing
Panel found that the lawyer committed professional misconduct by failing to disclose to the client
his financial interest in a potential competitor and by failing to advise the client that his previous
legal advice needed to be reconsidered. The Court of Appeal for BC dismissed the lawyer‘s appeal
and upheld the Panel‘s findings of professional misconduct.

The lawyer‘s duty of candour also applies with regard to matters relevant to the retainer. In
McKercher v CN Rail, the SCC held that the duty of candour was breached by the lawyer not
telling CN about the existing Wallace retainer. The Court noted that the duty of candour is one of
the three dimensions of the duty of loyalty, (the other two being a duty to avoid conflicts and a duty
of commitment to the client‘s cause).

The lawyer must keep the client informed when an error is discovered. In Law Society of Alberta
v. Schuster, the Alberta Court of Appeal upheld the discipline finding against a lawyer who failed
to inform his client of an error that led to the client depositing $300,000 into the wrong trust account
and which was not immediately retrievable. The Court held that the error was material, and
notwithstanding that the client had elected not to be kept informed of all the operational details of
the project, this error should have been disclosed to the client.

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However, the duty of candour does not prevent the lawyer from being firm (not rude) with the client.
The lawyer is entitled to express his disagreement with a client‘s perspective or about the client‘s
position on a matter. She may then give her advice, even if same is not pleasing to the client.

The lawyer‘s duty of candour is not only to the client. While the lawyer has a duty of honesty and
candour to the client and must provide informed and independent advice, the duty must be
discharged honourably by treating the tribunal with candour, fairness, courtesy and respect. A
lawyer must not knowingly misstate facts or law, the contents of a document or assert as true a fact
when its truth cannot reasonably be supported by the evidence. As officers of the court, lawyers
have an overriding duty to ensure that they provide accurate information to the court, opposing
counsel and self-represented litigants. When lawyers fail in this duty, the integrity of the profession
and the administration of justice are compromised. It is no excuse that a lack of candour may inure
to the client‘s benefit. This is because, as a counsel once stated, ―judges have a right to presume that
a lawyer‘s word is gold‖.

Lastly, the duty of candour equally extends to the lawyer‘s relationship with and responsibility to
other lawyers. According to Rule 7.2-1, ―A lawyer must be courteous and civil and act in good faith
with all persons with whom the lawyer has dealings in the course of his or her practice‖. The
Commentaries elaborate on this by demanding that lawyers must not allow any ill-feeling between
the clients to influence their conduct and demeanour toward each other or the parties. A lawyer
should avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges
of other lawyers but should be prepared to advise and represent a client in a complaint against
another lawyer, when requested. A lawyer should also agree to reasonable requests as regards trial
dates, adjournments, waiver of procedural formalities or other matters that do not prejudice the
client.

i) Admission, Conduct and Discipline

As briefly stated in chapter 2(b) above, the core of lawyer self-regulation is on admission and
conduct, and which has now expanded to other areas like discipline, accounts, etc. In this section,
we will again examine the scope of self-regulation by the law societies in the areas of admission,
conduct and discipline.

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Admission

Admission is a provincial affair and the law societies of each province has the constitutional powers
as delegated by the legislature to regulate admission into legal practice. Historically, admission into
the practice of law was through articling to a principal for a period of five years. But today,
admission into practice demands applicants to undertake a period of academic study at the
university, then about three years at the law school and a period of articling of between 8 – 12
months, depending on the province. Then the candidate is required to pass bar examinations.

The second part of this admission process is the requirement that candidates must be of good
character before being allowed admission into the law society. However, there is a lack of statutory
definition of ―good character‖ or ―good character and reputation‖ which has led to the inconsistent
and unpredictable administration of this requirement. But generally, applicants are required to
complete questionnaires and to self-report on issues like criminal convictions, bankruptcy orders,
substance abuse problems and similar issues which may raise concerns about their fitness to practice
law. In addition, candidates are usually required to obtain 3rd party certifications or references which
attest to the candidates‘ good character.

Conduct:

This is the second core area of self-regulation and has to do with the control of the conduct of
lawyers through articulation of professional standards and their enforcement through professional
discipline. In addition to discipline, lawyers‘ conduct is also regulated through rules and regulations
in such areas as keeping of accounts and records, liability insurance and establishment of codes of
ethics or conduct.

Traditionally, no law society had any written statement of standards or rules of professional conduct
for lawyers. At this time, regulation of lawyers was largely a matter of compliance with standards
dictated by ethics and etiquette expected of a gentleman. As years went by, many leaders of the
Canadian legal profession advocated the need for written rules of conduct as opposed to informal
regulation based merely on vague community standards. This was seen as inadequate for
professionalism, self-governance and service in the public interest.

Then, in 1920, the Canadian Bar Association promulgated its ―Canons of Ethics‖ which was meant
to be ―a correct, though inexhaustive, statement of some of the ethical principles which should be

58
observed by the members of the legal profession‖. The canons were to be ―construed as a general
guide‖, since it is ―not possible to frame a set of rules which will particularize all the duties of the
lawyer in all the varied relations of his professional life….‖ The canons contained statements of the
lawyer‘s duties to the state, to the court, to the client, to his fellow lawyer and to himself.

Since the Canadian Bar Association (CBA) is a voluntary organization, the rules of conduct
contained in the canons were not mandatory. The CBA adopted a new Code of Professional
Conduct in 1974 which were more comprehensive than the one of 1920. Yet, the tone was more
aspirational than mandatory and only sough to exhort lawyers to maintain the highest standards of
ethical practice. The Code was substantially revised in 1987 but still retained the format and
aspirational language.

These codes now served as the basis for rules of professional conduct in many provincial law
societies. Many of them adopted the codes without amendment while others used the codes as the
basis for their own rules of conduct. However, Alberta in 1995 promulgated the most detailed code
which it titled Code of Professional Conduct. In radical departure from the tone of the CBA‘s code,
the CPC extensively employed mandatory language and made specific proscriptions.

As a result of this, the CBA and several law societies have had to amend their rules of professional
conduct on several occasions to ensure clarifications and to deal with new issues arising from law
practice. This has the unintended effect of ―balkanization‖ of Canadian ethics in which each
jurisdiction had its own specific rules on ethics. To tackle this situation, the CBA in 2009
promulgated its Code of Professional Conduct which was designed to have a national, uniform code
on ethics while the FLSC also followed suit with its Model Code of Professional Conduct in the
same 2009. In 2011, the FLSC added the rules on conflicts to its Model Code, and along with the
CPC, both codes offer a more comprehensive and detailed rules of professional conduct for
Canadian lawyers on a national level. But unlike the aspirational language of earlier codes, the
Model Code employs mandatory language (―must‖) to prescribe some of the duties, responsibilities
and obligations of lawyers.

These codes are being regularly revised and reviewed. Provincial law societies still choose to adopt
either of these codes, (though majority has adopted the Model Code), and when the last law society
moves to the Model Code, it will end CBA‘s almost one hundred years of involvement in the
development of ethical codes for Canadian lawyers.

Written rules of professional conduct have not gone without criticisms, as follows:
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- Some have criticized the lawyers‘ codes on the basis that ethics is a matter for personal decision
or choice, and therefore, it is not possible to regulate ethical behaviours through detailed
specific rules because ethics cannot be legislated; a person either acts ethically or not.

- Some have argued that ethical codes have nothing to do with morality, since matters of morality
are so indeterminate. Hence, they are too extensive to leave in the hands of CBA or FLSC to
make a collective statement as regards lawyers‘ moral conduct.

- Some have suggested that ethics code serve the profession‘s parochial interest more than public
interest, because it is used to legitimize monopoly of the market for legal services, and because
the codes are promulgated by lawyers for lawyers without any public input, among other
reasons.

- Others have argued further that ethics codes are instruments of bias, used by the elites in the
legal profession to suppress those elements of the profession they do not approve of.

- Finally, some critics claim that written codes of conduct are ineffective instruments of
regulation. This is because different elements of the profession work in different and diverse
contexts, and all view the obligations imposed by the codes differently. Some do not even refer
to the codes at all to resolve their ethical issues.

Discipline
Professional discipline of lawyers is the necessary consequence following control of conduct. Once
a rule of professional conduct has been specified, it automatically follows that any breach of that
rule must be met with professional discipline or sanction.

The power to discipline lawyers for professional misconduct was acquired gradually by the law
societies at various stages. This power grew incrementally to the stage where virtually all law
societies across Canada now dedicate extensive organizations and resources towards discipline.
Today, all law societies are empowered by legislation to discipline lawyers for ―professional
misconduct, ―conduct unbecoming a barrister and solicitor‖, or ―conduct deserving of sanction‖.

The use of a broad language in defining what constitutes misconduct is a way of giving the
governing bodies the latitude to review the alleged conduct and determine whether it is so,
depending on the circumstances of the situation, the law and the professional norms and standards.
Thus, governing bodies of the law societies may discipline for conduct which may not be a breach
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of the law or a violation of a rule of professional conduct but which nevertheless is deemed to be a
misconduct. The same applies to misconduct which was not anticipated at the time of promulgating
the rules.

While the power to discipline still remained provincial, the FLSC has striven to ensure a national
standard in the handling of clients‘ complaints and the discipline of lawyers. The FLSC generated
national initiatives in this aspect so that discipline of lawyers will remain on the same standard
throughout the provinces, in line with the ―pan-Canadian‖ national practice vision of FLSC and the
increased mobility of lawyers across Canada.

Generally, the professional discipline of lawyers is aimed at achieving the following purposes:

- As a core aspect of self-regulation, not primarily to discipline the offending lawyer but to
protect the public.

- To protect the profession‘s reputation through establishment and enforcement of standard

conduct.

- To reassure the public that notorious depredations by lawyers are being handled appropriately.

- To deter other lawyers from breaching professional standards.

Professional misconduct by lawyers has, therefore, been generally defined in terms of disgraceful or
dishonorable conduct. This has largely revolved round the following complaints of:

- theft. fraud, forgery or some other criminal offence;

- violation of fiduciary duty imposed by law;

- inability to carry on practice due to physical or mental disability or serious addiction; and,

- failure to respond to inquiries from the governing body.

From 1970, however, the scope of lawyer discipline has been expanded to address the issue of
incompetence in the delivery of legal services. Under Rule 3.1-2 of the Model Code, for instance, a
lawyer has an ethical duty to perform any legal services undertaken on a client‘s behalf to the
standard of a competent lawyer. This standard was defined at length in Rule 3.1-1. In addition to
disciplinary sanctions, lawyer‘s incompetence may be addressed through some remedial measures,
e.g., that the lawyer concerned should undertake continuing examination courses or to pass special
examinations. Jurisdictions like the Law Society of Ontario has adopted a more proactive measure
of practice review of junior lawyers to ensure competence.
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While professional misconduct is in relation to a lawyer‘s professional activities, conduct
unbecoming a barrister and solicitor is taken to deal with conduct arising out of the private and
personal life of the lawyer which tend to bring discredit upon the profession. This is also known as
extra-professional misconduct and includes:

- dishonest conduct;

- certain kinds of criminal conduct. See, e.g., Law Society of Alberta v. Sychuk where an
Alberta professor, lawyer and bencher was barred after his conviction for the murder of his
wife. His application for reinstatement after parole was also rejected;

- taking advantage of the age, ill health or lack of education or sophistry of the other person;

- generally, any conduct which calls into question the lawyer‘s ability to practice. Canadian
lawyers have been disciplined (though mildly) for conducts as varied as public nudity, failing
to care for animals at the lawyer‘s farm, and writing a bad cheque to a landlord.

Like it applies with conduct, each provincial law society has its specific rules and regulations when
it comes to discipline procedure. But generally, discipline procedures involve the complaint
investigation stage, the hearing stage, and the penalty stage. However, to enhance uniform
standards, transparency, timely disposition of complaints, the FLSC has promoted the Federation of
Law Societies Discipline Standards Initiative. This initiative deals with issues like timeframe for the
processing of complaints; conduct of discipline hearings, participation of the public in the complaint
review and discipline process, orientation and training of investigators and adjudicators on an
ongoing basis, etc.

As earlier stated, most law societies have made moves towards the tribunal system of formal
discipline adjudication, to enhance their complaint and discipline adjudication. Leading the pack is
the 2010 establishment by the Law Society of Ontario of its independent discipline tribunal of 3, 5,
or 7 members (comprising benchers, lawyers and members of the public) and headed by a full-time,
non-bencher chair. Other law societies have also made similar moves.

After the investigation at this complaint stage, the matter moves to the hearing stage which is
adversarial in nature. This means that the law society through its counsel must prove the allegation
of misconduct levelled against the lawyer. This level of proof is a balance of probability and the law
society must provide all the facts and evidence in support of the allegation of misconduct. This
higher level of proof is due to the fact that someone‘s livelihood and reputation is at stake.

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It is important to note that, because discipline proceedings are authorized by statutes, they are
subject to Charter scrutiny. Under the Charter, section 7 may apply in terms of constitutionally-
guaranteed procedural rights but section 11 may not apply since discipline proceedings are
regulatory in nature, and not criminal or penal. Therefore, adjudicators have a duty to balance the
protection of Charter-guaranteed rights and freedoms with the objects and purposes of regulation.

Discipline procedure may also be subject to common law judicial review. And since it is required
that the panel‘s decision must be in writing, the panel is under obligations to provide reasons for its
decision, except where it concerns issue of jurisdiction. But since self-regulation relies heavily on
the expertise of lawyers in the assessment of the alleged misconduct, the court may defer to the
discipline tribunal in the review of discipline decisions.

Discipline hearing procedure are generally characterised into three stages: -

1) the panel must first determine whether the facts have been established;

2) the panel must determine whether the facts of the alleged misconduct, as proven, constitute
professional misconduct or conduct unbecoming a barrister and solicitor, and

3) the panel must determine what would be the appropriate penalty under the circumstances.

In arriving at an appropriate sanction, the panel may consider matters like the nature and extent of
injury to others, the blameworthiness of the offending lawyer‘s conduct, and past penalties imposed
for similar misconduct. Some factors may also be considered which may mitigate or aggravate the
extent of sanction/penalty, e.g., the general reputation of the offending lawyer; her conduct towards
discipline; whether or not restitution has been made; whether this was an isolated or recurrent event;
the lawyer‘s prior medical record, her mental state, the need to deter others, etc.

In terms of sanctions, the main objective is the protection of the public or the protection of the
profession, not primarily the punishment of the lawyer. Albeit, the sanction or punishment imposed
may severely affect the livelihood or reputation of the lawyer involved. These sanctions range in
severity depending on the misconduct and include:

- reprimand, (which may or may not be public. This is generally the least severe sanction).

- fine

- suspension from practice or an area of practice (for a period of time or indefinitely)

- imposition of practice conditions

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- disbarment (the most severe sanction, and is least frequently imposed).

As noted above, a lawyer disciplined for incompetence may also be mandated to undergo remedial
training/further education or be restricted to an area of practice or be ordered to practice under the
supervision of another lawyer. The lawyer who has been disciplined may also be ordered to pay the
cost of the investigation and hearing, which could be heavy at times.

Suspension disallows the lawyer from legal practice during the period of suspension. And where the
suspension is for an indefinite period, the lawyer may be required to apply for reinstatement.
Disbarred lawyers may also be allowed to apply for reinstatement although in this case, the standard
of re-admission is very high as the concerned law society is conscious of its reputation and must be
convinced that the offending lawyer‘s rehabilitation has been total and genuine.

Decisions of disciplinary hearing panel may be subject to appeal, either to an appeal panel (or to the
benchers as a whole) or to the court or to both.

j) Unauthorised Practice
This refers to the practice of law by persons not licensed to practice law. Prohibition of unauthorised
practice of law is said to aim at protecting the monopoly of lawyers in the provision of legal services
and to preserve principles such as client‘s confidentiality and evidentiary privilege, and to offer such
other protections like mandatory liability insurance and compensation funds. It is an offence
punishable under provincial legislations, e.g., the Legal Professions Act and the Law Society Act.
For example, section 50(1) of the Law Society Act provides as follows:

Except where as otherwise provided by law,

(a) No person, other than a member of whose rights and privileges are not suspended, shall
act as a barrister or solicitor or hold themselves out as or represent themselves to be a
barrister or solicitor or practice as a barrister or solicitor.

Punishment here ranges from fine even to imprisonment in certain cases. It could also be a
punishable offence for someone to represent himself/herself as a barrister and solicitor when in
actual fact he/she is not.

There are, however, some certain exceptions to the unauthorised practice of law, and these include:

- The right of an individual to represent himself or herself in legal proceedings before a court
or tribunal, or to prepare documents having legal effects.
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 - The right of persons entitled to act as agents of another in judicial or administrative
proceedings.

- Articling students working under the supervision of a licensee.

Paralegal services have also been established as a means of offering legal services to the public at
lower costs in matters like traffic tickets, immigration, uncontested divorce, criminal pardons and
civil disputes before provincial courts.

Of course, the term unauthorized practice of law has had little or no legal definitions because
legislative proscriptions have often been too broad and lack precise definitions. And critics have
argued that non-lawyers who provide some aspect of legal services at a lower cost should be
allowed to continue, rather than be legislated out of competition. More so, because even the bulk of
matters handled by these non-lawyers are handled by staff in the lawyer‘s office, e.g., law clerks or
paralegals.

Since the protection of public interest has been the major basis for proscription of non-lawyers from
providing legal services, some have argued that this could be better achieved by some form of
regulation, rather than proscription. In response to this, some provinces have taken steps to regulate
how non-lawyers provide legal services to the public. For example, the Ontario legislature in 2006
enacted the Access to Justice Act, 2006 which brought independent paralegals under the regulatory
control of the Law Society of Ontario. Under this regulatory framework, paralegals would be
regulated, educated, licensed and insured to provide legal services in the following areas:

- Representation in matters before the Small Claims Court, provincial boards and agencies;

- Representation in provincial offences like highway traffic cases.

A Paralegal Code of Conduct was also devised that prescribes procedures for discipline. Despite
this limited scope of paralegal areas of practice, the scheme is seen as a success since the first
paralegal licenses were issued in 2008. However, no other province has so far followed in Ontario‘s
steps as far as regulation and licensing of paralegals is concerned.

k) Language Rights
The language rights of a client are governed by the following rules and commentaries in the Model
Code:

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 3.2-2A - A lawyer must, when appropriate, advise a client of the client‘s language rights,

including the right to proceed in the official language of the client‘s choice.

3.2-2B Where a client wishes to retain a lawyer for representation in the official language

of the client‘s choice, the lawyer must not undertake the matter unless the lawyer is

competent to provide the required services in that language.

Commentary

1) The lawyer should advise the client of the client‘s language rights as soon as
possible.

2) The choice of official language is that of the client not the lawyer. The lawyer should
be aware of relevant statutory and Constitutional law relating to language rights
including the Canadian Charter of Rights and Freedoms, s. 19(1) and Part XVII of
the Criminal Code regarding language rights in courts under federal jurisdiction and
in criminal proceedings. The lawyer should also be aware that provincial or territorial
legislation may provide additional language rights, including in relation to aboriginal
languages.

3) When a lawyer considers whether to provide the required services in the official
language chosen by the client, the lawyer should carefully consider whether it is
possible to render those services in a competent manner as required by Rule 3.1-2
and related Commentary

 Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 36.

Clearly, a major objective of the Act is to create a self-regulating professional body with the authority to set
and maintain professional standards of practice. This, in turn, requires that the Law Society perform its
paramount role of protecting the interests of the public. As D. A. A. Stager writes in Lawyers in Canada
(1990), at p. 31: ―The privilege of self-government is granted to professional organizations only in exchange
for, and to assist in, protecting the public interest with respect to the services concerned‖ (see also Pearlman,
supra, at pp. 887-88).

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l. Equity, Diversity and Inclusion (regarding clients and the legal profession)

Equity, diversity and inclusion may mean a lot of things, depending on the context. But as regards
clients and the legal profession, the concept of equity, diversity and inclusion (EDI) essentially
refers to access to legal services by equity-seeking groups. The aim here is to foster an inclusive
justice system by ensuring that clients from all cultural, racial and gender backgrounds have
substantially equal access to the provision of legal services.

It has always been a significant challenge to ensure that the legal profession is representative of the
Canadian society so that it can be competent in meeting the diverse legal needs. Thus, the legal
profession has struggled for many decades in ensuring that the under-represented group of clients
had equal access to the provision of legal services. To this end, continuous efforts have been made
to find avenues for addressing the issues of equity, diversity, and inclusion in the legal profession in
many areas, including clients‘ representations.

As part of the requirements of professionalism on the part of all lawyers, they are encouraged to
participate in community activities that will enhance the legal profession and respect the diversity of
the communities in which they practice their profession. In addition to exhibiting cultural
competence as explained above, lawyers must also incorporate in their practice the principles of
equity, diversity and inclusion to ensure that all their clients receive equally effective and respectful
service and treatment.

While the Model Code has no specific provisions on EDI, many law societies have begun to insert
requirements of EDI in their rules in relation to clients, among others. For example, licensees of the
Law Society of Ontario were once required to write and submit individual Statement of Principles
(SOP) about how they were promoting diversity with colleagues, employees, clients and the public.
Although the SOP requirement is now repealed, a template of the Statement provided thus:

―As a licensee of the Law Society of Upper Canada, I stand by the following
principles:

•A recognition that the Law Society is committed to Inclusive legal workplaces in

Ontario, a reduction of barriers created by racism, unconscious bias and
discrimination and better representation of Indigenous and racialized licensees in
the legal professions in all legal workplaces and at all levels of seniority;

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 •My special responsibility as a member of the legal profession to protect the dignity
of all individuals and to respect human rights laws in force in Ontario;

•A commitment to advance reconciliation, acknowledging that we are collectively

responsible to support improved relationships between Indigenous and non-
Indigenous peoples in Ontario and Canada; and,

•An acknowledgement of my obligation to promote equality, diversity and inclusion

generally and in my behaviour towards colleagues, employees, clients and the
public.‖

Therefore, lawyers, as service providers, must ensure that their conduct to their clients does not
discriminate; rather, they must deliver ―substantive equality‖ which is the legal standard for
measuring equality in Canada. Substantive equality looks to the actual impact of policies, practices
and actions on people, because equality may not arise from treating all individuals identically. It
means giving extra help when it is needed and ensures that application of the law does not reflect,
through its impact or effects, the hierarchies of status that exists between citizens within the
Canadian society.

With regards to the provision of legal services therefore, substantive equality may also mean equity
since equality involves recognising differences (like sex, race, ethnicity, disability) when they are
becoming disadvantages. Therefore, a lawyer must ensure substantive equality in the provision of
legal advice, guidance, opinions or representations to members of these disadvantaged groups by
recognising that for people to be equal, different treatment is often required. For example, a lawyer‘s
office must have access that does not discriminate against clients with disability or against women
with young children by forcing them to enter through the loading dock or a service entrance instead
of the general entrance. A lawyer with the required professional competence must provide
substantive equality for indigenous clients and other disadvantaged groups without discrimination.

Inclusion, on its part, requires that the lawyer employs cultural competence to enable her achieve
substantive equality. It is a qualitative measure. With regards to clients, inclusion as a social tool is
used to measure the degree to which a lawyer‘s practices and policies are universally accessible by
those disadvantaged groups. It incorporates the different social environments and thereby provide
substantive equality in the manner of provision of legal services to the clients.

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According to the authors of ―Diversity and Inclusion in the Legal Profession‖,
2019 CanLIIDocs 3821, inclusion connotes ―Creating an environment in which people feel
involved, respected, valued, and connected – and to which individuals bring their ‗authentic‘ selves
(their ideas, backgrounds, and perspectives) to their work with colleagues and clients‖.

On the other hand, diversity is a quantitative measure which seeks to ascertain how many people
from different communities are present in a specific social environment. In relation to clients and the
legal profession, diversity may be used to measure the degree or number of people from different
communities that are present in a lawyer‘s clientele. The aim is to increase the numerical
representation of clients from these disadvantaged groups. The end of diversity is also to achieve
substantive equality.

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 Section B

ETHICS, LAWYERING AND PROFESSIONAL

REGULATION

Model Code, ―Preface‖, ―Definitions‖, Chapter 3.

This section of the course addresses the general roles and responsibilities of the lawyer that arise in

many, and in some cases all, aspects of the practice of law. The next part examines the obligations

of lawyers in some specific practice contexts.

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Chapter 1

The Lawyer-Client Relationship

This section of the course starts with a consideration of the lawyer-client relationship itself, including the
creation of the relationship, the factors that influence and motivate lawyers and clients in this relationship,
the general obligations of lawyers in the relationship and the circumstances that lead to the termination of
the relationship. Throughout the discussion are various obligations, generated by law or by Codes of
Professional Conduct, which are expected to frame and guide the lawyer‘s conduct.

Issues to Consider:

a. When does a lawyer-client relationship come into existence?

b. What choices are available to the lawyer with respect to accepting clients?
c. What significance, for the lawyer and for the client, is the existence of the relationship?
d. What obligations for the lawyer arise as a result?
e. What are the motivations of lawyers, and the techniques they use, to acquire clients?
f. Are all of these motivations and techniques appropriate?
g. What larger values do they advance or undermine?
h. What circumstances lead to the termination of the relationship and what are the implications for the
lawyer? For the client?

a) When Does A Lawyer-Client Relationship Come into Existence?

According to the commentary in the definitions part of the Model Code, a lawyer-client relationship
may be established without formality. Rule 1.1-1 of the Model Code further defines a client as a
person who –

a) consults a lawyer and on whose behalf the lawyer renders legal services or has agreed to
render legal services, or
b) a person who having consulted a lawyer reasonably concludes that the lawyer has agreed to
render legal services on his behalf.

By this same token, the representative of an organization, corporation, partnership or other legal
entity is not the client of the lawyer. So, if Sophia is a manager at ABC Ltd and consults a lawyer on
behalf of ABC Ltd, the corporation is the client of the lawyer, not Sophia. This also applies to the
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corporation‘s affiliated entities, directors, shareholders, employees or their family members. The
only exception here is if that individual had objective evidence to demonstrate that he had
reasonable expectation that a lawyer-client relationship would be established.

Where a lawyer works as a partner or associate in a law firm, the client of the firm is the client of the
lawyer; it does not matter that a particular lawyer does not handle that client‘s work.

How created, its significance

Generally, a lawyer-client relationship is taken as created when there has been an offer and
acceptance of the retainer contract. However, while the retainer contract may be a proof that the
relationship exists, the absence of an agreement does not mean that the lawyer-client relationship
has not been created. Thus, a lawyer can owe special responsibilities to persons even when they
have not been confirmed as ―client‖. And this could take place in less formal or official setting or
without payment.

From the definition of a client in Rule 1.1-1 of the Model Code quoted above, this relationship may
be created far sooner than the signing of a retainer contract. This is because while the first aspect of
the definition seems clear-cut, the second aspect which relates to ―having consulted the lawyer‖ may
present some ethical dilemma, where for instance, a client consults a lawyer who for one reason or
another is not able to take the matter. What is the ethical significance of that first dealing? Does any
professional obligation arise therefrom? This was one of the issues raised in the case below.

In Descoteuax v. Mierzwinski (1982), a citizen attended a legal aid office and filled in a form
titled, ―Application for Legal Aid‖. Subsequently police requested some documents from the legal
aid office, including the application form. The issue was whether a solicitor-client relationship has
been created to entitle that form to solicitor-client privilege, and if so, at what point was the
solicitor-client relationship created. The Superior Court judge had ruled that the relationship, and
subsequently the right to confidentiality did not arise until the legal aid application has been
accepted, that is, until the retainer was established.

The Supreme Court, however, held that when dealing with when the right to confidentiality is
established, the solicitor-client relationship arises as soon as the potential client has his first dealings
with the lawyer‘s office in order to obtain legal advice. This is different from establishing when the
retainer is established. This is because the amount of information a lawyer will obtain from a

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potential client to enable her decide whether to accept the client or not is just as the same amount of
information that will be necessary for the lawyer to give legal advice.

The SCC further held that this sort of information supplied in an administrative nature is just as
related to the establishment of a professional relationship as any other information. Secondly, the
information of this nature may also be highly confidential and would have been kept secret by the
prospective client if not for his need of a legal advice.

The significance of this judgment, therefore, is to establish that, when issues of confidentiality
arises, a solicitor-client relationship is created the moment the client has his first dealings with the
lawyer‘s office. And so, the communication arising therefrom is protected by solicitor-client
privilege.

b) What Choices Are Available to The Lawyer with Respect to Accepting Clients?
A lawyer‘s choice of client is a serious and important issue because a whole lot of ethical and moral
obligations arises the moment the lawyer accepts a client. The lawyer‘s options and what she is
prepared or not prepared to do become severely curtailed. Her obligations are closely circumscribed.

By the provisions of Rule 4.1-1 of the Model Code. A lawyer ―must‖ make legal services available
to the public efficiently and conveniently. In some sense, this prescribes a sense of compulsion for
the lawyer to accept every client that comes his or her way. This notwithstanding, the Commentary
to that rule clarifies that a lawyer has the general right to decline representation on behalf of a client.
But such refusal should be exercised prudently, particularly if the denial will make it difficult for the
client to obtain legal advice or representation. The Commentary further adds that declining legal
services to a client should not be influenced by the following factors:

- merely because the prospective client or his cause is unpopular or notorious

- because powerful interests are involved

- because powerful allegations of misconduct or malfeasance are involved

- because of the lawyer‘s private opinion about the guilt of the accused.

The commentary further states that when a lawyer declines legal representation, such a lawyer
should assist the client in obtaining the services of another lawyer who is qualified in the particular
field, and do this willingly and without charge, except where a referral fee is permitted.
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Generally, it is accepted that a lawyer must refuse a client in any of the following situations:

- Where there is a conflict of interest;

- If the lawyer lacks competence in the matter;

- If there is still a continuing retainer with a previous lawyer;

- If there is the potential that the lawyer might be a witness in the case;

- If there is an illegal purpose.

But outside the above list, the debate on when a lawyer should accept or reject a client has
traditionally been between the following two arguments:

1. Moral non-accountability – defended by Dare, which states that since lawyers do not decide
cases, then the lawyer is simply a neutral agent who has an obligation to represent the
client‘s interest without regard to the morality of that client‘s interests or attitude, and
without necessarily having to consider such morality in deciding whether to accept the client
or not. This argument emphasizes the structural dimension of the lawyer‘s role.

2. ―Taking it personally‖ – led by Luban, the proponents of this argument propound that law is
an instrument of power and lawyers must take responsibility for their choice of clients and
the strategies they deploy on behalf of those clients.

A middle ground proposed by Layton and Proulx suggests that there may be room for the lawyer to
legitimately exercise her personal morality without undermining the client‘s right to access justice or
the defence counsel‘s role in the judicial system. They stated that this relates more to criminal
defence matters, and in accordance with the rules of professional conduct, there are different ways in
which a lawyer‘s personal opinion can legitimately influence her decision about whether to accept a
potential client. Such personal views may be manifested in any of the following ways:

- where the lawyer has personal distaste about the client or the matter, and that distaste is so
severe that the lawyer can reasonably conclude that it will affect the quality of services to be
rendered to the client;

- where the potential client‘s personality is so abrasive to the lawyer that it will fatally impede
the duties of competence demanded of the lawyer.

On the other hand, Allen Hutchinson prefers that lawyers should rather have conversations with
their potential clients so that both lawyer and client can outline their basic expectations of each
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other. In the course of this conversation, questions lawyers should ask include whether the objective
of the matter is worthy, and whether the required means to accomplish this objective will be allowed
to be used. That lawyers should inform their clients about the ethical limits to their provision of
legal services, and treat them as moral persons who are capable of engaging in debates and
changing.

Lastly, in selecting a client, a lawyer should be conscious of the anti-discrimination provisions in

Rule 6.3-5 of the Model Code which specifies that a lawyer must not discriminate against any
person. And generally, the principles of human rights laws and related cases apply in interpreting the
Rules of the Model Code, so much so that if a term used in the rule is defined in human rights
legislation, this term will have the same meaning as in the rule.

c) Significance of The Lawyer-Client Relationship

What significance, for the lawyer and for the client, is the existence of the relationship?

The existence of the lawyer-client relationship is significant in many respects. In addition to the
significance stated on page 66 above, it also signals the commencement of obligations by both
parties: the client is under obligations to provide the lawyer with necessary material and financial
resources to advance his cause, while the lawyer is under obligations to provide the client with the
legal expertise and competence to further that cause. This relationship is usually marked by the
signing of a retainer agreement, bearing in mind that the lawyer-client relationship may also be
created even in the absence of any written agreement. And this significance is emphasized in that
both the lawyer and the client have recourse to some legal remedies where either of them fails to
perform his or her side of the obligations.

Secondly, the lawyer-client relationship is akin to a working relationship in which the client must
work with the lawyer in order to achieve a set objective. The important aspect which involves the
technical ability and knowledge of the law must be observed by the lawyer, while it is equally
important for the client to develop a healthy relationship with the lawyer. And this is where the issue
of trust comes in. The client must believe that the lawyer has his best interest at heart and will not
reveal or divulge any confidential information shared with the lawyer. This is significant because the
client needs to be able to speak freely with his lawyer about any aspect of his matter. And the client
must be confident that such communications are safe.

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Thirdly, the lawyer-client relationship is significant in terms of accessibility and communication as
crucial assets in any lawyer-client relationship. The lawyer must be available to speak with the client
whenever the client has questions. As a matter of practice, many rules of professional conduct
demand that lawyers ensure effective communication with clients. In other words, lawyers must
ensure timely and accurate dissemination of information to clients. The Model Code requires the
lawyer to respond to communications and report on developments to the client. And according to
Commentary 6 to Rule 3.2-1, where there is no development to report, ―contact with the client
should be maintained to the extent the client reasonably expects‖.

While face-to-face meetings are ideal, they are not always possible. This leaves the lawyer with the
option of communicating with the client by phone and, preferably, by email. The lawyer will also
ensure that every face-to-face meeting and phone discussions are followed up by an email which
details what was discussed. This is significant because it ensures that both the lawyer and client are
on the same page moving forward.

d) Obligations of the Lawyer

Upon the formation of a lawyer-client relationship, some obligations are immediately imposed upon
the lawyer. One of these obligations is the duty of loyalty. From the duty of loyalty arises the
question of quality of service and the duty for a lawyer to render competent legal service to the
client. (Please see our discussions on Competence on Page 51 above).

The primary and specific professional duties of a lawyer to the client may be said to also include the
following:

- the lawyers must be zealous partisans on behalf of their clients;

- they owe a duty of dedication to the clients‘ cause;
- they must act with undivided loyalty;
- they must avoid conflicts of interest;
- they must be entirely candid with their clients;
- they must give the highest confidentiality to their clients‘ communications.

As regards concurrent clients, in most situations, it is possible for a lawyer to represent concurrent
clients even if conflict exists, on the condition that there is a valid waiver from the clients. But this
must not be an informal and general waiver, i.e., that type of agreement which waive all future

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conflicts in all situations. Therefore, when dealing with concurrent clients, the following must be
present for a waiver to be regarded as valid:

- there must be full disclosure by the lawyer to the clients;

- there must be signed and detailed waivers, preferably after independent legal advice has
been recommended and obtained;
- there must be a considered decision by the lawyer that she reasonably believes she can
represent each client without adversely affecting the other.

However, a business conflict can become a legal conflict in some situations where a lawyer is
representing concurrent clients. This may happen where a lawyer is retained by two clients who
don‘t have a legal dispute with each other but who have competing business interests. In such a
situation, one of these clients may challenge whether the lawyer is fulfilling the duty of loyalty to
him if the lawyer continues to act concurrently.

Lawyers can equally be considered to owe substantial duties of care in regard to the services they
offer, e.g., mostly in wills and estates. For instance, in White v. Jones (1995) it was held that the
children of a testator could recover against their father‘s lawyers because the lawyers negligently
failed to include the children in their father‘s will. The court arrived at this conclusion that the
lawyers owed a duty of care to the disappointed children even though they had no formal or
contractual relation with the lawyer.

In addition to the above and as a general rule, lawyers can owe a duty to a 3rd party (even if that
party is represented), unless he is adverse in interest. The courts have been ready to impose a
fiduciary duty on lawyers to non-clients in some situations. For example, in Tracy et al. v. Atkins
(1977), the BC Supreme Court held that a purchaser‘s lawyer in a real estate transaction could owe a
fiduciary duty to the vendors because they were unrepresented and the lawyer knew or ought to have
known that the elderly and unrepresented vendors were or might be relying on him to protect their
interests.

Also, it was held in Shoppers Trust Co. v. Dynamic Homes Ltd (1992) that a lender‘s solicitor
will have a fiduciary duty to a borrower‘s spouse to ensure that he or she receives independent legal
advice where that person is unrepresented and unfamiliar with legal matters.

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e) Motivations and Techniques for Acquiring Clients
What are the motivations of lawyers, and the techniques they use – including marketing and
advertising – to acquire clients?
Advertising has generally been one of the major means of acquiring clients. But historically,
advertising has always been a contentious issue among the following 3 groups:

a. The traditionalists – who believe advertising and solicitation reduce the professional status of
lawyers.

b. The modernists – those who believe that advertising and solicitation are essential in ensuring
that the public has access to justice.

c. Free marketers – who believe that lawyers should be able to brand and market their services
given the highly competitive legal market; since in any case, it is the customer‘s choice.

Advertising of legal services is generally permitted across many Canadian provinces but not without
issues. Some of these include whether some advertisements run contrary to the Rules. Restrictions
also apply, in terms of the content and manner of the advertisement. According to Rule 4.2-1 of the
Model Code, a lawyer may market professional services subject to the following provisions:

 The marketing must be true, accurate and verifiable.

 It must not be misleading, confusing/deceptive or likely to mislead confuse or deceive.

 The marketing must be in the best interests of the public and consistent with a high standard
of professionalism.

Under Rule 4.2-2, a lawyer may also advertise the fees charged for legal services on the condition
that the advertising is reasonably precise, must disclose whether other amounts such as disbursement
and taxes apply, and the lawyer adheres strictly to the advertised fee.

In the same vein, a lawyer may advertise her nature of services but without any misleading
information. Rule 4.3-1 forbids a lawyer from advertising that he or she is a specialist in a specified
field without having been so certified by the law society concerned.

In advertising her services to the public, the motivations and techniques employed by the lawyer
must be appropriate. Therefore, many law societies seek to regulate the content and structures of
lawyer advertising and marketing to ensure that it conforms with professional standards.

As an example, in Ontario, the Rules of Professional Conduct has additional prohibitions on

marketing/advertising. For instance, the Rule prohibits ―bait and switch‖ marketing, a practice
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where clients are lured by attractive offers of services, prices or terms which are then changed after
the client has responded to the marketing. The Rules further specifically prohibit the marketing of
second opinion services, or misleading adverts with regards to awards, rankings and 3rd party
endorsements. If a lawyer advertises awards earned by her, such awards must genuinely reflect
performance and quality of service, must reflect a genuine and responsible assessment of the lawyer
in the public interest, must not have been paid for, and must generally be in compliance with the
rules.

Further to this, the Law Society of Ontario rules require that marketing must be consistent with a
high standard of professionalism and must not have a negative impact on the reputation of lawyers,
the legal profession and the administration of justice. Examples of unprofessional marketing include
images, language or statements that are violent, racist or sexually offensive; marketing that take
undue advantage of a vulnerable person or group, or marketing that refers negatively to other
licensees, the legal profession or the administration of justice. And when advertising, the lawyer
must identify in all marketing materials that he/she is licensed as a lawyer, and whether the
advertised services will be provided by a licensed lawyer or a paralegal.

Fee sharing, referral fees, etc.

In addition to marketing discussed above, other methods of acquiring clients include solicitation and
fee sharing marketing and referral agreements. Solicitation in its literal meaning is the act of
accosting someone and offering services. In legal practice, solicitation is defined, e.g., by Rule 7.3
of the American Bar Association Model Rules of Professional Conduct in the following words:

―Solicitation‖ or ―solicit‖ denotes a communication initiated by or on behalf of a

lawyer or law firm that is directed to a specific person the lawyer knows or
reasonably should know needs legal services in a particular matter and that offers to
provide, or reasonably can be understood as offering to provide, legal services for
that matter.

On the other hand, a fee sharing agreement involves situations where the lawyer offers his services
to the client on the condition that the lawyer will be compensated, wholly or in part, by a share in
the monetary compensation obtained on behalf of the client. Referral fees are paid to a third party
who refers a client to the lawyer. Please note that division of fees or referral fees are strictly

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regulated in virtually all Canadian jurisdictions, while fee sharing arrangements with non-lawyers
are prohibited.

In addition to the above, lawyers also engage in networking, working with contacts, blogging and
the use of online tools as means of acquiring clients.

f) Are All of These Motivations and Techniques Appropriate?

There is no denying the fact that the manners in which some of the techniques discussed above are
implemented are not appropriate. The facts and outcomes in some of the cases discussed will
establish this. For a start, see again the facts and outcome in the case of Jabour already discussed on
page 14 above.

 Law Society of Saskatchewan v. Merchant

In 1998, Mr. Anthony Merchant Q.C. sent random letters to several prospective victims of Canada‘s
infamous residential school scheme, informing them that he acts for several organizations and individuals
who have sued the government and some churches for abuses suffered as a result of the scheme. These letters
contained suggested amounts ranging from $50,000 and above as recoverable by recipients and were
accompanied by an ‗Assignment & Retainer Agreement‘. The letters further state as follows:

―We believe the compensation that we can achieve for you will be significant and you have
nothing to lose. If we do not recover anything, then you pay nothing. If we recover, then we will
receive a percentage of what we recover on your behalf‖.

And that,

―If you are prepared to receive the money that we think is due to you, please write out your
reflections on what happened in the school and write to me as well as sending back the
authorization that is shown with your signature at the bottom.‖

B was a recipient of one of these unsolicited letters and she complained to the Saskatchewan Law Society, on
grounds that she felt offended by the unsolicited nature of the letter and the fact that the letters were
structured in such a way as to mislead the recipients into expecting to receive payment within approximately
a week or two after signing the agreement.

While Merchant was found not guilty of creating an unjustified expectation, he was found guilty by virtue of
the letters which were regarded as misleading, in that the letter disregards the possibility that the recipient
may not have a sustainable cause of action. The hearing committee also held that the letters are misleading in
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that they fail to disclose to the recipient the rigors, potential length and uncertainties of litigation. The
statement that the prospective litigant had ―nothing to lose‖ was also regarded as misleading because the
client may be compelled to pay something, e.g., the defendant‘s cost even if the client recovers nothing. The
hearing committee equally found Merchant guilty of conduct unbecoming a lawyer by engaging in marketing
activity that was found to be ―undignified, in bad taste or otherwise offensive‖, as to be inimical to the best
interests of the public or members of the profession.

The sanction against Merchant were subsequently upheld by the majority of the Saskatchewan Court of
Appeal in Law Society v. Merchant (2002) S.J. No. 288.

To ensure that advertising/marketing motivations and techniques are appropriate, rules have been
imposed against solicitations. Solicitations are frowned upon because lawyers may invade people‘s
privacy, take advantage of vulnerable persons, engage in ambulance-chasing or stir up unnecessary
litigation. Therefore, some rules of professional conduct prohibit lawyers from initiating direct
contacts with a prospective client who is in a weakened state, except through mail or advertisement.
In 2007, the Canadian Bar Association passed a resolution that lawyers should not accept a retainer
until they have met in person with the client whenever reasonably possible. This resolution was
adopted by Yukon, Northwest Territories and Ontario.

Similarly, communications with the media and public appearances have the likely consequences of
turning lawyers to media hounds. For this reason, Rule 7.5-1 of the Model Code applies to
communications with the media and to public appearances and prohibits lawyers from turning
themselves to ―media hounds‖ just to promote their own profile. And courts have equally frowned at
this. See for example the case of Stewart v. Canadian Broadcasting Corp. (1997). In that case, a
lawyer acted for Stewart in a criminal case. Ten years later, the lawyer hosted a television program
titled ―Scales of Justice‖, in which an episode was called Regina v. Stewart, where the lawyer
revisited the crime, the trial, and the public fascination with the case. Mr. Stewart was upset and
brought a claim against the lawyer for breach of his fiduciary duty of loyalty and of the implied
terms of the retainer.

In finding the lawyer liable, the court held that in the context of public media attention on a former
client or case, lawyers must not engage in behavior that is motivated by self-promotion or self-
aggrandizement. That the decision of the lawyer to involve himself in the televised program despite
his client‘s objection was motivated by self-interest.

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g) What Larger Values Do They Advance or Undermine?
The motivations and techniques of acquiring clients may at times take lawyers very close to some
ethical boundaries. For example, and as noted in the preceding paragraph, uninvited solicitation may
lead to lawyers invading the privacy of the citizens or taking undue advantage of the weak and
vulnerable. It may create opportunistic tendencies like ambulance-chasing or stirring up unnecessary
litigations. These may undermine the integrity of the profession and the administration of justice.
Consider in itself that the word ‗solicitation‘ is associated with offering services as a prostitute.

Unregulated advertisement or media blitz may also injure the integrity and reputation of the client,
as we saw in the case of Stewart above. This in turn may have the effect of undermining the legal
profession in the estimation of the public.

Another ready example is that of the National Association for the Advancement of Colored People
(NAACP) in the US in its early years. This organization organised large events to recruit plaintiffs,
fundraised for test cases, followed newspaper stories on rights violations and wrote to victims
offering them legal representations, and generally staged confrontations in order to create the facts
for test cases. All these activities were regarded as unethical.

On the other hand, however, some have argued that these techniques have their advantages. They
argue that such techniques advance the course of legal awareness, and for people who do not know
their rights, it creates an understanding of the services that lawyers can provide. They argue that
solicitation does fill this ―market gap‖.

h) Termination of Lawyer-Client Relationship

What circumstances lead to the termination of the relationship and what are the implications for the
lawyer? For the client?
The lawyer-client relationship may be terminated in a number of ways, as follows:

a) Termination in accordance with the letter of retainer – here, the retainer agreement may specify
how the relationship may be terminated. This may be explicit or implied. Where a lawyer-client
relationship has ended, it is recommended that the lawyer should send a letter to the client
terminating the agreement, so as to prevent a claim of breach of loyalty or conflicts of interest.
Most lawyers are, however, reluctant to do this because the client may get the impression of
being dumped, and also because most lawyers want to keep their old clients even when a
particular legal service has been completed.
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b) Termination by withdrawal: this is the second mode of bringing a lawyer-client relationship to
an end. You must note, however, that while the client has the freedom to terminate the services
of the lawyer at any time, the lawyer does not enjoy such freedom. Under Rule 3.7-1 and the
Commentary, a lawyer must not withdraw from representation of a client except for good cause
and on reasonable notice to the client. Under Rule 5.1-1, a lawyer in advocacy is obliged to
represent the client resolutely and absolutely within the limits of the law, while treating the
tribunal with candour, fairness, courtesy and respect.

In line with the above, withdrawal may be obligatory or optional.

a) obligatory – under Rule 3.7-7, a lawyer must withdraw in the following 3 instances:
o if she is discharged by the client;

o if the client persists in instructing the lawyer to act contrary to professional ethics, or

o if the lawyer is not competent to continue to handle a matter.

b) Optional withdrawal: under Rule 3.7-2, a lawyer has the option to withdraw in any of the
following situations:

o If there has been a serious loss of confidence between the lawyer and the client;

o If client fails to provide a retainer, or provide the funds on account for disbursement
or fees. But here, the lawyer may only withdraw if there won‘t be any serious
prejudice to the client. The lawyer should also ensure that there is sufficient time for
the client to retain another lawyer and for the client to prepare adequately for trial.

In criminal proceedings, the lawyer who has not been paid her fee may withdraw
upon notifying the client in writing that the withdrawal is due to non-payment of fees
or other reasons, render accounts to the client for all moneys received on account,
and also notify the Crown counsel in writing that she is no longer acting. But the
withdrawing lawyer must ensure that there is sufficient time between the withdrawal
and the trial. The SCC has further outlined the necessary conditions for withdrawal in
R. v. Cunningham (see below).

c) Where the lawyer works for or is retained by an organization, and is asked to act in a
matter that the lawyer knows that the organization has acted, is acting or intends to

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 act dishonestly, fraudulently, criminally or illegally, Rule 3.2-8 of the Model Code
prescribes the following steps to the lawyer:

o The lawyer should advise the person from whom she takes instructions and the
chief legal officer, or both the chief legal officer (CLO) and the chief executive
officer (CEO), that the action will be dishonest, fraudulent, criminal or illegal
and should be stopped.

o If the person from whom the lawyer takes instructions, the CLO and the CEO
refuse to cause the action to be stopped, the lawyer must advise progressively the
next highest persons or group including ultimately up to the board of directors,
board of trustees or the appropriate committee of the board that the action should
be stopped.

o If the organization continues with the cause of action despite the lawyer‘s advise,
then the lawyer should withdraw from acting in the matter.

Finally, upon withdrawal or termination, the lawyer is obliged to return all properties belonging to
the client. Under Rule 3.5-1, this includes money, securities, original documents like wills, title
deeds; papers such as client‘s correspondence, files, reports; and personal property like jewelleries,
precious metals, etc.

The lawyer generally has a right of lien over these properties for unpaid fees, but such a right should
not be enforced if to do so would materially prejudice the client‘s position in an uncompleted matter.

 R. V. CUNNINGHAM (2010)
Counsel applied to withdraw representation for an accused on the ground that the accused was
suspended from legal aid, and because of his limited resources, was unable to pay for legal
services. This was refused by the Territorial Court.

At the SCC, the issues were (1) whether, in criminal matter, the court has authority to refuse to
grant defence counsel‘s request to withdraw because accused has not complied with financial
terms of retainer. (2) Whether oversight of lawyer‘s withdrawal falls exclusively to law societies.

In holding that the Territorial Court had jurisdiction to refuse to grant the request to withdraw, the
SCC held that a court has the authority to require counsel to continue to represent an accused
when the reason for withdrawal is non-payment of fees, but the authority must be exercised

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 sparingly and only when necessary to prevent serious harm to the administration of justice. This is
because it would be inappropriate for a court to require counsel to continue to act when to do so
would put him or her in violation of professional responsibilities.

The court held that the oversight of a lawyer‘s withdrawal does not fall exclusively to the law
societies. Both the courts and the law societies play different, but important, roles in regulating
withdrawal: the courts prevent harm to the administration of justice and the law societies
discipline lawyers whose conduct falls below professional standards. These roles are not mutually
exclusive; rather, they are necessary to ensure the effective regulation of the profession and
protect the process of the court.

The SCC held further that the court‘s exercise of discretion to decide counsel‘s application for
withdrawal should be guided by the following principles:

 If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an
adjournment will not be necessary, the court should allow the withdrawal.

 If timing is an issue, the court is entitled to enquire into counsel‘s reasons.

 If the reason for seeking withdrawal is either ethical reasons or non-payment of fees, the
court must accept counsel‘s answer at face value and not enquire further so as to avoid
trenching on potential issues of solicitor-client privilege.

 If withdrawal is sought for an ethical reason, the court must grant withdrawal; if it is
sought because of non-payment of legal fees, the court may exercise its discretion to
refuse counsel‘s request if it determines, after weighing all the relevant factors, that
allowing withdrawal would cause serious harm to the administration of justice.

In terms of the implications of a termination for the lawyer and the client, generally, a lawyer‘s duty
to the client does not end upon the termination of a retainer. Lawyer‘s professional obligations to
their clients continue even after the end of the retainer or matter. Thus, the duty of confidentiality
demands that the lawyer must keep the client‘s confidence even after the end of the matter or the
termination or withdrawal of legal services.

This duty of confidentiality survives the professional relationship the lawyer has with the client, and
continues indefinitely after the lawyer has ceased to act for the client. It does not matter whether the
lawyer-client relationship was terminated or withdrawn, or whether or not differences have arisen
between them. It also applies to all manners of clients without exception, and it does not matter
whether the client is a continuing or a casual client.
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Again, the duty of the lawyer to avoid conflicts of interest continues even after the end of the
lawyer-client relationship. This aspect of the duty of loyalty will prevent a lawyer from accepting or
continuing a retainer where there are conflicts between the interest of the client and that of another
current or former clients.

Upon withdrawal or discharge, the lawyer must try to minimize expenses and avoid prejudice to the
client. The withdrawing lawyer must also do all reasonable to be done to facilitate the orderly
transfer of the matter to the successor lawyer. The withdrawing lawyer must cooperate with the
successor lawyer to ensure that all necessary files and documents are transmitted to the successor
lawyer if the client so requests.

Cooperation with the successor lawyer may also include providing any memoranda of fact and law
that the withdrawing lawyer has prepared in connection with the matter. Note, however, that
confidential information that is not clearly related to the matter should not be divulged without the
written consent of the client.

Under Rule 3.7-7A, if a lawyer leaves a firm to practice elsewhere, the clients whose matters are
being handled by that lawyer should be notified of this and given the option of whether to continue
with the departing lawyer, remain with the firm or retain a new counsel entirely. The clients‘ interest
is paramount and they should be allowed the freedom to exercise this right without undue influence
or pressure by the lawyer or the firm.

But under Commentary 1 of rule 3.7-9, if the lawyer who withdraws or is discharged is a member of
a firm, then the client must be notified that the lawyer and the firm are no longer acting for the
client. The distinction between this and Rule 3.7-7A lies in the fact that a lawyer who leaves a law
firm to practice elsewhere continues with her practice, and has not been terminated by the client.

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Chapter 2

The Preservation Of Client Confidences

Rule 3.3 and Commentaries; Rule 3.5-6 and Commentary; Rule 3.7 and Commentaries.

This section addresses the lawyer‘s obligation to preserve the confidences of his or her client. It examines the
centrality of this obligation in virtually all lawyer-client relationships and the reasons for its importance,
both in individualized terms between individual lawyers and clients and in systemic terms related to the
functioning of the justice system as a whole. The section examines the sources of the lawyer‘s obligations, the
legal and ethical features of the obligations and the circumstances where exceptions to the obligations have
been established.

a. What are the Basic Confidentiality Obligations?

As held by the NB Court of Appeal in Boucher v. R. (2021), ―The rule is clear: confidential
communications between a client and a member of the legal profession from whom the client seeks
legal advice are protected from disclosure, except in limited circumstances. The rule, established by
common law, is reflected in the codes of professional conduct of the various governing bodies of the
legal profession.‖

The lawyer‘s duty to preserve the clients‘ confidences is one of the most significant. It is closely
connected to the overarching duty of loyalty which a lawyer owes the client. The obligation to be
loyal would be compromised if a lawyer could use information so as to impact the client. Therefore,
a complete bar to the lawyer‘s unauthorized use of client‘s confidential information is justified, even
where no adverse impact is possible.

Confidentiality attaches not only to information given during the retainer, but also to information
communicated to the lawyer before the retainer, that is, that information that will enable the lawyer
decide whether to accept the retainer or not. Such information includes the client‘s ability to pay and
any other information of an administrative nature. And even if the lawyer declines to represent the
client or offer legal advice, the communications already made to the lawyer or her staff for that
purpose are already privileged.

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The courts have also consistently maintained that ―…the right to communicate in confidence with
one‘s legal adviser is a fundamental civil and legal right, founded upon the unique relationship of
solicitor and client….‖ Per Dickson J. in Solosky v. The Queen (1980). And per Lamer J. in
Descoteaux v. Mierzwinski (1982):

―It is a personal and extra-patrimonial right which follows a citizen throughout his dealings with
others. Like other personal, extra-patrimonial rights, it gives rise to preventive or curative
remedies provided for by law, depending on the nature of the aggression threatening it or of
which it was the object. Thus, a lawyer who communicates a confidential communication to
others without his client‘s authorization could be sued by his client for damages; or a third party
who had accidentally seen the contents of a lawyer‘s file could be prohibited by injunction from
disclosing them….‖

And according to the SCC in R. v. Neil, confidentiality obligations are imputed to other members of
a firm. It is not only the individual lawyer but also the firm as a whole that owes the fiduciary duty
of confidentiality to the client. In the same vein, the lawyer or other lawyers in the firm may not use
confidential information against a former client of the firm.

Similarly, when a lawyer changes firms, she will be assumed to be sharing confidential information
about past clients with members of the new firm unless adequate screening measures are put in place
to establish that confidential information is not being disclosed.

The duty to preserve client‘s confidence arises in the following respects:

- From the clients‘ perspective, they want to share information with the lawyer in the
confidence that such information will be closely guarded and without the fear that it may be
disclosed without their permission. This is because such information could at times be
highly personal and may expose the client to vulnerability.

- From the lawyer‘s perspective, she needs to have comprehensive and candid information
from the client. This is because such information may be critical to the lawyer‘s ability to
adequately advise the client and provide appropriate representation.

- From the perspective of the legal profession and the administration of justice, it is essential
that the client must be able to trust in the confidentiality of his or her lawyer and also for the
general public to know that information shared with their lawyer within the lawyer-client
relationship will be vigorously protected.

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The SCC in Descoteaux (supra) established that the right to confidentiality has now become
elevated to a substantive right and not merely a rule of evidence. The court then provided the
following framework:

1. The confidentiality of the communications between solicitor and client may be raised in any
circumstances where such communications are likely to be delivered without the client‘s
consent.
2. Unless otherwise provided for by law, where there is a conflict between the extent and when
a person can legitimately exercise his rights, and when that exercise will interfere with the
right of confidentiality, the conflict should be resolved in favour of the right to protect
confidentiality.
3. When a law empowers someone to do something which might invariably interfere with
confidentiality, the decision and choice of exercising that authority should be determined
with a view to not interfering with confidentiality, except it is absolutely necessary in order
to achieve the ends sought by the enabling legislation.
4. Any law that provides contrary to the situations in paragraphs 2 and 3 above must be
interpreted restrictively.

Communications between the lawyer and client are among the most highly protected
communications and information in law, and they come under two different dimensions: legal and
professional/ethical. The legal dimension, also referred to as solicitor-client privilege is aggressively
protected by law; the professional/ethical dimension, which is wider is protected by the lawyer‘s
ethical and professional obligations as specified in the codes of professional conduct.

b. What Is The Source Of This Obligation?

Basically, the rules of professional conduct of each law society contain provisions on confidential
information and how to preserve these. But the Model Code aims to provide a unified rule on
confidentiality.

Rule 3.3 of the Model Code provides thus:

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 3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business
and affairs of a client acquired in the course of the professional relationship and must not divulge
any such information unless:

(a) expressly or impliedly authorized by the client;

(b) required by law or a court to do so;

(c) required to deliver the information to the Law Society; or

(d) otherwise permitted by this rule.

Commentary [3] then explains that a lawyer owes the duty of confidentiality to every client without
exception and whether or not the client is a continuing or casual client. The duty of confidentiality
survives the professional relationship and continues indefinitely after the lawyer has ceased to act
for the client. It does not matter whether or not differences have arisen between them.

The duty also extends to advice or assistance extended to anyone by the lawyer, even if the lawyer
does not render account or agree to represent that person. In this wise, a lawyer must be cautious
about accepting confidential information on an informal basis since the lawyer-client relationship
may be established without formality.

Commentary [8] enjoins a lawyer to avoid indiscreet conversations about a client‘s affairs, even
with the lawyer‘s spouse or family. The lawyer should shun and not repeat any gossip or indiscreet
shoptalk about such things even if the client is not named or otherwise identified.

The solicitor‘s duty of confidentiality also exists in common law, and stems from the relationship
between lawyer and client. But the common law has not developed exceptions to this duty.

Under the Model Code, the lawyer‘s authority to disclose confidential information may however be
inferred in the following instances:

- in court proceedings where some disclosure may be necessary in a pleading or other court
document;
- except the client directs otherwise, to partners and associates in the law firm and to the
extent necessary, to administrative staff and others whose services are used by the lawyer.
But here, the lawyer must impress on these associates and employees the importance of the
non-disclosure both during their employment and afterwards.

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c. What is the Difference Between Confidentiality and Privilege?

Though sometimes lumped together in casual conversations, the duty of confidentiality and the
protection of solicitor-client privilege have major differences between them, notwithstanding that
they both operate too protect client information from disclosure. Their major parting points are as
reflected in the table below

Differences DUTY OF SOLICITOR-CLIENT

CONFIDENTIALITY PRIVILEGE
Origin Originates from rules of professional Originated from the courts under the
conduct and judicial interpretations by common law rule of evidence but has
law society tribunals. now achieved constitutional status as a
―principle of fundamental justice‖ for
the purposes of s. 7 of the Charter. This
definition has been adopted by the SCC
in R. v. McClure (2001).

Breaches Are investigated and sanctioned by the Breaches are sanctioned by the court.
law society to which the member belongs For example, evidence obtained in
violation of solicitor-client privilege
could be rejected or expunged.

Scope As defined by R.3.3-1 of the Model The scope is narrower and includes only
Code, the scope of the ethical duty of communications made for the purpose
confidentiality is quite broad, and of providing legal advice.
includes all information concerning the
business and affairs of the client acquired
by the lawyer in the course of the
relationship.

Sources of the Confidentiality covers all information or
information communication obtained by the lawyer in
the course of the relationship. It does not
matter where this information or
communication comes from or whether it
is also possessed by 3rd parties.
Privilege generally only applies to
information provided by the client and
the communication from the lawyer to
the client.

The above differences notwithstanding, the duty of confidentiality and solicitor-client privilege do
have some similarities and indeed do overlap. For example:

- Both of them arise out of the creation of a lawyer-client relationship.

- Both of them can only be waived by the client, either expressly or impliedly.

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 - Both of these rules have exceptions. For confidentiality, exceptions are created by the rules
of professional conduct. For solicitor-client privilege, exceptions are created by the courts
through the case law.

The need for solicitor-client privilege and to maintain client‘s confidences is more particularly
pronounced in criminal matters where the accused person is facing the state as a ―singular
antagonist‖. Therefore, maintaining client confidences substantially helps the client‘s ability to
exercise his/her constitutional rights against the state.

d. What Exceptions Exist to these Obligations?

As stated above, both confidentiality and solicitor-client privilege have exclusions, exceptions and
limitations, and the instances when confidential information will lose their privilege are outlined in
the following situations:

1. Crime/fraud or criminal communications exclusion, i.e., where communication is made to

facilitate the commission of a crime. In Descoteaux v. Mierzwinski (supra), the Applicant was
being investigated for the indictable offence of fraudulently reporting a lower income in order
to obtain legal aid. Issue was whether ―Application for Legal Aid‖ form filled by Applicant and
submitted to the legal aid office and which contained his financial information was protected by
solicitor-client privilege. SCC held that in this case, the communications made by the Applicant
with respect to his financial means are criminal in themselves since they constitute the material
element of the crime charged. So, the confidential information will lose that character if it was
made for the purpose of obtaining legal advice to facilitate the commission of a crime.

2. The public safety exception: In Smith v. Jones (1999), an accused faced trial for aggravated
sexual assault of a prostitute. His lawyer referred him to a psychiatrist, to whom the accused
disclosed in considerable details how he intended to commit similar future kidnap, rape and
murder of more prostitutes. Psychiatrist reported to defence counsel that accused posed
continuing danger to the society, but defence counsel responded that the trial judge will not be
informed of psychiatrist‘s concerns about the accused. Psychiatrist brought application to
disclose the report in the interest of public safety. The court agreed with both parties‘
submissions that the psychiatrist‘s report was protected by solicitor-client privilege but that

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 when public safety is involved and death or serious bodily harm is imminent, then privilege
should be set aside.

To determine whether public safety outweighs solicitor-client privilege, the court outlined the 3
factors to be considered as follows:

a. Is there a clear risk to an identifiable person or group of persons? Generally, the group of
intended victims must always be ascertainable, even if the group is large. The threat must
not be too vague.

b. Is there a risk of serious bodily harm or death? The threat must be such that the intended
victim is in danger of being killed or of suffering serious bodily harm.

c. Is the danger imminent? The nature of the threat must be such that it creates a sense of
urgency, even if it is applicable to some time in the future.

However, in setting aside the privilege, the disclosure should be limited so that it includes only
the information necessary to protect public safety. (The judgment reflects the Model Code
provisions in Rule 3.3-3).

3. The ―innocence at stake‖ exception – in limited circumstances, the solicitor-client privilege may
give way when a person‘s innocence is at stake. The rule will allow an accused to make full
answer and defence notwithstanding privilege. In R. v. McClure (2001), M was charged with
sexual assault of A. A subsequently brought civil action against M. M then sought production of
A‘s civil litigation file from A‘s lawyer arguing that he needs the information to determine
nature of A‘s allegations and to assess his motive to fabricate or exaggerate incidents of abuse.
The SCC held as follows:

a. That though solicitor-client privilege is of fundamental importance to the administration

of justice as a whole, it may yield to allow an accused person to make full answer and
defence.

b. That the appropriate test for determining whether to set aside solicitor-client privilege is
the innocence at stake test.

c. That this test is a stringent one, and privilege can only be infringed where core issues
going to the guilt of the accused are involved and there is a genuine risk of a wrongful
conviction.

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 d. That before the innocence at stake test is even considered, the accused must establish:

i. that the information he is seeking in the solicitor-client file is not available from any
other source and,

ii. that he is unable to raise a reasonable doubt as to his guilt in any other way.

e. That the test is applied in 2 stages in order to reflect the dual nature of the judge‘s
inquiry, viz:

i. At the first stage, the accused seeking production of this communication must
satisfy the judge‘s enquiry whether there is some evidentiary basis for the claim that
a solicitor-client communication exists that could raise a reasonable doubt about the
guilt of the accused. Here, mere speculation about what the file might contain is
insufficient.

ii. After being satisfied that there exists evidentiary basis for the file, the judge must at
this second stage examine the record and ask if there is something in the solicitor-
client communication that is likely to raise a reasonable doubt about the guilt of the
accused.

f. That if the second stage of the test is met, the judge should order the production of the
communication but only of that portion of the file that is necessary to raise the defence
claimed.

g. That the circumstances in this case did not justify invading the solicitor-client privilege
as the first stage of the innocence at stake test was not met. There was no evidence that
the information sought by M could raise a reasonable doubt as to his guilt.

4. Legislative exceptions: this indicates that the legislature may from time to time introduce
provisions that circumscribe or set aside the client‘s rights to confidentiality. However, the
courts have held that such legislative language must be read restrictively. The privilege cannot
be abrogated by inference. See Descoteaux (supra).

5. Legislative exceptions in the context of law enforcement and national security: in the wake of
the September 11, 2001 terrorist attacks in the US, the Parliament in Canada tried to ensure the
safety of Canadians by ensuring that people who are perceived to be threat to national security
do not shelter behind lawyer-client privilege. To this end, some legislations were introduced
which sought to circumscribe the normal solicitor-client relationship. One of these was the
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 Proceeds of Crime (Money Laundering) and Terrorist Financing Act 2000, which mandated
financial intermediaries, including lawyers, to collect, record and retain materials including
information verifying the identity of those on whose behalf they pay or receive money. The law
also empowered an agency to search for and seize illegal materials.

Upon challenge by the FLSC (in Canada v. Federation of Law Societies of Canada {2015}),
one of the issues before the SCC was whether the legislation infringed solicitor-client privilege
and the lawyer‘s duty of commitment to the client‘s cause.

The SCC held as follows:

a. That the part of the law which apply to documents in the possession of legal counsel and
legal firms infringe the Charter provisions against unreasonable search and seizure.

b. That the provisions that authorize sweeping searches of law offices inherently breach
solicitor-client privilege.

6. There are also special cases in which the issue of keeping client‘s confidences or solicitor-client
privilege may be impacted. One of these is when a lawyer seeks to withdraw representation for
a client, especially in the criminal defence context. Please see R. v. Cunningham (above, at
page 78). Here, the court held that where a lawyer‘s reason for seeking withdrawal is either
ethical or non-payment of fees, the court must accept counsel‘s answer at face value and not
enquire further so as to avoid trenching on potential issues of solicitor-client privilege. The
lawyer may withdraw but do so in a way that does not jeopardize the client‘s right to
confidentiality.

Similarly, when a lawyer takes custody and control of real evidence, this may present some
challenges as in the case of R. v. Murray (supra, at page 26 above) where the court held
amongst others that while maintaining solicitor-client confidentiality, the lawyer must turn over
any incriminating physical evidence to the prosecutor if it improperly comes into her possession
as lawyer.

In addition, the increasing use of information and computer technology and devices may
increase the risk of inadvertent disclosure of client‘s confidential information.

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Chapter 3

Conflicts Of Interest

Rule 3.4 and Commentaries.

One of the most important obligations of lawyers in any context is to avoid conflicts of interest. This subject
has been extensively addressed by Canadian courts and by the legal profession itself in efforts to ensure that
clients and others have confidence in the appropriateness of lawyer representation of clients and,
correspondingly, in the administration of justice itself. These obligations have placed lawyers in difficult
situations and have had significant implications for client representation. As well, more than in most other
areas of legal ethics, they have engaged the question of whether the practice of law is a business or a
profession.

Issues to Consider:
a. When does a lawyer-client relationship come into existence?
b. Origins of conflicts of interest.
c. Sources and types of conflicts of interest: ethical, legal, economic, etc.
d. Client loyalty.
e. Changing firms: potential conflicts involving law students and lawyers.
f. Avoiding conflicts.
g. Remedies.
h. Withdrawal
i. The implications for lawyers, clients and the administration of justice.
j. Is the current balance – largely framed for example by the Supreme Court of Canada in Martin, Neil,
Strother and now McKercher – fair? Efficient?

a. When Is the Lawyer-Client Relationship Created?

With reference to our discussion on page 65 above, a lawyer-client relationship may be formed far
sooner than the signing of the retainer. It is clear from the SCC decision in the case of Descoteaux
that the lawyer-client relationship commences ―as soon as the potential client has his first dealing
with the lawyer‘s office in order to obtain legal advice‖.

The creation of a lawyer-client relationship requires no particular formality, as it may be created

anywhere, anyhow and at any time, even outside the lawyer‘s office, at informal settings and at
social occasions. And all communications made to the lawyer or her employees for administrative

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purposes even before the lawyer decides whether to accept legal representation or give legal advice
must be protected under the lawyer‘s duty to preserve client confidences.

Generally, the same principle of law will apply to determining when the lawyer-client relationship is
established for the purpose of avoiding conflicts of interest.

b) Origins of Conflicts of Interest

Traditionally, a lawyer‘s obligation to avoid conflicts of interest was merely an ethical guideline,
along with other codes of conduct requirements which focused on general principles but in the last
few decades, this began to change when the courts and disciplinary authorities were asked to fashion
out clear-cut rules in conflicts of interest situations.

In response to these calls, the courts, led by the Supreme Court of Canada began to develop the
jurisprudence that was specifically tailored to address situations where lawyers find themselves in
conflicts of interest. This jurisprudence was founded on the fundamental principles that lawyers
owed an obligation to their clients, and the public expect them to live beyond reproach.

Today, the duty of loyalty to the client, of which the obligation to avoid conflict of interest is a part,
has become so enriched and expanded that some regard it as the primary duty of the lawyer,
although controversies have evolved as to what should be the scope of this obligation. Some have
argued that conflicts of interest should have disqualifying effect, in which a lawyer will be
disqualified for representing a specific client where there is a conflict of interest.

c) Sources and Types of Conflicts:

There are basically two types of conflicts of interest: ‗client-client‘ conflicts, and ‗lawyer-clients‘
conflicts. The two are not mutually exclusive and may often collide. They arise irrespective of the
type of practice – solo practitioner, large firm, in-house counsel, or in government service.

a. „Client-Client‟ conflicts – these are the types of conflicts that arise between or among clients.
The SCC has over the years sought to establish guiding rules and a clear set of expectations for
lawyers in relation to conflicts of interest situations. These principles have been enunciated in
four cases, (usually referred to as the ―conflicts quartet‖) namely: Martin, Neil, Strother and
McKercher. Of course, the efforts by the SCC to articulate appropriate standards of lawyers‘
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duties to their clients have not been uncontroversial. In fact, the efforts have made duty to avoid
conflicts of interest one of the most hotly-contested areas of legal ethics and professional
regulations.

Client-client conflicts may arise in 2 ways:

A. Duties to former clients – this deals with situations where there is a conflict between the
duty of a transferring lawyer to his former client and the duties of a lawyer‘s new firm to
his current client.

 MACDONALD ESTATE V. MARTINS (1990)

MacDonald Estate brought an application against Martin for an accounting. Martin‘s solicitor
was assisted by a junior member who was actively engaged in the case and was privy to many
confidences disclosed by Martin to his solicitor. The junior member later joined the law firm
representing MacDonald Estate. Martin applied for a declaration that MacDonald Estate‘s law
firm was ineligible to continue to act as solicitor of record for it.

The issue at the SCC was to determine the appropriate standard to be applied in deciding whether
a law firm should be disqualified from continuing to act in a litigation by reason of a conflict of
interest.

The SCC held as follows:

1) In determining whether a disqualifying conflict of interest exists, the Court is concerned with
three competing values:

a. the concern to maintain the high standards of the legal profession and the integrity of
our system of justice;

b. the countervailing value that a litigant should not be deprived of his or her choice of
counsel without good cause; and

c. the desirability of permitting reasonable mobility in the legal profession.

2) To consider the above values, 2 questions must be answered:

a. Did the lawyer receive confidential information attributable to a solicitor and client
relationship relevant to the matter at hand? The answer here is that once it is shown by
the client that there existed a previous relationship which is sufficiently related to the
retainer from which it is sought to remove the solicitor, the court should infer that

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 confidential information was imparted unless the solicitor satisfies the court that no
information was imparted which could be relevant.

b. Is there a risk that the confidential information will be used to the prejudice of the
client? The answer is that a lawyer who has such relevant confidential information is
automatically disqualified from acting against a client or former client.

3) With respect to the partners or associates in the firm, the concept of imputed knowledge is
unrealistic in the era of the mega-firm. The court should therefore draw the inference that
lawyers who work together share confidences, unless satisfied on the basis of clear and
convincing evidence, that all reasonable measures have been taken to ensure that no disclosure
will occur by the "tainted" lawyer to the member or members of the firm who are engaged
against the former client. Such reasonable measures would include institutional mechanisms
such as Chinese Walls and cones of silence.

4) That until the governing bodies of the legal profession have approved of these reasonable
measures and adopted rules with respect to their operation, it is unlikely that a court would
accept them as evidence of effective screening.

5) In this case, the junior lawyer actively worked on the very case in respect of which her new firm
is acting against her former client, and she is therefore in possession of relevant confidential
information. With respect to misuse of the information, there is nothing in the affidavits filed to
indicate that any independently verifiable steps were taken by the firm to implement any kind of
screening, and the firm may therefore not continue to act.

In response to the suggestion in paragraph 4 above, many Canadian law societies established
elaborate screening mechanisms that will allow a former lawyer to join the opposing firm but at the
same time minimizing the risk of confidential information in the possession of that former lawyer
from being made known to the adversary. The FLSC also incorporated this in Rules 3.4-17 to 3.4-23
of the Model Code. The judgment and the rules establish the presumption of disqualification which
must be rebutted by the new firm.

But as shown in the case below, it is not clear if those provisions in the Model Code have
satisfactorily resolved the issue.

 ONTARIO V. CHARTIS INSURANCE CO. OF CANADA (2017)

Ontario sued AIG and others on an insurance dispute. Ontario retained TG as its counsel while AIG retained
LBM. M worked at TG and was intimately involved in working with the senior counsel to Ontario on the
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dispute. M subsequently left TG and joined LBM as a partner. LBM continued to represent AIG in the
insurance dispute but put in place ethical screens to prevent disclosure of confidential information by M.
Though M did not work on the pending litigation at his new firm, yet he spent 50% to 60% of his time
working on other matters with the counsel handling the insurance dispute. The issue was whether the ethical
screen put in place by LBM was sufficient to prevent disclosure of Ontario‘s confidential information by M,
and whether it was in the interests of justice that LBM continues to act in the dispute. The integrity of M is
unchallenged and there is no suggestion of any actual impropriety.

The Ontario Court of Appeal held as follows:

1) That the applicable test to determine whether a disqualifying conflict exists is that set out in
MacDonald Estate, viz: the test must be such that the public represented by the reasonably informed
person would be satisfied that no use of confidential information would occur.

2) The questions to be answered are:

a. did M receive confidential information attributable to a solicitor and client relationship

relevant to the matter at hand, and

b. is there a risk that it would be used to the prejudice of the client?

3) That there is no issue in this appeal with respect to the answer to the first question. It is conceded that
M is in possession of such confidential information. The appeal therefore turns on the answer to the
second question.

4) That in assessing risk of prejudice to the client, the court is to infer that M will impart confidential
information to his new colleagues at LBM. However, as Sopinka J. explained in MacDonald Estate,
that inference is rebuttable.

5) That in this appeal, the inference is rebuttable if the measures instituted by LBM would satisfy a
reasonably informed person that use of confidential information had not occurred or would not occur.

6) In MacDonald Estate, Sopinka J. invited lawyers‘ professional regulatory bodies to address

appropriate measures to prevent the disclosure of confidential information in circumstances where a
lawyer transfers firm. The Canadian Bar Association and the Federation of Law Societies of Canada
then established rules and guidelines in response to Sopinka J.‘s invitation. The provincial governing
bodies, including the LSUC, then promulgated their own rules and guidelines, which generally
borrowed heavily from the model rules proposed by the Federation of Law Societies.

7) Sopinka J. observed in MacDonald Estate, that it is not for the court to develop standards; that is the
role of the governing bodies of the self-governing legal profession. The court‘s role is merely

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 supervisory. But neither MacDonald Estate, nor the guidelines themselves, suggest that the court
should abdicate its supervisory responsibility.

8) The Supreme Court recently reiterated the supervisory role of the courts in resolving conflicts of
interest. In Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649,
McLachlin C.J. stated thus:

‗Both the courts and law societies are involved in resolving issues relating to conflicts of
interest – the courts from the perspective of the proper administration of justice, the law
societies from the perspective of good governance of the profession…‘

9) In the case at bar, the size of the firm is irrelevant. What is relevant is the integrated nature of M and
the new partner‘s practices. M works with the new partner 50 to 60 percent of the time. While
technology, such as e-mail, might serve to diminish face-to-face interaction, the potential for
inadvertent disclosure is significant.

10) That while LBM as a firm may have achieved technical compliance with the ethical guidelines on
screening, compliance with the spirit of those guidelines is absent. The most striking feature of this
case is that M spends 50 to 60 percent of his time working with the new partner. In the face of that
fact, it cannot be said that there is clear and convincing evidence that all reasonable measures are
being taken to ensure that no disclosure would occur by M to AIG‘s counsel.

11) The public, represented by the reasonably informed person, could not be satisfied that no use of
confidential information would occur between two people with such an intense working relationship.

12) As mentioned, the concern of inadvertent disclosure should not be taken as a reflection of the
integrity of either lawyer. Rather, it is the integrity of the justice system that is in issue.

B. Duties to current clients – in contrast to the above, conflicts of interest may arise where the
same law firm acts for two opposing clients. The question may turn to whether the protective
screens put in place between the two lawyers in the firm who are acting for the respective
clients is sufficient to enable them fulfill their legal and ethical obligations to both clients at the
same time without conflicts.

 R. V. NEIL (2002)
N, a paralegal was charged with his assistant, Lambert for providing unauthorized legal services in a
matter involving Canada Trust. Lazin was one of the lawyers who was an employee/associate of the V

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law firm engaged by N to defend him in the matter. Lazin, however, represented Lambert, who planned
to present a ―cut-throat‖ defence in which Lambert would give evidence on her own behalf to strengthen
the prosecution‘s case against N. This was at the same time that the V law firm met with N to plan his
defence, though the firm eventually withdrew from acting for N in the matter.

In the second indictment, N was charged with procuring a divorce with fake papers. Lazin then
encouraged his client Darren, who had been defrauded by N in the divorce case, to make a complaint to
the police. Lazin also put evidence of N‘s illegal conduct before the divorce judge.

N brought an application to stay his criminal prosecution on the basis that his lawyers were in a conflict
of interest, claiming that his lawyers had failed to adequately represent him and had sold him out to the
interests of another client.

At the Supreme Court, the issue was, what is the proper limit of a lawyer‘s duty of loyalty to a current
client in a case where the lawyer did not receive any confidential information relevant to the matter in
which the lawyer proposes to act against the interest of a current client?

The court held as follows:

1) The general rule is that a lawyer may not represent one client whose interests are directly adverse
to the immediate interests of another current client — even if the two mandates are unrelated —
unless both clients consent after receiving full disclosure (and preferably independent legal
advice), and the lawyer reasonably believes that he or she is able to represent each client without
adversely affecting the other.

2) Here, the V law firm, and Lazin in particular, put themselves in a position where the duties they
undertook to other clients conflicted with the duty of loyalty which they already owed to the
accused. Loyalty required the V law firm to focus on the interest of the accused without being
distracted by other interests including personal interests.

3) The law firm did owe a duty of loyalty to the accused at the material time and the law firm ought
not to have taken up the cause of one of the accused‘s alleged victims (Darren) in proceedings
before a civil court at the same time as it maintained a solicitor-client relationship with the
accused in respect of other matters simultaneously pending before the criminal court.

4) The V firm breached their duty to the accused in accepting a retainer that required them to put
before the divorce court judge evidence of the illegal conduct of their client, the accused, at a time
when they knew he was facing other criminal charges related to his paralegal practice, in which
their firm had had a longstanding involvement. The divorce matter was adverse to the accused‘s
interest, and advantageous to the ―cut-throat‖ defence planned by Lambert, the accused‘s former
business associate.
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 5) The V firm ought not to have met with the accused on the Canada Trust matters when it was
conflicted by its de facto representation of the accused‘s former business associate. The law firm,
as fiduciary, could not serve two masters at the same time.

6) However, it is one thing to demonstrate a breach of loyalty. It is quite another to arrive at an

appropriate remedy. The law firm‘s conduct did not affect the fairness of the divorce action trial
and there was no issue of confidential information. Lazin‘s involvement in the divorce matter was
in violation of his and the firm‘s professional obligations, but it contributed little to the accused‘s
predicament.

7) Similarly, while the V law firm was in a conflict of interest when they attempted to act
simultaneously for both the accused and his eventual co-accused in the Canada Trust matter, in the
end, the V firm did not act for the accused. Their conflict did not result in the charges being so
vitiated as to render it an abuse of process for the state to seek a conviction at a new trial.

8) A client whose lawyer is in breach of his or her fiduciary duty has various avenues for redress,
viz:

a) a complaint to the relevant governing body (law society) may result in disciplinary action;
b) a conflict of interest may also be the subject of an action against the lawyer for
compensation, as in Szarfer v. Chodos.
9) But breach of the ethical duties that could raise concerns at the Law Society does not necessarily
give grounds in a malpractice action or justify a constitutional remedy.

 STROTHER v. 3464920 CANADA INC. (2007)

Monarch devised and marketed tax shelter investment schemes for Canadian production of American films,
and engaged D&C law firm where Strother was a partner, in a written retainer agreement which expressly
prohibited the law firm from acting for clients other than Monarch on tax shelter investment schemes.
Monarch continued to be a client even after the retainer agreement terminated. A new tax policy made
Monarch‘s business no longer viable. Strother advised he had no solution to this new policy and Monarch‘s
business began winding down, with many employees sacked.

D, one of the sacked employees of Monarch later approached Strother with a revised similar tax shelter
scheme in which Strother acquired 50% shares. The scheme was approved. Strother never told Monarch of
the revised scheme but D&C law firm still continued rendering some legal services to Monarch. Strother
then resigned from D&C law firm to become a partner in D‘s new company called Sentinel and the two
partners earned over $60 million dollars over 2 years. Monarch then sued Monarch and D&C law firm for
breach of fiduciary duty and breach of confidence for Strother taking a financial interest in a second client
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 in same line of business — Trial judge dismissed claim but Court of Appeal ordered lawyer to disgorge to
first client all benefits and profits received or receivable from second client‘s companies and ordered law
firm to disgorge profits earned in form of legal fees from second client.

The issues at the SCC were:

a) whether Strother breached fiduciary duty owed to first client by accepting personal financial
interest in second client;

b) whether lawyer wrongly used confidential information belonging to first client.

The SCC held as follows:

1) When a lawyer is retained by a client, the scope of the retainer is governed by contract. The
solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities,
which are imposed as a matter of law. Fiduciary duties provide a framework within which the lawyer
performs the work and may include obligations that go beyond what the parties expressly bargained
for. Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of
conflicts of interest.

2) Subject to confidentiality considerations for other clients, if Strother knew there was still a way to
continue the tax scheme, the 1998 retainer entitled Monarch to be told that Strother‘s previous negative
advice was now subject to reconsideration. While generally a lawyer does not have a duty to alter a past
opinion in light of a subsequent change of circumstances, there are exceptions to the general rule. Here
Monarch‘s written 1997 retainer had come to an end but the solicitor-client relationship based on a
continuing (if more limited) retainer in relation to tax-assisted film production services carried on
into 1998 and 1999.

3) The law firm and Strother were free to take on D and Sentinel as new clients once the ―exclusivity‖
arrangement with Monarch expired at the end of 1997. The retainer by Sentinel was not directly adverse
to any immediate interest of Monarch.

4) Issues of confidentiality are routinely dealt with successfully in law firms. Strother could have managed
the relationship with the two clients as other specialist practitioners do, by being candid with their legal
advice while protecting from disclosure the confidential details of the other client‘s business. Strother
accepted Sentinel as a new client and the firm was given no reason to think that he and his colleagues
could not provide proper legal advice to both clients.

5) Commercial conflicts between clients that do not impair a lawyer‘s ability to properly represent the legal
interests of both clients will not generally present a conflict problem. Whether or not a real risk of

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 impairment exists will be a question of fact. The risk did not exist here if the necessary even-handed
representation had not been skewed by Strother‘s personal undisclosed financial interest.

6) In each case where no issue of potential abuse of confidential information arises, the court should
evaluate whether there is a serious risk that the lawyer‘s ability to properly represent the complaining
client may be adversely affected, and if so, what steps short of disqualification (if any) can be taken to
provide an adequate remedy to avoid this result.

7) Strother was not free to take a personal financial interest in the D/Sentinel venture. The difficulty is not
that Sentinel and Monarch were potential competitors. The difficulty is that Strother aligned his personal
financial interest with the Sentinel‘s success. By acquiring a substantial and direct financial interest in
one client (Sentinel) seeking to enter a very restricted market related to film production services in which
another client (Monarch) previously had a major presence, Strother put his personal financial interest
into conflict with his duty to Monarch. The conflict compromised Strother‘s duty to ―zealously‖
represent Monarch‘s interest. Taking a direct and significant interest in the potential profits of
Monarch‘s commercial competitor created a substantial risk that Strother‘s representation of Monarch
would be materially and adversely affected by consideration of his own interests. In time, the risk
became a fact.

8) The firm, for its part, did not breach its fiduciary duty to Monarch. The firm‘s partners were innocent of
Strother‘s breach. The firm cannot be held to have breached a fiduciary duty on the basis of facts of
which its partners were ignorant.

9) Equitable remedies are always subject to the discretion of the court. In these circumstances,
disgorgement is imposed on faithless fiduciaries to serve a prophylactic purpose. Denying Strother the
profit generated by the financial interest that constituted his conflict teaches that conflicts of interest do
not pay. The prophylactic purpose thereby advances the policy of equity, even at the expense of a
windfall to the wronged beneficiary.

 CANADIAN NATIONAL RAILWAY CO. V. MCKERCHER LLP (2013)

McKercher LLP was acting for Canadian National Railway Co. (CN) in several matters. Without
CN‘s knowledge or consent, McKercher LLP accepted another retainer and acted for the plaintiffs in
a class action against CN for $1.75B, hastily terminating all retainers with CN. CN applied to strike
McKercher LLP as the solicitor of record due to alleged conflicts of interest.

Issues here are:

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a) Whether a law firm can accept a retainer to act against a current client on a matter unrelated to the
client‘s existing files

b) Whether a law firm can bring a lawsuit against a current client on behalf of another client and if not,
what remedies are available to the client.

SCC held as follows:

1) A lawyer‘s duty of loyalty has three salient dimensions:

a. a duty to avoid conflicting interests: which is mainly concerned with protecting a former or current
client‘s confidential information and with ensuring the effective representation of a current client.

b. a duty of commitment to the client‘s cause: which entails that, subject to law society rules, a lawyer
or law firm as a general rule should not summarily drop a client simply to avoid conflicts of
interest; and

c. a duty of candour: which requires disclosure of any factors relevant to the ability to provide
effective representation. A lawyer should advise an existing client before accepting a retainer that
will require him to act against the client.

2) R. v. Neil, (2002) held that the general bright line rule is that a lawyer, and by extension a law firm, may
not concurrently represent clients adverse in interest without first obtaining their consent. When the
bright line rule is inapplicable, the question becomes whether the concurrent representation of clients
creates a substantial risk that the lawyer‘s representation of the client would be materially and adversely
affected by the lawyer‘s own interests or by the lawyer‘s duties to another current client, a former client,
or a third person.

3) The bright line rule is based on the inescapable conflict of interest inherent in some situations of
concurrent representation and it reflects the essence of a fiduciary‘s duty of loyalty.

4) The rule cannot be rebutted or otherwise attenuated and it applies to concurrent representation in both
related and unrelated matters.

5) However, the rule is limited in scope, as follows:

a. It applies only where the immediate interests of clients are directly adverse in the matters on
which the lawyer is acting.

b. It applies only to legal interests, as opposed to commercial or strategic interests.

c. It cannot be raised tactically.

d. It does not apply in circumstances where it is unreasonable for a client to expect that a law firm
will not act against it in unrelated matters.
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6) McKercher‘s conduct fell squarely within the scope of the bright line rule. CN and the class suing CN
are adverse in legal interest; CN did not tactically abuse the bright line rule; and it was reasonable in the
circumstances for CN to have expected that McKercher would not concurrently represent a party suing it
for $1.75 billion.

7) McKercher‘s failure to obtain CN‘s consent before accepting the class action retainer breached the bright
line rule. McKercher‘s termination of its retainers with CN breached its duty of commitment. Its failure
to advise CN of its intention to represent the class breached its duty of candour.

8) However, McKercher possessed no relevant confidential information that could be used to prejudice CN
in the class action.

9) Disqualification may be required to avoid the risk of improper use of confidential information, to avoid
the risk of impaired representation, or to maintain the repute of the administration of justice. In this case
the only concern that would warrant disqualification is the protection of the repute of the administration
of justice.

10) While a breach of the bright line rule normally attracts the remedy of disqualification, factors that may
militate against it must be considered. These factors may include:

a. behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in
bringing the motion for disqualification;

b. significant prejudice to the new client‘s interest in retaining its counsel of choice, and that party‘s
ability to retain new counsel; and,

c. the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that
the concurrent representation fell beyond the scope of the bright line rule or applicable law society
rules.

b. „Lawyer-Client‟ Conflicts – these are the types of potential conflicts arising between the
lawyer‘s personal interest and those of the clients. The crucial question to ask is whether the
conflict which has arisen interferes with the lawyer‘s duty of loyalty to the client, and whether it
interferes with the lawyer‘s ability to provide uncompromising representations of the client‘s
interests.

The instances of these conflicts may be varied but a few examples are as follows:

- Where the lawyer had an affair with the client‘s wife – Szarfer v. Chodos (see page 25
above)
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 - Where the client believes the lawyer is using his circumstances to further her own cause –
see Stewart v. Canadian Broadcasting Corp. (see page 75 above).

- Where the lawyer becomes romantically or sexually involved with the client. See Law
Society of Upper Canada v. Hunter (2007) where senior lawyer, former Treasurer of the
Law Society and President of FLSC became romantically involved with client for whom he
handled custody and related matters. He was charged with, (and admitted) and was found
liable for professional misconduct in having placed himself in a conflict of interest in
relation to his client and in so doing, failed to maintain the integrity of his client.

- Where there are conflicting financial interests between the lawyer and the client. See
Strother (supra).

d) Client Loyalty
The lawyer‘s obligation to avoid conflicts of interest is also one of the dimensions of the lawyer‘s
duty of loyalty to the client. This is accentuated by public policy requirements of the need for
lawyers to make legal services available to the public and to provide legal services to their clients at
affordable cost, etc. And the duty to maintain client‘s loyalty and avoid conflicts of interest becomes
more pronounced as law practice evolves.

Conflicts of interest may also arise where the lawyer has own interests that may not perfectly align
with those of the client over an issue at stake in the legal representation. For instance, a lawyer may
have personal interest in a financial matter over which she has influence on the outcome, and that
outcome may not be in the best interest of the client‘s own interest. At times too, the interest at stake
may be personal, family or romantic which may bring about tension in the means of accomplishing
them.

The issues generated by conflicts of interest and duty of loyalty are said to be multiple and complex,
in the following ways:

- At the individual level, the issues generate key questions about the role morality and ethical
identity of individual lawyers and about how they manage and reconcile their own interests
vis-à-vis that of their clients and that of the public good.

- At the firm‘s level, they generate questions about governance, accountability and
responsibility.
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 - At the regulatory level, it may generate deep structural tensions between the legislature (as
represented by the law societies) and the courts. This is because in many jurisdictions, both
the court and the law societies exercise regulatory jurisdictions on issues of conflicts of
interest and duty of loyalty. And where the goals of these two institutions are divergent,
tensions (or even contradictions) will ensue.

- And again at the regulatory level, they raise questions about the capabilities of the
regulators. This is because the view that law practice should be considered a business is
gaining more ascendancy, and this increases the temptation to maximise the economic
interests of lawyers and law firms. Meanwhile, the duty of loyalty and to avoid conflict of
interest work to put these economic interests in check. The regulators must thus be able to
balance the public interest with the economic interest of the lawyers or else they would have
failed in their tasks.

e) Changing Firms: Potential Conflicts Involving Law Students and Lawyers

There are instances when conflicts of interest do arise when a lawyer working in law firm A transfers to law
firm B, and both law firms are on opposing sides in a matter.

Please review again the case of MacDonald Estate v. Martins (at page 90 above). In that case, the SCC
stated that the court will generally infer that confidential information will be imparted once it is shown that
there existed a previous relationship that is sufficiently related to the retainer. (This presumption is rebuttable,
though).

Secondly, the court decided that a lawyer who has relevant confidential information is automatically
disqualified from acting against a client or former client. See also the case of Ontario v. Chartis
Insurance Co. of Canada (2017) (at page 91 above).

The court in MacDonald Estate called on the relevant professional regulatory bodies to fashion out
appropriate screening mechanisms that will prevent the disclosure of confidential information when
a lawyer transfers firm. And in response to that call, many law societies have promulgated rules
which have been modelled after the provisions in the Model Code, to deal with this situation.

The Model Code itself makes provisions in respect of conflicts arising from transfer between law
firms in Rules 3.4-17 to 3.4-23, summarised as follows:

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1) That the rule will apply when the transferring lawyer or the new firm is aware at the time of
the transfer or later discovers that it is reasonable to believe that the transferring lawyer
possesses confidential information in respect of a matter for its client. It may also be a matter
which is the same or related to one in which the former law firm represents the former client
or where the interest of those clients conflict, or where the transferring lawyer actually
possesses such confidential information.

2) That as regards the other associates or partners in the new firm, knowledge of the
confidential information possessed by the transferring lawyer will not be imputed to them.

3) But if lawyers work together on matters in the same firm, it will be presumed that they have
actual knowledge of the confidential information possessed by the transferring lawyer.
However, this presumption may be rebutted if it is shown that reasonable measures were put
in place to prevent the disclosure. Such reasonable measures include timely and properly
constructed confidentiality screens. But each measure will be judged by the particular
circumstances of each situation. Generally, such screens will include:

a) That the new lawyer should not be involved in the representation of the client or
discuss the current matter or any information relating to representation of the former
client with any member of the new firm.

b) The new lawyer should not have access to any part of the file.

c) The new law firm should document the steps taken to screen the lawyer and the time
it was taken, and also advice all other affected lawyers and support staff.

4) If the transferring law actually possesses confidential information which may prejudice the
former client if disclosed to the new firm, then the new form must cease to act in the matter,
unless:

a) the former client consents to the continued representation;

b) the new law firm has taken reasonable steps to prevent disclosure and advised the
lawyer‘s former client of the measures taken if requested.

5) The rule applies to lawyers transferring to or from one government service or into or out of
an in-house counsel position. But it does not extend to purely internal transfers in which the
employer remains the same even after the transfer.

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 6) Before hiring a lawyer or an articled student from another firm, the new firm and transferring
lawyer need to determine if conflict will be created. This must be done after completing the
interview process but before hiring. In the course of doing this, care must be taken to ensure
that confidential information is not disclosed by the transferring lawyer.

7) A transferring lawyer who possesses confidential information that may be prejudicial to a

former client must not participate in any manner in the new firm‘s representation of such
client in the matter or must not disclose any confidential information respecting the former
client except as permitted. And unless the former client consents, his matter may not be
discussed by the new firm with the transferring lawyer.

f) Avoiding conflicts
Rule 3.4 of the Model Code makes provisions on the lawyer‘s duty to avoid conflicts of interest.
Specifically, Rule 3.4-1 provides that ―a lawyer must not act or continue to act for a client where
there is a conflict of interest, except as permitted under this Code‖. The Commentary adds that this
rule applies to a lawyer‘s representation of a client in all circumstances in which the lawyer acts for,
or provides advice for a client.

According to the rule, effective representation may be threatened where a lawyer is tempted to
prefer other interests over those of her own client. These other interests may include the lawyer‘s
own interests, those of a current client, a former client or a third party.

One of the many instances in which conflicts of interest may arise is in the area of a business
transaction between the lawyer and the client. In the same vein, the ethical guidelines provided in
the rules do not prohibit lawyers from going into business with their clients but prescribes some
requirements which must be met.

The Model Code in Rule 3.4-28 provides that: lawyer must not enter into a transaction with a client
unless the transaction with the client is fair and reasonable to the client.

Rule 3.4-27 to 3.4-41 identified business transactions with clients that lawyers should be cautious of,
and these include: borrowing from clients; lending to clients; providing guarantees; payment for fees
through an interest in the client‘s business; receipt of gifts and bequests in clients‘ wills; acting as a
surety to obtain a client‘s bail.

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g) Remedies
Remedies for the breach of conflicts of interest rule include the following:

1. Disqualification of the lawyer who is the cause of the conflict from continuing representation
of the client in the matter.

2. A complaint to the relevant governing body (law society) may result in disciplinary action.

3. A conflict of interest may also be the subject of an action against the lawyer for
compensation, as in Szarfer v. Chodos.

4. The lawyer may be ordered to disgorge to first client all benefits and profits received or
receivable from second client‘s companies, as in Strother v. 3464920 Canada Inc. (2007). In
Stewart v. Canada Broadcasting Corp., (supra) the lawyer was asked to disgorge the sum of
$3,250 which was the profit he made from his self-promotion at the expense of his former
client‘s case, which increased the adverse public effect on the client.

5. The law firm may be ordered to disgorge profits earned in form of legal fees from second
client as in Strother.

6. Legal fees earned at a time when the lawyer was in a position of conflict, and derelict in his
duty to the other client may be ordered to be accounted for and disgorged.

7. Disqualification may be required to avoid the risk of improper use of confidential

information, to avoid the risk of impaired representation, or to maintain the repute of the
administration of justice. McKercher LLP.

h) Withdrawal
The rules governing a lawyer‘s withdrawal from representation are as contained in Section 3.7 of
the Model Code. It starts with the general prohibition against a lawyer withdrawing from
representation of a client except for a good cause and on reasonable notice to the client. See Rule
3.7-1.

Commentary [1] of the Rule then explains that though the client may terminate the lawyer-client
relationship at will, the lawyer does not enjoy the same privilege. A lawyer who undertakes
representation of a client is under an obligation to complete the task as ably as possible unless there
is justifiable cause for terminating the relationship.
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In cases where the lawyer is permitted to withdraw, Commentary [2] provides that she must give
reasonable notice before withdrawal. What constitutes reasonable notice will be determined by all
relevant circumstances as there is no hard and fast rule about what is reasonable. But where the
matter is covered by statutory provisions or the rules of court, these will govern. Where it is not, the
governing principle applies that the lawyer should protect the client‘s interest to the best of her
ability and not desert the client at a critical stage of a matter or at a time such withdrawal will put
the client at a disadvantage or peril.

Rule 3.7-2 permits the lawyer to withdraw where there has been a serious loss of confidence
between the lawyer and the client. But this is subject to the rules about criminal proceedings and the
direction of the tribunal. Instances of serious loss of confidence may include:

- situations where the lawyer is deceived by the client,

- where the client refuses to accept and act upon the lawyer‘s advice on a significant point,
- where the client is persistently unreasonable or uncooperative in a material respect,
- where there is a material breakdown in communication,
- where the lawyer is facing difficulty in obtaining adequate instructions from the client.

Note however that Commentary [1] to that Rule prohibits the lawyer from using the threat of
withdrawal as a device to force the client to make a hasty decision on a difficult question.

Under Rule 3.7-3, non-payment of fees is another ground for withdrawal, unless serious prejudice
to the client would result. Withdrawal for non-payment of fees is also subject to the rules about
criminal proceedings and the direction of the tribunal.

In R v Cunningham, a case which concerned the withdrawal of counsel, the SCC held that courts
have inherent jurisdiction to control their own process, and this includes the authority to exercise
control over counsel when necessary to protect that process. The Court also laid down the following
principles:

1) Leave to withdraw should be granted where the application is made well in advance of any
scheduled proceeding and adjournment is unnecessary:

2) If timing is an issue, the court may grant permission to withdraw if counsel seeks to withdraw
for ethical reasons. However, ethical reasons do not include the non-payment of fees;

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 3) When counsel seek to withdraw because of non-payment of fees, the court may exercise its
discretion to refuse leave to withdraw but should only do so after considering the following
non-exhaustive list of factors:

a. whether it is feasible for the individual to represent himself;

b. whether there are other means of obtaining counsel;

c. whether counsel gave reasonable notice to the party to allow the individual to
seek other means of representation;

d. impact of the withdrawal on the respondent; and

e. the history of the proceedings including whether the party has changed
counsel repeatedly.

The Court also observed that the rules enacted by law societies are ―essential statements of the
appropriate standards of professional conduct‖.

i) Implications for Lawyers, Clients and Administration of Justice

The judgments of the courts, especially the SCC decision in R. v. Neil became of particular
significance as it became the most hotly debated topic in legal ethics in Canada in recent memory.
The judgment basically articulated a ―bright line‖ rule which restricted a lawyer‘s representation of
current clients whose interests are directly adverse to those of other current clients.

Is the current balance fair and efficient? There are several implications arising from the courts‘
decisions in the four cases summarised above when it comes to the issue of conflicts of interest, as
follows:

1. Some commentators have dismissed the court‘s judgment in R. v. Neil as an example of an

outstandingly bad and appalling conflict in the area of criminal law and therefore not of great
significance.

2. Others argue that Binnie J. in that judgment carefully analysed and made it clear that no man
can serve 2 masters. And also that a business conflict can now be a legal conflict because
―loyalty includes putting the client‘s business ahead of the lawyer‘s business‖. Therefore,
retainers will have to be detailed because of business conflicts.

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3. That in some respects, the duty of loyalty is of greater import than the duty of
confidentiality. This is because screening devices like ―Chinese walls‖ and ―cones of
silence‖ cannot be used to address the issue of loyalty like it can be used to address the issue
of confidentiality.

4. The judgment in Neil has changed the standard against which loyalty to current clients is
measured. Now, representation of clients which were previously allowed has become
disallowed. The ―bright line‖ rule now prohibits the representation of current clients with
adverse interest, even if the matter on which one client is being represented is unrelated to
the subject matter of the adverse representation, unless both clients consent.

5. Arising from the four cases above, some commentators are of the opinion that the potential
for law firm disqualification is noticeably heightened. For instance, a lawyer willing to offer
a limited range of legal services or pro bono legal services could inadvertently generate
conflict of interest for her law firm. And such a consequence may discourage lawyers from
offering public-spirited representations to clients in need.

6. The Model Rule sought to address the concern raised in paragraph (5) above by making
provisions in Rule 3.4-2A to 3.4-2D in respect of short-term summary legal services. The
Rule defines short-term summary legal services as ―advice or representation to a client under
the auspices of a pro bono or not-for-profit legal services provider with the expectation by
the lawyer and the client that the lawyer will not provide continuing legal services in the
matter‖. And that ―a lawyer may provide short-term legal advice services without taking
steps to determine whether there is a conflict of interest‖. But many view these provisions as
inadequate to address the issues of conflicts.

7. The Model Code also makes specific provisions in relation to concurrent representation with
protection of confidential information. By Rule 3.4-4 of the Rule, lawyers may engage in
concurrent representations of clients with competing interests, 2 or more lawyers in a firm
may act for such clients provided there is no dispute among the clients about the matter that
is the subject of the proposed representation, and provided they treat information received
from each client as confidential and do not disclose it to the other. Other conditions for such
concurrent representation include:

a. Disclosing the risks of such representation to the clients.

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 b. Obtaining clients‘ consent after recommending to them to obtain independent legal
advice.

c. The clients each determine that it is in their best interest for the lawyers to so act, and
they consent to the concurrent representation.

d. Each client is represented by a different lawyer in the firm.

e. Appropriate screening mechanisms are put in place to protect confidential information.

f. All the lawyers in the firm must withdraw from representing all the clients if a dispute
that cannot be resolved develops among the clients.

j) Is the Current Balance Fair? Efficient?

Now we are back again to the question: Is the current balance – largely framed for example by the
Supreme Court of Canada in Martin, Neil, Strother and McKercher – fair? Efficient?
In answering whether the current balance established through the 4 cases on conflicts above is fair
or efficient, the case of ONTARIO V. CHARTIS INSURANCE CO. OF CANADA (2017) (at
page 91 above) provides us with an insight. The case reveals to us that notwithstanding the
screening measures put in place by the new law firm of a transferring lawyer to prevent disclosure of
confidential information belonging to her former client, there could still be many instances when the
rules can be breached. In ONTARIO V. CHARTIS INSURANCE CO. OF CANADA (2017) the
transferring lawyer was said to have spent 50-60% of her time working with the new partner on
several other matters not related to the one she handled for her former client. The court found that
this particular circumstance alone may lead a reasonable man to conclude that confidential
information would be imparted. This was in spite of the fact that the new firm put in place adequate
screening measures.

The logical inference to be drawn from this is that notwithstanding the rules as established by the 4
cases and the screening guidelines established by rules of professional conduct (including the Model
Code), circumstances still exist that call into question how fair or efficient these rules are. According
to the Supreme Court, while the new firm may have achieved technical compliance with the ethical
guidelines on screening, compliance with the spirit of those guidelines is absent.

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Chapter 4

The Adversary System And Lawyers As Advocates

Issues to Consider:
a) The adversary system and its impact on professional obligations.
b) Lawyers as advocates.
c) Lawyers as counsellors.
d) Truth and rights.
e) Candour.
f) Zealous representation.
g) Duties to clients, opposing counsel, the court, other parties (including un-represented litigants) and
society.
h) Civility.
i) Document production.
j) Trial tactics, evidence and disclosure.
k) Witness preparation, conduct and perjury.

a) The Adversary System and its Impact on Professional Obligations

The duties and responsibilities of the practice of the lawyer as an advocate in the adversary system
are guided by the provincial rules of professional conduct. Most of these rules have striking
similarities with the provisions of Rule 5.1 of the Model Code and we shall attempt to summarise
them below.

The starting point in the consideration of the adversary system and the advocate‘s professional
obligations is the Model Code. Commentary 1 to Rule 5.1-1 provides as follows:

Role in Adversarial Proceedings – In adversarial proceedings, the lawyer

has a duty to the client to raise fearlessly every issue, advance every argument
and ask every question, however distasteful, that the lawyer thinks will help the
client‘s case and to endeavour to obtain for the client the benefit of every remedy
and defence authorized by law. The lawyer must discharge this duty by fair and
honourable means, without illegality and in a manner that is consistent with the
lawyer‘s duty to treat the tribunal with candour, fairness, courtesy and respect
and in a way that promotes the parties‘ right to a fair hearing in which justice can
be done. Maintaining dignity, decorum and courtesy in the courtroom is not an
empty formality because, unless order is maintained, rights cannot be protected.

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The above rule applies not only to court proceedings but to all appearances in proceedings before
boards, administrative tribunals, arbitrators, mediators and others who resolve disputes.

b) Lawyers as Advocates
Being a legal advocate basically involves engaging in advocacy on behalf of the client. And in
pursuit of this advocacy, the lawyer may choose to adopt one of the following models to define the
manner by which she will conduct her role as an advocate:

- Loyal advocacy – i.e., by loyalty to the client‘s cause

- Moral agent model – i.e., by pursuit of the public interest

- Integrity model – i.e., by pursuing and balancing a variety of competing interests

The lawyer as an advocate is a difficult role in which the lawyer must act zealously for the client on
the one hand, yet on the other hand fulfill her responsibility to protect and ensure that the justice
system functions properly. The above difficult task is exemplified by Rule 5.1-1 of the Model Code
which requires a lawyer acting as an advocate ―to ask every question, however distasteful‖, and to
represent the client ―resolutely and honourably‖ within the limits of the law while at the same time
―treating the tribunal with candour, fairness, courtesy and respect‖.

Also, Commentary 5 to Rule 5.1-1 requires the lawyer acting as advocate to de-emphasize her own
views but emphasize the client‘s views. It refrains the lawyer from expressing her personal opinions
on the merits of a client‘s case.

The advocate‘s task to balance the competing interest of the clients and that of the administration of
justice is an everyday task that must be undertaken with each case. The advocate, though to speak
for the client must do all he honourably can on behalf of the client. Correspondingly, he has a duty
to the court, described by Lord Denning in the following words in Rondel v. Worsley (1967) 1 QB
443:

… his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose
that he is the mouthpiece of the client to say what he wants: or his tool to do what he directs. He is none of
these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously
misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that
is, without evidence to support it. He must produce all the relevant authorities, even those that are against him.
He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He
must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code
which requires a barrister to do all this is not a code of law. It is a code of honour…. Such being his duty to the

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 court, the barrister must be able to do it fearlessly. He has time and time again to choose between his duty to his
client and his duty to the court. This is a conflict often difficult to resolve.

The views expressed above have been reinforced by the Court of Appeal for Ontario in Groia v.
Law Society of Upper Canada (2016) where the court emphasized the importance of a lawyer
balancing the zealous advocacy he owes to his client with the obligations he owes to the public and
hence to the justice system itself and all its participants.

It has been said, however, that most of the ethical and professional challenges arises well before
trial, in the particular context of civil litigation. This is because it is at the lawyer‘s initial meeting
with the client that most of the following issues arise: competence, conflicts of interest,
confidentiality, fees and access to justice for that client, etc.

The lawyer‘s duties as an advocate are therefore summarised as follows:

i. He must represent the client resolutely and honourably within the limits of the law; in
adversarial proceedings, the lawyer must fearlessly raise every issue, advance every argument
and ask every question that will be of the client‘s benefits, no matter how distasteful.

ii. At the same time, in representing the client, the lawyer must treat the tribunal with candour,
fairness, courtesy and respect.

c) Lawyers as Counsellors
The lawyer also has specific obligations under the rule when acting as counsellors to the client. And
because counselling basically takes place in private settings (in contrast to litigation which takes
place normally in the open), the lawyer is also faced with the difficult task of maintaining an ethical
balance between pursuing the client‘s interest and observing the rules of professional conduct in the
course of counselling.

Another difficult task when counselling a client is being able to refrain from merely telling the client
what he wants to hear. The ethical restraint is to prevent the lawyer from stretching or distorting the
law to reach the outcome that the client wanted. The role of the counsellor should be to offer
independent and candid advice about what the law requires even if that is not what the client wants.

It has been said that different rules should apply to the lawyer as an advocate and the lawyer as a
counsellor. It is clear that the institutional setting that justifies the one-sided partisanship of the
advocate during the adversarial litigation process is absent during counselling. This is because,
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during litigation, whatever partisan argument pursued by the lawyer on her client‘s behalf will be
countered by the opposing party. And a judge will be present to adjudicate. But in counselling, it is
just the lawyer and her client, hence the need to be objective, honest and candid with the client.

When counselling, the lawyer is most often obliged to explain the law to the client and how it
applies to the client‘s situation. The client looks to the lawyer for legal opinions and guidance on
how to proceed. And the rules enjoin the lawyer giving advice to be honest and candid with the
client. The advice must be clear and understandable to the client.

The rule is clear that notwithstanding a lawyer‘s duty of loyalty to the client, lawyers must be
vigilant to avoid becoming the ―tool or dupe‖ of an unscrupulous client. And the Commentary to
rule 3.2-7 advises a lawyer to seek information about the client and obtain clarification on the
objective of the matter if the lawyer has suspicion or doubts as to whether she is assisting the client
in dishonesty, fraud, crime or illegal conduct.

The lawyer must not knowingly assist or encourage any dishonesty, fraud, crime or illegal conduct,
states Rule 3.2-7 of the Model Code. In addition, the lawyer must not instruct the client to violate
the law or counsel disobedience of a court order. In Law Society of Upper Canada v. Sussman
(1995), the lawyer counselled his client to deny her husband access to the children, in total flagrance
of a court order. The Disciplinary Committee noted in its ruling that:

There can be no behaviour more disruptive to our system of justice and more likely to bring the
administration of justice into disrepute than a lawyer, while representing a party to a dispute,
counselling his or her client to disobey the clear, unequivocal terms of a Court Order. To do so is
to undermine the Court‘s effectiveness, contaminate the esteem with which it is held in the eyes
of the citizenry and foment the law of the jungle. Behaviour of this kind is particularly troubling
by reason of the highly undesirable example which it provides to ordinary citizens, lawyers and
indeed law students.

However, by Commentary 4 of this Rule 3.2-7, a lawyer is permitted to properly advise and
represent a client in technically breaching the law when the client in good faith and on reasonable
grounds desires to challenge or test the law, and the only way to effectively do this is by breaching
that law. Meanwhile, in breaching that law, no injury to a person or violence must be involved. And
the lawyer should ensure that the client understands and appreciates the consequences of bringing a
test case.

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Talking about knowingly assisting the client, the Rule in 3.2-7 goes beyond when the lawyer
actually knowingly assists or encourages a client in perpetrating acts of dishonesty or fraud. The rule
places additional burden on the lawyer never to do this also when the lawyer ―ought to know‖ that
her action or inaction will assist or encourage the client in any dishonesty or fraud. So, it may not be
a defence to the lawyer to say she didn‘t know when she ought to know.

d) Truth and Rights

The Model Code and rules of professional conduct of the various provincial law societies require the
lawyer to be honest and truthful with the clients. The lawyer must always seek to find an ethical
balance in the course of professional representation.

This ethical balance is crucial because many lawyers misrepresent their knowledge and experience
to gain a client‘s confidence; they exaggerate the complexity of work or the demands of skills to
justify their fees.

Thus, the lawyer must be wary of:

- Lying to the client about the amount of work done for him
- Making incorrect statements about whether a certain work has been completed
- Giving assurances about her availability to meet with the client
- Giving assurances about availability to work on a matter
- Making untrue statements about her degree of experience and competence.

e) Candour
The lawyer also has a duty of honesty and candour. The duty of candour relates not only to the
advice given but also to the relationship between the lawyer and client. The lawyer owes a client the
duty of candour which requires the lawyer to disclose any factor which may be relevant to the
lawyer‘s ability to provide effective representation.

The lawyer must also be competent to provide the advice and must have sufficient knowledge of the
relevant facts. When rendering legal advice, the lawyer should indicate when she is making
assumptions, and should be wary of making bold or over-confident assurances as to the outcome of
a particular step she will take.

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At times, clients require lawyers to provide financial, business or strategic advice. In doing this, the
lawyer who doesn‘t have the training in these matters must be candid enough to make it clear to the
client that she has limitations on her ability to provide such non-legal advice. Otherwise, if the client
acts on such non-legal advice which turns out to be incorrect, the client may sue the lawyer in
negligence, and such a claim may not be covered by the professional indemnity insurance which
relates only to providing legal services.

The duty of candour also requires a lawyer to promptly notify the client where the lawyer has made
an error that could damage the client‘s interest. The lawyer must then discuss with the client on how
to proceed, including a candid discussion about the client‘s option of bringing a claim against the
lawyer. The lawyer should insist that the client should obtain independent legal advice before
making a decision. This recommendation of an independent legal advice also applies to a situation
where the lawyer has interest in the client‘s transactions.

f) Zealous Representation
We have already discussed the lawyer‘s duty of zealous representation of the client as it applies in
the adversarial system. We have also severally discussed in many chapters about the different
circumstances of the lawyer‘s zealous representation as it applies to criminal prosecution and
defence, during negotiations, as a government lawyer and as a legal advisor to a corporation. The
basic principle is that lawyers are agents of their clients; they are legally and ethically required to
represent their clients loyally and with zeal; the lawyer has a duty to fearlessly advance his client‘s
cause, and his loyalty is to no one else, aside the client.

But does this zealous representation have limits? The answer is yes. And these limitations may be
summarised under the following principles as enunciated by Nathan M. Crystal in his article in the
Wake Forest Law Review titled, Limitations on Zealous Representation in an Adversarial System:

1. Substantive and remedial principles – it is well-established that lawyers representing clients

who are engaged in disputes are important components of the system of dispute resolution.
And to this end, lawyers must act consistently with the underlying purpose and process of
the system, because to do otherwise will undermine the system.

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 2. The bona fide dispute principle – this principle stipulate that lawyers should not present
claims that do not involve bona fide disputes. In spite of their zealous representation of the
client, lawyers must refrain from instituting frivolous suits on the clients‘ behalf.

3. The impartial decision maker principle – this principle states that notwithstanding the
lawyer‘s zealous representation of the client, the lawyer must not interfere with the
impartiality of decision makers, as this will undermine the administration of justice. Thus,
for example, a lawyer must not engage in communications with the judge or jurors without
the knowledge and presence of the other party. A lawyer must not seek to unlawfully
influence any judicial officer in the performance of his or her official duties, etc.

4. The principle of qualified truth-maximising rules – the principle stipulates that dispute
resolutions are structured by rules of procedure which are put in place in order to maximise
the truth. Some of these rules include those relating to examination of witnesses, disclosure
of adverse evidence, disclosure of exculpatory materials by the prosecution, disclosure of
adverse law, investigation and discovery, etc. Therefore, notwithstanding the lawyer‘s duty
of zealous representation, the lawyer must not undermine these rules of procedure.

These limitations shall be further discussed in more specific circumstances below.

g) Duties To Clients, Opposing Counsel, the Court, Other Parties, and Society
When acting as an advocate in an adversarial system, there are some duties imposed on the lawyer
to other person(s) involved in a matter and to the administration of justice itself. These duties
include:

1. To clients:

a) To represent the client fearless and zealously.

b) Must endeavour to obtain for the client every remedy and defence authorised by law.

c) Not to waive or abandon the client‘s legal rights without the client‘s informed consent.

d) To avoid and also dissuade the client from frivolous objections or attempts to gain undue
advantage from slips or oversights that do not go to the merits of the case.

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 e) To avoid and dissuade the client from tactics that will merely delay the matter or harass the
other side.

f) When acting as defence counsel to an accused person, to protect the client as far as possible
from being convicted except by a court of competent jurisdiction and upon sufficient legal
evidence.

g) In defending an accused person, the lawyer may properly rely on any evidence, defences or
technicalities not known to be false or fraudulent.

h) At times, an accused person may admit that he committed the crime and the lawyer is
convinced that the admissions are clear, true and voluntary. Notwithstanding this
admission, the lawyer may still take proper legal steps to defend the accused. These steps
may include raising an objection to the jurisdiction of the court, testing the evidence given
by each prosecution witness through cross-examination, attacking the form of indictment,
challenging admissibility of evidence, etc. But the lawyer must not call evidence which she
knows to be false, or which suggests that another person committed the offence, or present
evidence inconsistent with the admission.

2. To opposing counsel:

a) Because the lawyer‘s function as an advocate is openly and necessarily partisan, the
lawyer is not obliged (unless required by law) to assist an adversary or advance matters
harmful to her own client‘s case.

b) Duty of civility to a colleague, as discussed below.

c) To respond appropriately and in a timely professional manner to correspondences and

inquiries from colleagues.

d) To refrain from generally communicating with a represented party without the consent
of his lawyer.

3. To the court:

a) To maintain dignity, decorum and courtesy in the courtroom because rights cannot be
protected unless order is maintained.
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 b) The rule regarding respect and decorum applies to all appearances and proceedings,
including before administrative tribunals, boards, mediators and others who resolve
disputes, regardless of their function or whether the procedure is formal or not.

c) To refrain from expressing her personal opinions on the merits of her client‘s case to the
court.

d) Must not mislead the court about the position of the client in the adversarial process.

e) The lawyer must not knowingly attempt to deceive the court or alter the course of justice
by offering false evidence, misstating facts or law, suppressing evidence or otherwise
assisting in any fraud, crime or illegal conduct.

f) Must not deliberately refrain from informing the court of any binding authority which
the lawyer considers to be directly on point but has not been mentioned by anybody.

g) Must not appear before a court or tribunal while under the influence of alcohol or a drug.

4. To other parties (including unrepresented and self-represented litigants):

a) Must not, as the lawyer to a complainant, threaten to lay a criminal or quasi-criminal

charge or complaint to a regulatory authority with the offer to withdraw such charge or
complaint in order to gain a benefit for the complainant.

b) To be accurate, candid and comprehensive in presenting her client‘s case and ensure that
the court is not misled because the opposite side is not represented.

c) While representing an accused, the lawyer may communicate with the complainant, e.g.,
for the purpose of settlement, obtaining facts or obtaining an apology from the accused.
However, the lawyer must not take unfair or improper advantage of a vulnerable
complainant. The lawyer should make it clear to the complainant that she is only
representing the interest of the accused during such communications, and should
endeavour to have a witness present.

d) Must urge the unrepresented person to obtain independent legal representation.

e) The same rules above apply to self-represented litigants. The lawyer acting for a client
must make it clear to the self-represented litigant that the lawyer is only acting for the

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 client, and not the self-represented litigant. The lawyer must not take undue advantage of
the self-represented litigant as this would be unethical and unprofessional.

5. To society:

a) The lawyer must not abuse the process of court by instituting or prosecuting cases which
although may be legal in themselves, but are brought out of malice or with the sole
purpose of harassing or injuring the other party.

b) The lawyer as advocate must not also knowingly assist the client or permit him to do
anything that the lawyer considers dishonest or dishonorable.

c) Where the adversarial proceedings will likely affect the health, welfare or security of the
child, the best interest of that child should be taken into account but without prejudice to
the legitimate interest of the lawyer‘s client.

d) The lawyer must not appear before a judicial officer with whom he, his associates or the
client has personal or business relationships which may give appearance of pressure,
influence or inducement that may affect the partiality of the officer. In such situations,
the lawyer must only appear with the consent of all parties and if it is in the interest of
justice to so appear.

e) A lawyer must not endeavour or allow anyone to endeavour to directly or indirectly

influence the decision/action of a tribunal or its staff in any case except by open
persuasion as an advocate.

f) A lawyer must not counsel or participate in the concealment, destruction or alteration of

incriminating evidence or act in any manner as to obstruct or attempt to obstruct the
course of justice. Evidence here includes documents, electronic information, objects or
substances relevant to a crime but does not include documents or communications
protected by solicitor-client privilege. It does not also include evidence which the lawyer
reasonably believes are otherwise available to the authorities.

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h) Civility
Civility includes a requirement for lawyers to treat each other, and other persons participating in the
justice system with a degree of politeness. Here, it addresses the manner in which counsels
communicate with each other, specifically the politeness and courtesy in lawyer communication. It
is also an obligation enshrined in the provincial law societies rules of professional conduct as well as
the Model Code, mandating lawyers to act fairly, honestly and with the utmost integrity in their
dealings with other lawyers and members of the court.

The Model Code makes explicit provisions on the need for lawyers as advocates to deal with
courtesy and good faith, to agree to reasonable requests, and to avoid sharp practises in their
dealings with one another. Other sources of the rules or obligations for lawyers to maintain civility
include:

- the court, in its inherent jurisdiction to govern its proceedings;

- best practice civility code, which though not formally binding yet provides guidance for
courts, lawyers and regulators; and,
- the lawyer‘s own personal ethics.

Some lawyers are not favourably disposed to their idea of civility, arguing that it may erode their
duty as a zealous advocate on their client‘s behalf. According to Alice Woolley, ―lawyers do not and
should not ‗share and be nice‘ where to do so impinges on their loyalty {to} their client or their
fidelity to the legal system‖. Opponents of these arguments, however, counter that being civil does
not necessarily mean that the lawyer is prejudicing the client‘s interest. That as a matter of fact, the
judge or jury may take note of bad conduct which may even impair the client‘s interest.

 GROIA V. LAW SOCIETY OF UPPER CANADA, 2018 SCC 27

The Law Society of Upper Canada brought disciplinary proceedings against G, a defence lawyer, based on
uncivil behaviour during trial wherein he levelled several allegations of prosecutorial misconduct against the
opposing counsel. He was found guilty of professional misconduct and this was upheld by the Law Society
Appeal Panel. The issue at appeal before the court was, what is the approach for assessing whether in-court
incivility amounts to professional misconduct?

The SCC held as follows:

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1. That the Law Society Appeal Panel recognized the importance of civility to the legal profession and
the corresponding need to target behaviours that are detrimental to the administration of justice. At
the same time, it remained sensitive to the lawyer‘s duty of resolute advocacy — a duty of particular
importance in the criminal context because of the client‘s constitutional right to make full answer and
defence. The Appeal Panel recognized the need to develop an approach that would avoid a chilling
effect on the kind of fearless advocacy that is at times necessary to advance a client‘s cause.

2. The Appeal Panel‘s approach strikes a reasonable balance between flexibility and precision: it sets a
reasonably precise benchmark that instructs lawyers as to the permissible bounds of ethical
courtroom behaviour, by articulating a series of contextual factors — what the lawyer said, the
manner and frequency in which it was said, and the presiding judge‘s reaction to the lawyer‘s
behaviour — that ought generally to be considered when evaluating a lawyer‘s conduct, and by
describing how those factors operate when assessing a lawyer‘s behaviour.

3. Prosecutorial misconduct allegations, or other challenges to opposing counsel‘s integrity, cross the
line into professional misconduct unless they are made in good faith and have a reasonable basis.
Requiring a reasonable basis for allegations protects against unsupportable attacks that tarnish
opposing counsel‘s reputation without chilling resolute advocacy.

4. It is not professional misconduct on account of incivility to challenge opposing counsel‘s integrity

based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual
foundation, such that if the legal position were correct, the challenge would be warranted.

5. Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the
court.

6. Looking at the reasonableness of a lawyer‘s legal position at this stage would allow a law society to
find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in
the law society‘s opinion, ought to have known or ought to have done. This would risk unjustifiably
tarnishing a lawyer‘s reputation and chilling resolute advocacy.

7. The question for incivility purposes is not whether G was right or wrong on the law; rather, the
question is whether, based on his understanding of the law, his allegations of prosecutorial
misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. And
based on this, the charges against G were dismissed.

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i) Document Production
At the pre-trial session, the advocate will be forced to consider and make a whole lot of advocacy
decisions. These will include considering the client‘s case and how to fearlessly raise every issue
and advance every argument without overstating the merits of the client‘s case. The advocate must
consider the objective of the case, for example, whether it is being used to extract a settlement or get
at the other side; and if yes, whether the advocate is a participant in this abuse of court process.

In many jurisdictions, most of the above factors must be considered by the advocate especially at the
stage of drafting the pleadings, in the following manner –

- Notwithstanding the advocate‘s need to zealously pursue his client‘s case, the pleadings
must not contain allegations that are unnecessary, scandalous, frivolous or which may
prejudice or delay the fair trial of the matter, or which may generally amount to an abuse of
court process. Pleadings which offend these rules may be struck out on a motion by the
other side.

- Notwithstanding whether or not the opposing party makes an application to have the
offending pleadings struck out, the Model Code in Rule 5.1-2(2)(a) enjoins the lawyer
acting as an advocate not to abuse the process of the tribunal by instituting or prosecuting
matters which, though legal in themselves, are nonetheless motivated by the client‘s malice
and are brought for the purpose of injuring the other party.

- General professional rules prohibit the lawyer as advocate from pursuing unmeritorious or
improper steps in the litigation process. For example, Rule 5.1-1 provides that the lawyer
acting as advocate must discharge his duties by fair and honorable means, without illegality
but with courtesy and respect.

In D.C.B. v. Zellers Inc. (1996), the plaintiff‘s young son had been arrested for shoplifting
at the defendant‘s store but the goods were already recovered without damage. Defendant‘s
lawyer later sent a letter to the plaintiff demanding compensation for damages for the theft.
Plaintiff paid but later brought an action to recover the sum paid. In deciding that the money
should be recovered, the judge noted that as a competent and honorable lawyer, the lawyer
who wrote the letter of demand ought to have known that the claim had no prospect of
success in court and that it would be futile to pursue it.

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The discovery process is apparently one of the thorniest aspects of litigation, because clients do not
understand why they should open up their homes, offices and files to the prying eyes of their
opponents, and most times do not want to cooperate.

Unfortunately, however, discovery is a process of litigation which has extensive provisions in

provincial court rules as to how to conduct it and the types of information that must be provided to
the other side as well as how they must be provided. Similarly, the court rules provide consequences
for non-compliance or improper conduct during the discovery stage.

In reality, though, the actual process of production and discovery takes place between the client and
the lawyer, in the lawyer‘s office, away from the judge or the other party. This is the stage where the
lawyer and client review the necessary documents and information for discovery. And it is at this
stage that the difficult task comes to fore when the lawyer has to consider balancing the client‘s
interest vis-à-vis the proper conduct of the discovery procedure. This difficult task is exemplified by
the following case:

 GROSSMAN v. TORONTO GENERAL HOSPITAL (1983)

D was a patient in defendant‘s hospital and was claimed to have gone missing. He was not found
until the 12th day, dead in an airduct shaft in the hospital. His survivor brought a claim against the
hospital. During production, the hospital produced only one document: the patient‘s chart, ostensibly
on their lawyer‘s advice. The plaintiff thought the hospital should have undertaken a search when
they discovered D missing and therefore, police, security, fire service or ambulance should have
been involved and all these agencies should have reports which should have been produced at the
trial. Coroner‘s report should have been produced too. But no documents were produced to these
effects. The court, ordering the hospital to produce substantially more than D‘s chart spoke to the
duty of counsel and parties in making disclosure in the following words:

On full, fair and prompt discovery – ―a party giving discovery is under a duty to make a careful
search for all relevant documents in his possession and to make diligent inquiries about other material
documents which may be in the possession of others for him. A solicitor has a duty of careful
investigation and supervision and of advising his client as to what documents should be included in
the affidavit, because a client cannot be expected to know the whole scope of his obligation without
legal assistance…. The very essence of the practice of civil litigator is to do this

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As regards lawyer‘s ethical and professional duty when it comes to production of documents, the
judge had this to say:

The Rules of Practice are designed to facilitate production, not frustrate it….

Honest differences of opinion might arise over the question whether a given document should or must
be produced. If that occurs, the court has power to decide the issue…

{The rules of court} notwithstanding, it becomes quickly clear to anyone setting out to practice in the
courts that ―production‖ is open to serious abuse. The integrity of the system depends upon the
willingness of lawyers to require full and fair discovery of their clients. The system is, in a sense, in
the hands of the lawyers. The opportunity for stonewalling and improper concealment is there. Some
solicitors grasp it. They will make only such production as can be forced from them. That is bad
practice. It can work real injustice. It causes delay and expense while the other side struggles to see
that which they had a right to see from the first time. In such a context the advantage is to the long
purse. The worst consequence is that the strategy is sometimes successful, giving its perpetrators a
disreputable advantage. The practice must be condemned. If it were widespread it would undermine
the trial system.

Where a defendant deliberately refuses to comply with the notice to produce, such will be subject to
sanctions. And where it is shown that the defendant‘s conduct was as advised by his solicitor, then
the responsibility for it must fall on the solicitor.

In Grossman (supra), the court noted that the defendant solicitor‘s conduct was an example of
excessive zeal. Because even if privilege is claimed over a document, sufficient information must be
given in respect of that document, to enable the opposing party identify it. It should be possible to
describe a document sufficiently without revealing its contents.

For production of documents, confidentiality may present a difficult task. Under the Model Code, a
lawyer who obtains information by accident is obliged to inform the disclosing party that she has
obtained a privileged document that was inadvertently disclosed. The document may then be
destroyed or returned. But then, avoidable damage may have already occurred from such unintended
production.

Settlement negotiation is another pre-trial area where the lawyer will be required to vigorously
pursue the client‘s interest but at the same time must balance this zeal with ethical and professional
considerations. This is also because settlement negotiation most often takes place away from the

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court. It may occur in the lawyer‘s office with the client. And the lawyer will be tasked on how to
pursue her client‘s interest during negotiation while upholding professional ethics.

j) Trial Tactics, Evidence and Disclosure

Once the pre-trial process is completed and the trial starts, the lawyer as advocate becomes also
confronted with another difficult task of balancing his duty to fearlessly represent her client with the
professional obligation not to knowingly assist or permit a client to do anything that the lawyer
considers to be dishonest or dishonorable.

Therefore, during the trial, the advocate must strive to maintain that balance between resolute
advocacy and respect for the limits of the law and tribunal, and recognise at all times that advocacy
cannot be unlimited.

We shall look at those aspects of the trial that requires the lawyer to always respect this limit, as
follows:

1. Witness Preparation – a thorny but essential part of the trial process where the lawyer
prepares the witness for what to expect during the trial and makes him comfortable with the
process beforehand. This will include telling the witness to tell the truth, a review of the
client‘s case, the questions to ask, a review of the areas of interest to the opposing side, the
likely questions that may be asked on cross-examination, etc. All these aspects of witness
preparation are ethical and acceptable, and are different from ―witness-coaching‖ in which
the witness is tutored on what to say, which is unethical and illegal as it may amount to
witness tampering and obstruction of justice. The lawyer must thus be alert not to cross the
ethical boundary when preparing her witness(es).

As earlier stated, the various rules of professional conduct and the Model Code forbid
lawyers from knowingly assisting or permitting clients to do anything which the lawyer
considers dishonest or dishonorable. Lawyers are also forbidden from knowingly permitting
a witness or party to be presented in a false or misleading way, or encouraging the witness to
suppress evidence or to refrain from providing information to the other party.

Some of the ethical considerations when preparing a witness also include not wilfully
counselling witness on evasive evidence, not putting suggestive questions to the witness, etc.

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2. Cross examination –. Cross-examination has been described by the SCC in R. v. Lyttle
(2004) as a ―faithful friend in the pursuit of justice and an indispensable ally in the search of
truth.‖ And that at times, there will be no other way to expose falsehood, to rectify error, to
correct distortions or to elicit vital information that would have remained concealed forever,
other than through cross examination. Hence, a cross-examiner may pursue any hypothesis
that is honestly advanced on the strength of reasonable inference, experience or intuition.

However, a cross examiner may not put suggestions to the witness recklessly or facts she
knows to be false. In the criminal as well as civil context, cross examination may be limited
due to some certain circumstances. For example, in R. v. Shearing (2002), the SCC affirmed
that though, wide latitude may be allowed a cross-examiner to crack the untruthful witness in
the adversarial process, yet exceptional restraints may apply in the context of sexual assault
cases. Here the wide latitude does not amount to unbridled license, and cross examination
remains subject to the requirements of good faith, professional integrity and other
limitations.

The SCC also stated in R. v. Lyttle that a trial judge must balance the rights of an accused to
receive a fair trial with the end to prevent unethical cross-examination. ―There will thus be
instances where the trial judge will want to ensure that ‗counsel {is} not merely taking a
random shot at a reputation imprudently exposed or asking groundless questions to waft an
unwarranted innuendo into the jury box‘‖.

Therefore, in fearlessly pursuing the case of the client, counsel must not mislead the court;
she must not lend herself to casting aspersions on the other party or witnesses for which
there is no sufficient basis in the information in her possession.

In R. v. R. (A.J.), the accused was charged with incest. Crown counsel had conducted an
aggressive 141-page cross-examination filled with interjections and an approach that was
calculated to demean and humiliate the accused. Counsel for the accused submitted on
appeal that the Crown counsel‘s cross examination resulted in a miscarriage of justice. The
court held that the crown counsel is entitled, in some cases to conduct a vigorous cross
examination of an accused because effective cross examination serves the truth-finding
function just like the effective cross-examination of the complainant. However, there are
well-established limits on cross-examination, one of which is repeated improprieties during
cross examination, which may cross the line from the aggressive to the abusive. The court

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 decided that the Crown counsel‘s cross-examination skewed the balance and crossed the line,
which significantly undermined the appearance of the fairness of the trial.

3. Disclosure: this is another aspect of practice where the lawyer‘s obligation to balance her
fearless zeal to pursue the client‘s matter must be weighed with the duty to the
administration of justice.

By the provisions of Rule 5.1-4, a lawyer has obligations to disclose errors or omissions
which would amount to a breach of the rules. According to the Commentary to this Rule, the
lawyer must refuse to heed the client‘s instructions to do anything that will involve a breach
of the rule. He must do everything reasonably necessary to prevent the breach and if that
cannot be done, he must withdraw from representation or seek leave to do so, in accordance
with the provisions on withdrawal from representation.

But there are times when the client would not want errors or omissions disclosed in order to
achieve a personal end. In this instance, the lawyer must weigh the balance and ensure that
she does not cross the ethical boundary from zealousness into breach of professional
obligations.

4. Other areas of ethical concerns during trial will include when representing facts to a jury in
an opening statement or summarizing the law in closing arguments; informing the court of
binding authorities – both positive and negative; objecting to the opposing lawyer‘s line of
questioning during cross-examination of one‘s client; calling reply evidence, etc.

k) Witness Preparation, Conduct and Perjury

Additional obligations are imposed on the lawyer under the adversarial system, as follows:

a. In the course of examining a witness, the lawyer may pursue any hypothesis honestly
advanced through reasonable inference, experience or intuition. But the lawyer must not
make suggestions to a witness recklessly or when she knows them to be false.

b. The lawyer must not improperly dissuade a witness from giving evidence or advise a
witness to be absent.

c. She must not knowingly permit a witness or party to be presented in a false or misleading
way or for such party or witness to impersonate another.

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d. The lawyer must not needlessly abuse, hector, harass or inconvenience a witness.

 Blank v. Canada (Minister of Justice) [2006] 2 S.C.R. 319

The Crown laid series of charges against B and his company which were later quashed. Subsequent
fresh charges were also stayed. B sued the Federal Government in damages and requested access to
all records pertaining to the prosecution of himself and the company. His request for information was
partly denied as only some of the documents were released to him. The government claimed solicitor-
client privilege on others which they claimed were subjects of litigation. On an application to a
motions judge, it was held that the litigation privilege claimed on documents excluded from
disclosure by the government expired with the end of the litigation that gave rise to the privilege.

The SCC held:

1. The Minister‘s claim of litigation privilege fails. The privilege has expired because the files to
which B seeks access relate to penal proceedings that have terminated.

2. Litigation privilege and solicitor-client privilege are driven by different policy considerations
and generate different legal consequences.

3. Litigation privilege -

o is not directed at, still less, restricted to, communications between solicitor and client. It
contemplates, as well, communications between a solicitor and third parties or, in the case of
an unrepresented litigant, between the litigant and third parties.

o The purpose of litigation privilege is to create a zone of privacy in relation to pending or

apprehended litigation.

o The common law litigation privilege comes to an end, absent closely related proceedings,
upon the termination of the litigation that gave rise to the privilege.

o Unlike the solicitor-client privilege, it is neither absolute in scope nor permanent in

duration.

o The privilege may retain its purpose and its effect where the litigation that gave rise to the
privilege has ended, but related litigation remains pending or may reasonably be
apprehended.

4. The litigation privilege would not in any event protect from disclosure evidence of the claimant
party‘s abuse of process or similar blameworthy conduct. Even where the materials sought
would otherwise be subject to litigation privilege, the party seeking their disclosure may be

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 granted access to them upon prima facie showing of actionable misconduct by the other party in
relation to the proceedings with respect to which litigation privilege is claimed.

5. Litigation privilege should attach to documents created for the dominant purpose of
litigation. The dominant purpose test is more compatible with the contemporary trend favouring
increased disclosure.

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 Section C

SOME SPECIFIC PRACTICE AREAS

There are different practice areas and contexts in the Canadian legal profession, including, for
example, criminal law, corporate law, family law, general civil litigation, poverty law, government
lawyering, in-house counsel, etc.

This section of the course aims to achieve at least the following:

(i) to give students an appreciation of the range of obligations to clients, and the limits to
these obligations, that arise in some of these various lawyering roles and contexts;
(ii) to introduce students to the ways in which certain roles of lawyers have very specific,
sometimes unique ethical and professional obligations associated with them in Canada;
and,
(iii) to examine and critique these various obligations in the context of some of the
overarching principles discussed in the initial parts of the course.

General Issues to Consider:

a) Is there a difference from an ethical perspective between the various practice areas and
contexts?
b) Should there be?
c) Does the Model Code adequately contemplate these various practice situations?

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Chapter 1

Ethics And Dispute Resolution: Counselling And Negotiation

Issues to Consider:
a) When does a lawyer-client relationship come into existence?
b) Lawyer as negotiator, mediator and arbitrator.
c) Disclosure obligations.
d) Lies, misrepresentations and misleading truths: is there a difference?
e) Conflicts of interest.
f) Confidentiality.
g) Are adversarial rules helpful?
h) Expanding nature of legal services.
i) Collaborative lawyering.
Model Code, “tribunal”, Chapter 3, Rule 3.2-2 and Commentary; Chapter 5, Rule 5.7 and Commentaries;
Chapter 7, Rule 7.2 and Commentaries.

At page 109 above, we considered the duty of the lawyer as a counsellor vis-à-vis his ethical
obligations in giving the client information, opinion and advice (counselling). In this chapter, we
shall look at the ethical rules governing the role lawyers play in acting as negotiators on the client‘s
behalf. We shall look at the ethical challenges faced by lawyers in performing this task, just like we
did for litigation in the previous chapter.

And because counselling and negotiation basically takes place in private settings (in contrast to
litigation which takes place normally in the open), we shall consider if this setting has any impact on
the lawyer‘s task of maintaining an ethical balance between pursuing the client‘s interest and
observing the rules of professional conduct.

a) When Lawyer-Client Relationship Created

As in counselling, the lawyer-client relationship where the lawyer is retained for negotiation
purposes could be created without any formality. It is created the same way any other lawyer-client

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relationship is created. Please refer again to page 65 above on when the lawyer-client relationship is
said to be established.

The point must be made though, that when dealing with an unrepresented party on behalf of a client,
the lawyer must among other things ensure that the unrepresented party does not proceed under the
impression that his interests will be protected by the lawyer. In fact, the lawyer must make it clear to
the unrepresented party that she is acting exclusively in the interests of her client.

If, however, the unrepresented party then requests the lawyer to also advise or act for him, the
lawyer should be governed by the rule on joint retainers.

b) Lawyer as Negotiator, Mediator and Arbitrator

Just like what obtains during counselling, the lawyer is also often obliged to explore dispute
resolution alternatives and negotiate on behalf of the client. The client also looks to the lawyer for
legal opinions and guidance on how to proceed. And the rules enjoin the lawyer giving advice to be
honest and candid with the client.

The Model Code in Rule 3 provides that a lawyer must advise and encourage a client to compromise
or settle a dispute whenever possible to do so on reasonable basis. The lawyer is to discourage the
client from commencing or continuing useless legal proceedings.

The Commentary also recommends to the lawyer the use of alternative dispute resolution (ADR)
mechanisms when appropriate. The lawyer should inform the clients of ADR options and if the
clients so instruct, the lawyer must take steps to pursue these options.

The rule in litigation equally applies here: the rule is clear that notwithstanding a lawyer‘s duty of
loyalty to the client, lawyers must be vigilant to avoid becoming the ―tool or dupe‖ of an
unscrupulous client. And the Commentary to rule 3.2-7 advises a lawyer to seek information about
the client and obtain clarification on the objective of the matter if the lawyer has suspicion or doubts
as to whether she is assisting the client in dishonesty, fraud, crime or illegal conduct.

You must, however, note that different rules apply when it comes to negotiation; people are allowed
to act in their own best interests in the course of negotiation. They are even free to negotiate
unethically. Negotiating parties can withhold material facts from each other and even make
untruthful statements, especially when setting out a bottom-line position. A ready example is when a
party at the negotiation table says he would never accept anything short of $50,000, knowing fully
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well that he is ready to accept far less. This is not seen as unethical or immoral but as part of the
negotiation tactics where bluffing and deception are freely employed.

There is obviously therefore no contractual duty to bargain in good faith when negotiating. And this
view about negotiation seems to have been noted by the court in the case of Westcam TV Group
Ltd. v. CanWest Global Broadcasting Inc. (1996) when the court observed that

Parties involved in arm‘s length negotiations commonly conceal their true intentions. It is
part of the negotiating process that positions are advanced that do not represent what a
party truly expects or is prepared to agree to in the end.

The only restraints are those minimal restrictions imposed by the law as regards fiduciary duties,
deceit and misrepresentations.

Some writers have proposed alternatives in order to identify and understand the competing interests
in the minds of the lawyers as negotiators. According to Trevor C. W. Farrow in the abstract, The
Negotiator as Professional: Understanding the Competing Interests of a Representative Negotiator,
the writer advances an alternative, expansive model of the representative negotiator, to wit: the
negotiator-as-professional model. This model sees the role of the representative negotiator as being
defined by at least 4 sets of interests, to wit:

- client interests,
- a broad understanding of the representative's self-interests,
- ethical interests, and
- the public's interests.

c) Disclosure Obligations
Disclosure has always been a sore point in ethical considerations during negotiations. In
conventional adversarial proceedings, disclosure is a definite procedure guided by rules and
regulations. A party who seeks disclosure of information in such a proceeding must make a request.
And disclosure of information will only be made when requested by the other party. Secondly, a
lawyer in conventional legal ethics cannot disclose information obtained in the course of the lawyer-
client relationship without the client‘s consent even if material.

However, there seems to be no such rules guiding disclosure of information during negotiation, save
the rule in the Model Code that forbids a lawyer from assisting the client knowingly or otherwise,
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from perpetrating dishonesty, fraud or crime. But in the absence of specific guidelines, it leaves it to
the ethical decision of the lawyer whether to disclose or not. Certainly, many lawyers may choose to
withhold such information where it will be detrimental to the cause of their client or not place them
in a better stead. Certainly, most clients do not even want to disclose such information.

Under Rule 3.3-1 Commentary 4 explains the general nature of the duty of confidentiality owed by
the lawyer to anyone seeking advice or assistance on a matter involving the lawyer‘s professional
knowledge. Commentary 6 enjoins the lawyer to avoid disclosure to one client of confidential
information concerning or received from another client. The lawyer‘s obligation is to observe this
rule as to non-disclosure even in the face of mutual and friendly negotiations.

Many have called for disclosure obligations during negotiation, similar to that obtained in litigation.
Many have even suggested that since negotiation should be guided by mutual trust, disclosure
should be mandatory when the lawyer is involved, whether requested or not. In this sense, the
lawyer will be under an obligation to make the necessary disclosure to facilitate open negotiations.

d) Lies, Misrepresentations and Misleading Truths: Are There Differences?

When parties employ lawyers in the negotiating process, the issue then turns to the competence of
the lawyer to negotiate, as prescribed by the definition of the competent lawyer in Rule 3 of the
Model Code and as it applies to required negotiation skills.

The second issue is whether the above rule about negotiations applies to lawyers too. Are lawyers
allowed to advance a position that do not represent what the client truly expects or is prepared to
agree to in the end? This question becomes important because the various provincial rules of
professional conduct require the lawyer to act with integrity and in good faith in her dealings with
other lawyers and unrepresented or self-represented opposing parties. And this differentiates the
lawyer from the opposing parties.

The general belief is that the rules do not aggressively regulate lawyer in negotiations because of the
following reasons:

1) the lawyer in negotiations will strive to achieve the most favourable bargain for her client
hence the need to respect the lawyer‘s fundamental duties to promote her client‘s interests.
Opponents of this argument have countered that since the lawyer‘s ethical duty of balancing
the client‘s interest with that of the court and the administration of justice have been
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 prescribed in other areas of practice, then why should it be difficult when it comes to
negotiations.

2) If lawyers are restricted in negotiations, clients may be forced to abandon the use of their
services and engage in the negotiations themselves or employ other professionals.

3) There is no need to worry about misrepresentations during negotiations and non-disclosure

as these are already covered by other areas of law such as the torts of deceit and
misrepresentation or the doctrine of mistake in contract.

4) Drafting a rule about what is and is not permissible in negotiations would be a difficult
exercise as it would be hard to achieve a consensus among lawyers on this.

e) Conflicts of Interest. (f) Confidentiality

Most of the professional obligations that apply to lawyers in all the other areas as discussed above
equally apply to a lawyer in the negotiation context. Examples of these include the professional
duties to avoid conflicts of interest during negotiation and to maintain client confidentiality.

In addition to the above, however, there are some professional obligations which apply specifically
to the negotiation context. These are:

- Specific provisions in the provincial rules of professional conduct which require lawyers to
work towards settlement, which in a sense is actually compelling the lawyer to engage in
negotiations, because settlement can hardly be achieved without negotiations.

- Most of the rules, including the Model Code require the lawyer to obtain the client‘s consent
and instructions before proposing any settlement.

- In the Model Code and in some other provincial rules, negotiation is one of the tasks that the
lawyer cannot delegate to a non-lawyer or which can be so delegated only with the client‘s
consent.

- In the course of negotiations, the rules restrict lawyers from the use of threat to commence
or stop a criminal or quasi-criminal proceeding in order to achieve an end or in order to
force the other party into settlement.

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g) Are Adversarial Rules Helpful?
While the objective of negotiations is to arrive at an outcome mutually acceptable to all the parties
involved, the lawyer in negotiations, generally speaking, will try to maximize the client‘s returns at
the expense of the other party. Of course, she is under a professional obligation to represent the
client resolutely, honourably and within the limits of the law. To do this, she will employ a variety
of methods to achieve her purpose. The interests of the other party will be viewed as irrelevant so
long as the lawyer focuses on her own goals of achieving maximal returns for the client.

Often times, lawyers in negotiations will be motivated to employ zealous representation to achieve
this purpose, employing necessary adversarial tactics and strategies, based on the client‘s
instructions. An example of this is when lawyers are engaged in negotiations during a divorce. The
task of negotiating child and spousal support, or of dividing property and other possessions, or of
establishing child custody and access arrangements could be really overwhelming, especially when
the parties are not on talking terms. Outrageous demands are made from both ends.

However, in negotiating, the lawyer must ensure that her negotiating stance does not diverge from
the mandate of the client. Therefore, the lawyer‘s focus will be solely on her client‘s specific
position rather than attempting to discern the true interests of both parties.

Secondly, the adversarial rule employed during negotiations has the tendency to discourage mutual
trust necessary for joint gain. Rather, it promotes brinkmanship and the spirit of competitiveness
between the parties, the spirit of wanting to achieve the best outcome at the expense of the other
party.

h) Expanding Nature of Legal Services.

A recent survey concluded that Canadians get assistance from lawyers on only 11.7% of their
justiciable issues while the remaining 88.3% legal matters are handled without legal assistance.
Taking into cognizance that some of this larger percentage may not want help while others do not
even recognise that they have legal issues, the survey established that a significant number of people
still need and want legal assistance but can‘t get it for a variety of reasons. These include not being
able to afford the legal fee or being unable to find someone to help.

Most lawyers focus their attention only on how to preserve and protect this small 11.7% share of the
legal services market, neglecting the unserved 88.3%, and this in turn has made other service
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providers to step in to bridge this gap. Invariably, this has led to the need to keep expanding the
nature of legal services in order to cater to the need of the unserved.

One of the initiatives adopted to solve this problem is the creation of alternative legal service
providers. For example, the Law Society of Ontario created the paralegal option to provide limited
legal services in a specified number of matters. It is also being explored whether paralegals or
special limited license providers can provide legal assistance in family law issues.

Another aspect to the expanding nature of legal services is the advent of technology, especially in
information and communication. Today‘s clients are technologically savvy and are very different
from the traditional law firm clients. They are used to employing the internet to find information and
solutions or for procuring services online. These clients would readily turn to the internet to meet
their legal needs. These include websites that sell legal forms, legal process outsourcers, apps or
websites that dispense legal information or advice, etc. Many sites today offer fill-in-the-blank
forms or formats of wills, leases, articles of incorporation, pleadings, criminal pardons, trademark
registrations, etc. While some of them are affiliated with lawyers and law firms, many have no
connection to such. Law practitioners must, therefore, adapt their legal practices to meet the
demands of this set of clients.

In addition to the above, most corporate organizations now employ in-house corporate counsel, as a
means of reducing cost and achieving efficiency at the same time. As we shall see below, this
phenomenon has resulted in the astronomical increase in the number of in-house counsel employed
within the last decade, compared to the previous one.

i) Collaborative Lawyering
Collaborative lawyering is the contractual commitment between a lawyer and her client not to resort
to litigation to resolve the client‘s problem. With this method, the lawyer is retained for advice and
representation regarding non-litigious resolution of the conflict, to focus on a negotiated, consensual
outcome. The retainer will further stipulate that if eventually the client then decides that litigation
would be the only option left to resolve the matter, then the collaborative lawyer must withdraw and
receive no further remuneration for work done on the matter.

Collaborative lawyering is used in a number of different areas of law, but is most pronounced in
family law. And some of the main attractions include reduced expense and speedier results. In a

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2005 report, The Emerging Phenomenon of Collaborative Family Law; A Qualitative Study of CFL
Cases, the researchers found that collaborative lawyering in the family law context also provided an
opportunity for responsibility in role modelling. The report noted as follows:

An equally common comment clients made about their choice of CFL was that the collaborative

process would enable parties with children to separate in the most amicable and least destructive

way. These clients saw themselves as modelling ―good‖ behaviour for their children and envisaged the
collaborative process as a way to prevent either or both spouses from descending

into the abyss of acrimonious litigation. To some extent, fear of the consequences of litigation drove
this group to choose CFL.

In the course of collaborative lawyering in family law, the research also found out that:

… While almost all lawyers will say that their clients are the ultimate decision makers, the
―dance‖ that precedes a final outcome takes many different forms. The relationship between
lawyer and client in making decisions about the management of the case reflects that
lawyer‘s procedural (do we negotiate? what do we offer? do we play hardball?) and
substantive (what is a good outcome? what is a just outcome?) values, and how far these
values are integrated with those of the client or simply imposed….

…. Even lawyers who are committed to client autonomy would accept that the values of the
individual lawyer are not irrelevant to the process of reflection and deliberation—a lawyer
will likely wish to be more than simply the client‘s ―hired gun.‖ The lawyer may exert
significant influence over the client. The lawyer often (and with one-shot litigants such as
divorce clients, usually) controls what information will and will not be presented for the
client‘s consideration.

In CFL, client autonomy in decision making is further complicated by some significant pre-
existing constraints: certain decisions (for example, the decision to litigate or to refuse to
disclose relevant information) would risk the ending of the lawyer-client relationship.

In the said report, ―ethical‖ was defined as ―anything that might raise a difficult choice or decision
over the ‗right‘ thing to do under the circumstances‖. And when it comes to ethical issues in
collaborative lawyering practice, the changes in client consultation, negotiation, and advocacy
procedures present the lawyer with unfamiliar terrain in which they must exercise their personal
discretion over appropriate ‗ethical‘ behaviour. The problem is often compounded by the absence of
clear precedents or personal experiences on which to draw. Even the various provincial rules of

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professional conduct fail to provide specific guidance in this area. The collaborative lawyer is thus
left to personally deal with ethical dilemmas some of which include:

- Whether to propose collaborative lawyering to a vulnerable client or how to turn away

clients who are not suitable to collaboration;

- How to discharge the obligation to disclose all relevant information to the other party,
(including access to the client‘s private discussions with his lawyer);

- How to deal with questions of lawyer-client privilege;

- Under what circumstances would the collaborative lawyer consider it necessary to withdraw
from a case;

- When should the collaborative lawyer continue to encourage the clients to continue to
negotiate rather than start litigation, given that the decision to start litigation ends the
retainer for that collaborative lawyer with its attendant loss of fees? How much pressure
should be placed on the client in this regard?

- How to make a client understand that mutual lawyer-lawyer relationships in collaborative

practice is quite different from the conventional arm‘s length relationship. Some clients do
feel uncomfortable with the closeness of their lawyer with the lawyer of the opposing side in
collaborative practice, and may feel that the lawyers are ganging-up on them.

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Chapter 2

Ethics And The Practice Of Criminal Law

Model Code, Chapter 3, Rule 3.5-6 and Rule 3.5-7 and Commentaries; Chapter 5, Rule 5.1 and
Commentaries

As in the other practice areas discussed above, we shall, in this chapter, examine how lawyers
conduct their criminal law practice, whether as defence or Crown counsel, while balancing their
practice with their ethical obligations. To this end, we shall look at the two instances separately.

a) As A Defence Lawyer
The starting point here is the extreme zealousness of the defence counsel, as exemplified by the
speech of Henry Brougham (quoted on page 23 above) in the Queen Caroline adultery case, which
was quoted by Binnie J. of the SCC in R. v. Neil (supra). And supporters of this proposition have
included Abbe Smith, who in his abstract, ―The Difference in Criminal Defence and the Difference
it Makes‖, states as follows:

Simply put, zeal and confidentiality trump most other rules, principles, or values.
When there is tension between these ―fundamental principles‖ and other ethical rules,
criminal defence lawyers must uphold the principles, even in the face of public or
professional outcry. Although a defender must act within the bounds of the law, he or
she should engage in advocacy that is as close to the line as possible, and indeed,
should test the line, if it is in the client‘s interest in doing so.

The criminal defence lawyer has the unenviable attribute of being misunderstood. Most people
assume that a lawyer who defends an accused person shares in the moral of that accused person as
his alter ego, or is prepared to do the bidding of the accused person no matter the harm caused to
others.

As a defence lawyer, the counsel takes on special roles as assigned by law. And it is in the criminal
defence context that the idea of resolutely defending the client is more pronounced. The defence
counsel is able to justify her action on the basis that there are several legal protections which have

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been included in our laws in recognition of the right of the accused person. And the defence lawyer
merely advances these legal protections in defending the accused. Such protections include:

- the presumption that every accused person is innocent until proven guilty;

- right to make full answer and defence, including the right to test the case of the prosecution
by cross-examining prosecution witnesses;

- the principle against self-incrimination, which protects the accused person from being
coerced to help in building the prosecution‘s case;

- Right to obtain full disclosure of all information relevant to the matter but in the possession
of the prosecution;

- Right to exclude evidence that point to the guilt of the accused when such evidence has been
obtained in violation of Charter rights, and even when such evidence is reliable.

In the exercise of all these rights, the accused is sought to be protected against state domineering and
occasionally abusive powers. The loyal defence counsel helps the accused person in achieving this.
Thus, the recognised ethical duty of the defence counsel is to ensure that the state does not obtain a
conviction of the accused in the absence of proof beyond a reasonable doubt, based on admissible
and reliable evidence. This ethical duty of the defence lawyer is influenced by the notion of justice
as listed above, to ensure due process.

However, the duty of the criminal defence lawyer is not absolute. It is subject to the following
limitations:

1. Defence counsel must act with integrity. Integrity in the context of cross-examination will
include limitations to questions that are subject to the requirements of good faith,
professional integrity and other limitations.

2. Duty not to discriminate against any person. Model Code Rule 6.3-5.

3. Not to advise or pressure an innocent accused to plead guilty. Doing otherwise will amount
to knowingly assisting the client in perpetrating a fraud on the court. See R. v. Johnson
(2014). The decision to plead guilty belongs exclusively and unequivocally to the accused,
so also is the decision whether to have a judge alone or judge and jury trial, whether to
testify or whether or not to raise a not criminally responsible defence.

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 4. Criminal defence counsel has a duty not to mislead the court. Examples of such acts include
allowing the client to use a false name, failing to correct the record, failing to disclose that
the client had a previous criminal conviction, etc.

5. In sexual assault cases, the defence counsel does not have the same latitude in cross-
examining the complainants (known as ―whacking the complainant‖ through the use of
stereotypes regarding victims of sexual assault to secure a favourable outcome) given the
equality and privacy interests at stake. See R. v. Shearing (above at page 123).

6. When the accused is guilty:

a. Admission of guilt by the accused to the defence counsel places some strict
limitations on the defence counsel‘s ability to run a defence. See Rule 5.1-1 of the
Model Code. But according to Commentary 10, the lawyer is not obligated to plead
the client guilty.

b. So, notwithstanding the accused admission of guilt to the defence counsel,

Commentary 10 stipulates that the defence counsel is still entitled to challenge the
jurisdiction of the court, or object the admissibility of any evidence, or test the
evidence of each prosecution witness, and argue that the evidence as a whole do not
support the charge. But the counsel should go no further than that.

c. Defence counsel cannot set herself up as the judge of her client before the trial
begins, i.e., by disbelieving her client, or not respecting the client‘s instructions, or
not truly defending her client‘s interests but merely leaving it to the trial of fact to
decide his guilt or innocence.

b) As A Prosecutor
On the other hand, we will consider the prosecutor as a ―minister of justice‖ and also the limits of
her role. As a gatekeeper, the prosecutor exercises plenty of prosecutorial discretion in the conduct
of a criminal matter. These include:

- charging/screening decisions, i.e., whether or not charges should be laid, or whether there
should be a trial;

- whether to consent to or oppose bail;

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 - whether or not to agree to a guilty plea;

- whether or not to call any particular witness(es);

- whether or not to agree to a joint submission on sentencing;

- whether or not to appeal an acquittal or a sentence.

Prosecutors are also advocates who, in the conduct of a criminal trial, must disclose and produce all
relevant documents and information, present sufficient evidence and test any evidence called by the
defence.

However, there are also ethical limits on the professional conduct of the prosecutor. Firstly, in Rule
5.1-3 of the Model Code, the prosecutor is required to act for the public and the administration of
justice, resolutely and honourably, within the limits of the law and equally treat the tribunal with
candour, fairness, courtesy and respect.

Secondly, as a prosecutor, he is not to obtain a conviction, or secure one at all cost. The role of the
prosecution was aptly described in R. v. Boucher (1955). In that case, the accused was charged with
murder and convicted. He appealed his conviction, arguing that the Crown counsel‘s closing address
was inflammatory and inconsistent with the professional responsibilities of a prosecutor. In ordering
a new trial, the SCC held that:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to

obtain a conviction; it is to lay before a judge what the Crown considers to be credible
evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all
available legal proof of the facts is presented: it should be done firmly and pressed to
its legitimate strength but it must also be done fairly. The role of prosecutor excludes
any notion of winning or losing; his function is a matter of public duty than which in
civil life there can be none charged with greater personal responsibility. It is to be
efficiently performed with an ingrained sense of the dignity, the seriousness and the
justness of judicial proceedings.

The above notwithstanding, the prosecutor cannot be prevented from acting as a strong advocate,
vigorously pursuing a legitimate result to the best of its ability. This is both permissible and
desirable. And the prosecutor must be allowed to perform its functions within the boundaries
outlined above. Some writers have thus suggested that the prosecutor exercises ―controlled zeal‖, a
modified version of the traditional advocate‘s zeal.

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There are things the prosecutor cannot do in view of the demand for fairness in the adversarial trial.
A prosecutor must not:

- abuse a witness in cross-examination

- seek irrelevant or inadmissible testimony

- make inflammatory opening or closing remarks

- pursue trial strategies that undermine trial fairness

- fail to disclose all relevant information in their possession or control that are not subject to
privilege, or subject to disclosure/production restrictions, etc.

Where the prosecutors violate these legal and ethical responsibilities, a guilty verdict against the
accused may be overturned, cost or damages may be awarded against the Crown, or where the
violation is serious, a stay of proceedings may be ordered.

Regulation and Supervision of Prosecutors – the following institutions regulate and supervise the
conduct of prosecutions:

1. The Attorney General - In terms of supervision and regulation, the law is settled that the
Crown is under the Attorney General and has prosecutorial discretion in making independent
decisions on prosecutions. The court will not interfere with such executive functions in line
with the principle of separation of powers. In furtherance of their supervisory roles, the
Attorney Generals of many provinces and the federal Director of Public Prosecutions have
published policy manual and deskbooks respectively to provide guidelines to prosecutors in
the performance of their duties.

2. The law societies - But where the exercise of prosecutorial discretion offends the rules of
professional conduct, then the law society will regulate such conducts. See R. v. Krieger
(2001), where the prosecutor withheld exculpatory forensic results that showed that another
person committed the murder for which the accused was charged. The court held that the
failure of the prosecutor to disclose such relevant exculpatory evidence was not within
prosecutorial discretion. And the law society has the jurisdiction to investigate any alleged
breach of ethical standards, even those committed by Crown prosecutors in connection with
their prosecutory discretion, notwithstanding that the Attorney General had previously

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 reviewed this as an employer. Such a review for bad faith or improper purpose by a
prosecutor does not constitute a review of the exercise of prosecutorial discretion per se.

3. The Courts – where the issue in contention is one regarding prosecutorial discretion, the
court will only review it for abuse of process. ―Abuse of process refers to Crown conduct
that is egregious and seriously compromises trial fairness and/or integrity of the justice
system‖. See R. v. Anderson. But where the issue relates to tactics and conduct, the court has
powers to review the tactics and conduct of the prosecutor (and all other counsels) in the
exercise of its inherent jurisdiction to control its own processes, even in the absence of abuse
of process. For example, superior courts possess inherent jurisdiction to ensure that the
machinery of the court functions in an orderly and effective manner, and in doing this, the
court has the power to penalize counsel (including prosecutors) for ignoring rulings or
orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-
examination, improper opening or closing addresses or inappropriate attire.

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Chapter 3

Government Lawyers

Model Code, Chapter 3, Rules 3.2-3, 3.2-7, 3.2-8 and Commentaries; Chapter 7, Rule 7.4 and Commentaries.

Public sector lawyers include those lawyers who work for one of the three levels of government or
for any of the public entities created under administrative law, such as lawyers for hospitals,
schools‘ boards, Crown corporations, human rights commission, public utilities, legal aid clinics,
etc. In this chapter, however, discussions will be limited to the unique ethical issues relating to only
lawyers working for one of the three levels of government: federal, provincial and municipal;
(hereafter ‗Government Lawyers‘).

The large number of lawyers working in the public sector notwithstanding, they have been described
by Allen Hutchinson as the ―orphans of legal ethics‖. This is because references to public sector
lawyers are almost entirely absent in the provincial rules of professional conduct, with ―little energy
…directed towards defining and defending the role and duties of government lawyers‖.

The ethical issues that arise with government lawyers (in addition to the issues considered for
Crown counsel above), are whether they have broader and deeper ethical obligations to the
administration of justice and/or the protection of the public interest. Does the fact that one‘s client is
the Crown affect the nature of the lawyer‘s obligations? If yes, to what extent? These were some of
the issues raised in the case below:

 EVERINGHAM V. ONTARIO (1991)

Crown counsel who was acting against a patient and who was to conduct cross-examination the
following day met privately with the patient without the presence of the patient‘s counsel. On an
application to disqualify the Crown counsel as solicitor of record, the motions court judge held that
lawyers employed by the government have a higher professional obligation than other lawyers to
observe the Rules of Professional Conduct. On appeal, the Ontario Divisional Court held that there
was no basis for this conclusion. The court held that all lawyers in Ontario are subject to the same
single high standard of professional conduct, and it was an error of law to exact from government
lawyers a higher standard under the Rules than that required of lawyers in private practice.

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Some commentators like Adam Dodek believed, in his article Lawyering at the Intersection of
Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law, that as a
matter of public law, government lawyers should owe higher ethical duties than private lawyers
because they exercise public power. And that government lawyers ―operate within a matrix of a rule
of law triangle. Their higher duties are as a result of operating at the intersection of three axes: as
delegates of the Attorney General, as public servants and as members of the legal profession‖.

a) Nature of the Duty of Government Lawyers

The issue remains whether government lawyers owe any ethical obligations, and if they do, what the
nature of those ethical obligations is. This issue is crucial given that government lawyers participate
and advise in the designing and authorising of government policy. For example, it has been said that
government lawyers authorised the use of torture by the Bush Government and the CIA in the US
post-9/11, by stretching legal doctrines and analysis in order to endorse the government‘s goals.
This, to some commentators, was a violation of the ethical standards of lawyers providing advice to
the government or to anyone; and that the lawyers were not candid or independent in their bid to
justify state-sanctioned torture.

There are times that the government lawyer might be required to provide advice or opinions on
some issues which may raise ethical concerns, e.g., to endorse the use of state power against an
individual. Such a government lawyer may thus be placed at the intersection between the rights of
the citizenry and the power of the state, with ethical, political and moral dilemma that may not be
present for lawyers in private practice. Because of this peculiar situation, the government lawyer
may be said to be ethically distinct from other lawyers in the profession.

To John Tait, a former Deputy Minister of Justice of Canada, the government lawyer owes a number
of unique duties which includes being ―guardian of the rule of law as it applies within government in
a parliamentary democracy‖. To him, government lawyers have a higher duty to the law and to the
constitution, which means that they must provide objective and independent advice. ―The rule of
law is not protected by unduly stretching the interpretation to fit the client‘s wishes. And it is not
protected by giving one interpretation to one client and another to another department.‖

For others, like Cotter, the self-interest which moulds the obligations of a private lawyer when there
is a conflict between private claimants should not be the same for government lawyers. This is
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because the government owes just outcomes to all of their citizens, including the ones with whom
they are in conflict. And this just outcome can only be achieved through moderation of the zealous
advocacy. So, ―{g}overnments and their lawyers owe to their citizens a duty of fair dealing‖.

b) Ethical Challenges Faced by Government Lawyers

The ethical challenges faced by government lawyers are the same in many respects with those faced
by corporate lawyers as discussed on page 147 above. This is because government lawyers also
work as employees in an organization, and this comes with the following challenges:

1. The government lawyers become part of the policy-making process of government, and
therefore it becomes difficult for them to be independent and candid in the advice they
provide.

2. They can become socially and culturally embedded in the norms associated with their
organization, and such social/cultural norms may be at variance with their ethical obligations
as lawyers.

3. Like corporate lawyers, withdrawal for a government lawyer means quitting the job, which
could be a costly and tough decision to make. This in turn may make it probably impossible
for the lawyer to dissent with the positions taken by the government or department generally.

4. The lawyer may become psychologically and excessively committed to the goals of her
employer due to organizational pressures, and may violate her ethical obligations just to
ensure that the goals of that organization are realised. See an instance of this in the case of
General Motors of Canada Ltd. V. Canada. (2008), where the appellant argued that the
Crown had wrongfully and inaccurately pled the assumption which it had not made in order to
obtain a tactical advantage about the burden of proof. The tax court noted that assumptions
relied upon in pleadings must be stated fairly, honestly and accurately; it also observed that the
Crown had obviously coached the witness on discovery to prevent the appellant from
obtaining unfavourable information. The court berated the Crown counsel‘s conduct as
―flagrant and reprehensible‖, and ―intrinsically appalling‖.

5. Another issue relates to conflicts of interest. The court held in MacDonald Estate v. Martin
that where one lawyer in a firm is found to be in a conflict of interest situation, then that

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 lawyer‘s firm is also disqualified. Now, can the same ratio be applied to Crown counsel? If an
individual government lawyer is found to be in conflict of interest situation, does it mean that
the totality of the office of the Attorney General will be disqualified? Or why should a
different set of rules apply here?

6. The Model Code allows a lawyer to disclose limited confidential information where there is a
reasonable apprehension of imminent risk of death or serious bodily harm. But this may
present a dilemma for a government lawyer who observes a crime in the government agency
she works for. If she exercises her whistleblowing rights, the issue will become whether such
lawyer will be violating her ethical duty of confidentiality under the code of conduct. See
Edgar Schmidt v. Canada (2018) where a lawyer at the Department of Justice filed a lawsuit
against the Minister of Justice, alleging that the Minister was in violation of a Regulation
which requires the Minister to examine every bill from the House of Commons to check if
their provisions are inconsistent with the Charter. Schmidt alleges as a whistleblower that no
Minister had ever carried out such examination, and after 10 years of consistently reporting to
the authorities unsuccessfully, he applied to court for a declaration. His action was dismissed
at the Court of Appeal which upheld the judgment of the Federal Court. Matter presently at the
SCC.

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Chapter 4

Lawyers in Organizational Settings; Corporate Counsel

Model Code, Chapter 3, Rules 3.2-3, 3.2-7, 3.2-8 and Commentaries.

Lawyers working in organizational settings face unique ethical challenges which may be different
from those faced by lawyers working for clients as a sole practitioner or in a firm. For this purpose,
certain recent ethical rules have been developed to guide them.

a) The Development of the In-House Model

Traditionally, legal practice consisted of lawyers working as sole practitioners or in a firm. Those
who venture to become corporate counsel were regarded as those who were not able to withstand the
strenuous demands of billable hours to sustain the partnership. They were regarded as occupying
―the lesser part‖ of the legal profession.

However, the above view of corporate counsel has changed tremendously over the last forty years.
Today, in-house counsel has become an attractive career option as they now occupy strategic
positions. The corporate counsel no longer only undertakes ―routine, repetitive corporate work‖ but
now engage in managing major transactions, sit close to the top of corporate hierarchy as a member
of the senior management, undertake complex litigation and hiring outside lawyers only on as-
needed basis.

In the US, the role played by in-house and external lawyers in the collapse of many corporations
became the subject of attention. Such corporations included Tyco, WorldCom, Qwest, Vivendi,
Sprint, etc. In the wake of the collapse of Enron, (the world‘s largest public-traded corporation), the
American government then took steps to transform business law with the promulgation of the
Sarbanes-Oxley Act of 2002. The law introduced radical changes to the rules of professional
responsibilities for in-house counsel (among other professionals), given their failure to prevent the
scandals from occurring. In particular, the US Congress directed the Securities and Exchange

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Commission to develop standards of professional conduct for attorneys involved with corporate
governance of corporations.

In Canada too, corporate fraud involving companies traded on the stock exchanges occurred in the
1990s with companies like Bre-X Minerals, Livent, and then the 2001-2002 implosion of Nortel
Networks (which at that time had the largest market capitalization of any publicly traded Canadian
company. Many blamed the lawyers working as counsel in these organizations for not doing enough
professionally and ethically to protect public interest as far as these organizations were concerned.

With these scandals, the role of the in-house counsel has become even more important and ethically
complex. They are now under tension and demand to ensure compliance with new corporate
governance rules as well as the ever-shifting internal and external requirements from regulators,
employees, creditors, shareholders, pensioners, etc. Thus, in-house counsel now have roles that
extend beyond merely providing technical legal advice and litigation management. They currently
assume responsibilities that include matters at the heart of proper governance of organizations, and
for them to report evidence of material breach, subject to certain exceptions.

b) Ethical Challenges Faced by In-House Counsel

In-house counsel face unique ethical challenges since they have to avoid structural conflict of
interest in the course of serving only one client or organization who is also the employer: they have
to maintain their independence while at the same time fulfilling their duties of loyalty to the client or
organization that employs them.

Thus, the ethical dilemma has always raised the following question: Should lawyers act as
gatekeepers, responsible for protecting the public against malfeasance by their corporate clients? If
we answer yes, it will seem contradictory to the traditional idea of lawyers as zealous advocates
responsible for loyalty only to their clients. Thus, the ethical questions for lawyers (and especially
for those in organizational settings) will include:

- Should lawyers ever be responsible for reporting on their clients to a government agency or
regulator?

- Should lawyers ever be permitted to report on their clients to a government agency or

regulator to prevent harm to investors or the public?
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Another issue that arises with in-house counsel is the determination of who the client is. And to
whom the lawyer owes her loyalty. Notwithstanding that the lawyer relates with the senior executive
or manager from whom she takes instructions, and who also makes decisions about performance
evaluations and compensation, the organization is the client, not the individuals giving directions to
the lawyer. The lawyer must not mistake these individuals for the entity.

In large organizations, there may be several persons in authority, and who may not agree on many
issues. At times, the organization chart may not even be clear as to who wields what power and
influence. The ethical duty of the in-house lawyer is therefore to become familiar with the
bureaucratic setup, as this will enable her to discern who actually speaks for the organization on
what issues

Furthermore, the corporate counsel is ordinarily obliged to defer to the manager or officer from
whom she normally receives instructions. The ethical rule in Rule 3.2-8 of the Model Rule mandates
the lawyer to report up-the-ladder if she knows that the organization acted or intends to act
dishonestly or fraudulently in a matter. However, the dilemma faced by corporate counsels at times
is the fact that she might not even know whether the officer is acting illegally or against the interest
of the organization. This is because the information that will give her this knowledge may be
fragmented and scattered among several offices, none of whom has the complete information. With
this scenario, the lawyer may be deprived of the complete information to enable her form an opinion
on whether the act would be illegal or fraudulent.

And to some commentators like Milton C. Regan, JR in the article Professional Responsibility and
the Corporate Lawyer, the rules of professional conduct were originally formulated with the litigator
in mind and do not easily fit within the context of counsel working for an organization. For example,
when an in-house counsel is negotiating a joint venture agreement on behalf of an organization,
should she regard the other party as an adversary or a cooperative partner? The question becomes
important when the counsel has to consider ethical rules like confidentiality or identifying conflicts
of interests.

The growth in transnational transactions and cross-border legal practice equally presents some
challenges. This arises when the in-house counsel or lawyer-across-border has to advise or represent
a client from one jurisdiction in another jurisdiction. Because there is no uniform definition of what
constitutes the practice of law in various countries, the lawyer must always overcome the challenge
of identifying which country‘s ethical standard are applicable to each situation.

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Finally, it has been noted that practicing with integrity in an in-house position comes with particular
challenges. According to Paul D. Paton in the article, Corporate Counsel as Corporate Conscience:
Ethics and Integrity in the Post-Enron Era, a lawyer in private practice with multiple clients can
afford to refuse a client‘s suggestions or instructions, and then withdraw. However, for an in-house
counsel, ―{t}elling senior officers ‗no‘ to their proposed plans and schemes may be the right legal
and ethical answer, but it can bring a particularly high price, especially if the lawyer finds that he or
she has to exercise the ultimate professional recourse and withdraw from representation. Losing a
major client in a law firm can have significant consequences, to be sure; but withdrawing from your
one client as an in-house lawyer equates to a loss of status, income and employment, raising the
ethical stakes for in-house practitioners that much further‖.

c) Canadian Response to Ethics of In-House Counsel

1) Professional regulators – in response to calls for in-house counsel to assume more ethical
responsibilities, provincial law bodies amended their rules of professional conducts, (for
example, Ontario in 2004) to address the concerns about the ethics of lawyers advising
corporations. The language of the Ontario amendments was adopted and incorporated into
the Model Code, as set out in Rules 3.2-3, 3.2-8 (a) to (c) and 3.3-4 as well as all their
relevant commentaries.

2) Securities Regulators – since matters concerning securities are under provincial powers, each
province also enacted rules that give more oversight powers to the regulators. For example,
the Ontario Securities Act enlarged the powers given to the Ontario Securities Commission
(OSC) to exercise jurisdiction over the practices of lawyers in relation to the OSC‘s
regulations. This power, though, has been questioned as encroaching on the regulatory
authority of the Law Society.

WILDER V. ONTARIO SECURITIES COMMISSION (2001)

The lawyer acting for a corporate client was alleged to have presented misleading or untrue
statement of facts in a letter to the OSC on behalf of the client, and was then subject to the
reprimand of OSC. One of the issues before the court was whether OSC had jurisdiction to
reprimand lawyers for their conduct as solicitors before the OSC.

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 The court decided that Canadian lawyers are not immune from scrutiny and discipline by
regulatory bodies other than their law society, but the OSC cannot subject the lawyer to reprimand
if the hearing will involve a breach of the solicitor-client privilege.

In furtherance of its regulatory authority, the OSC in 2016 introduced a whistle-blowing policy
with a reward of up to $5 million to encourage certain individuals, including in-house lawyers,
to report serious securities or derivatives-related misconduct. The policy excludes disclosure
that would violate solicitor-client privilege but explicitly include disclosure that would violate a
lawyer‘s ethical duty of client confidentiality in certain circumstances.

3) Canadian jurisprudence still attaches privilege to communications between an in-house counsel

and its organizational client. This is not the situation in Europe where an in-house counsel is
regarded as too economically dependent on the employer and has too much of close ties with it
to possess the prerequisite for privilege. Therefore, communications between the in-house
counsel and its organizational client are not regarded as privileged in Europe.

4) The Canadian Bar Association and Canadian Corporate Counsel Association jointly worked on
a project to provide guidance for lawyers working as in-house counsel in 2012. The guidance
contained contain frequently asked questions about privilege and confidentiality for in-house
counsel and strategies to protect solicitor-client privilege.

d) Lawyers as Corporate Secretaries

The modern trend is to employ persons with legal training as corporate secretaries and compliance
officers, whose job descriptions may include a fusion of legal and secretarial duties. The challenges
posed by this situation are as follows:

1. It‘s difficult most times to determine whether this individual is functioning as a lawyer or is
seen by the board to perform the job of a lawyer, rather than just another management
employee.

2. Many provincial rules define the practice of law in such an expansive way that it includes
functions performed by corporate secretaries, except expressly excluded.

3. The overlapping function may have significant implications for ethical issues like privilege,
and also in professional liability insurance which does not cover lawyers when they are not
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engaging in the practice of law. This may then expose corporate secretaries to claims for
negligence or breach of fiduciary duties for the acts done as officers of the corporation. In
Potash Corp. of Saskatchewan v. Barton (2002), the court noted that ―when corporate
counsel works in some other capacity, such as an executive or board secretary, information is
not acquired in the course of the solicitor/client relationship and no privilege attaches‖.

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 SECTION D

ACCESS TO JUSTICE

This final part of the course looks at the delivery of legal services.

Students should specifically consider various access problems, potential remedies and the role of
lawyers and the profession with regard to issues of access to legal services in particular, and access
to justice more generally.

Issues to Consider:
a) What is meant by ‗access to justice‘?

b) What are legal needs?

c) Is there a current access to justice crisis? What does that mean?

d) Who should be responsible for providing access to justice? What is the role of lawyers?

The profession?

e) What are some concrete options for addressing issues of access to justice?

f) Legal fees, pro bono, paralegals.

Model Code, Preface; Chapter 3, Rule 3.1 and Commentaries; Chapter 5, Rule 5.6-1 and Commentary;
Chapter 7, Rule 7.6 and Commentaries.

a) What is Meant By ―Access to Justice‖

Access to justice basically refers to ways of overcoming the barriers or restrictions people face when
trying to access justice. According to Mary Anne Noone:

Access to justice may be restricted because of geographical factors; institutional

limitations; racial, class and gender biases; cultural differences as well as economic
factors. The way legal services are delivered by the legal profession, the nature of court
proceedings, including procedural requirements and the language used, are also barriers
limiting people‘s opportunity to obtain justice.

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While arguing that access to justice is a democratic issue, the Chief Justice of Canada, Rt. Hon.
Wagner, had contended that ―If you don't make sure there is access to justice, it can create serious
problems for democracy‖. In his speech, Access to Justice: A Societal Imperative, he explained thus:

―Access to justice‖ can mean many things. Having the financial ability to get legal
assistance when you need it. Being informed of your right to counsel when your liberty
is at stake. Having courts that can resolve your problem on time. But it also means
knowing what tools and services are available, and how to get to them. It means
knowing your rights and knowing how our legal systems work. It can even mean seeing
people like yourself represented in all parts of the legal system. And it means having
confidence that the system will come to a just result – knowing you can respect it, and
accept it, even if you don‘t agree with it. Ultimately, it is about getting good justice for
everyone, not perfect justice for a lucky few. It‘s a democratic issue. It‘s a human rights
issue. It‘s even an economic issue.

Unfortunately, lawyers generally tend to view the demand for access to justice as that defined
wholly by the people‘s desire to have legal problems addressed by formal legal processes. However,
for some researchers, these legal problems should instead be viewed as justiciable problems, if we
are to really appreciate the public‘s demand for access to justice. The reason is because people do
not always express their everyday problems as legal claims that are eligible to bring to law. In this
sense, justiciable problems are everyday happenings and circumstances that raise legal issues but
which people never think of as legal, and may therefore not take any legal action over it.

b. What are Legal Needs?

Legal needs generally arise when citizens require support from legal services in order to resolve
problems which have a legal dimension. This is because legal issues are often embedded in other
problems arising from many areas of life like housing, employment, education, health, etc. These are
clothed as legal needs and the nature of these problems makes it very important to address them as
early as possible by providing timely access to a fair and effective justice system and access to
information, resources and informal service to support the underserved individuals and groups.

When we ask questions about the nature of legal needs, it enables us to understand what patterns of
problems are both frequent and intense, and require support from across the population and among
the different groups. When people are faced with legal problems, where do they turn for advice,
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support and solutions? Such questions help to understand the problems of access to justice and to
inform about the best strategies to improve it.

Access to justice is regarded as a basic right of economic citizenship, but there are fears that unmet
legal needs in Canada‘s justice system are reaching a crisis. Several national and regional studies
have been undertaken to understand the nature of justiciable problems of Canadians. One of these is
the 2014 national survey by the Canadian Forum on Civil Justice (CFCJ). More details about the
outcome of this survey is discussed in section (c) below. But the takeaway from this survey
establishes that a significant number of people experience legal problems that they find difficult to
resolve. Many of these people do not even obtain the appropriate needed assistance and this further
results in undesirable consequences.

According to the Access to Legal Services under the National Initiatives of the Federation of Law
Societies of Canada at https://flsc.ca/national-initiatives/access-to-legal-services/,

Canadians have the right to expect that when they have a legal problem or find
themselves before the Courts, they should be able to obtain professional legal
services to help them navigate the complex system of laws and procedures. It is
recognized that barriers to access to legal services exist for far too many people.

Increasing access to legal services is a complex problem that involves many

institutions that are involved in the administration of justice including the Courts,
governments, the legal profession, and law societies.

In Canada, the traditional definition of access to justice was narrowed to access to lawyers and
redress through the courts. Thus, the early justice system reforms basically focused on ensuring
equal access to lawyers and the courts through the provision of legal aid and community legal
centres (CLCs).

However, a better realization of the legal needs of the citizens have led to more substantial and
dedicated attention towards meeting those needs. To this end, subsequent reforms have expanded to
areas like correcting the inadequacies within the court and legal aid systems, demystifying the law
through the use of plain language, public legal information and education, enhancing preventative
law through alternative dispute resolution mechanisms, and increasing public participation in law
reforms.

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 c. Is There Current Access to Justice Crisis? What Does That Mean?

The problem of access to justice in Canada has been described as an acute one, with an estimated
3.8 million people per year having at least one legal problem, while majority of them are not able to
resolve their problems fairly, effectively or affordably. Typically affected individuals, communities
and groups experience some forms of social exclusion and this further makes them to be more
vulnerable. These include indigenous people, refugees and other new Canadians, visible minority,
people with status including country of birth, age, disability, employment and level of education.

The number of self-represented litigants in both civil and criminal matters is becoming increasingly
alarming, while the outcomes continue to be unsatisfactory for them, compared to those who have
lawyers. Meanwhile, the threshold for access to legal aid means only those facing acute financial
need can meet the criteria for the state-sponsored legal assistance.

A 2014 national survey in Canada by the Canadian Forum on Civil Justice revealed the magnitude
of the crisis and how widespread the problem of access to justice is. It shows that within any 3-year
period, 48% of adult Canadians will experience at least one justiciable problem that they consider
serious and difficult to resolve. 42% of these will face three or more justiciable problems within the
same period.

The survey also revealed that of the number who experience justiciable problems:

- 5% took no action

- 19% obtained advice from a lawyer

- 28% obtained non-lawyer assistance, e.g., from a union or an advocacy group

- 33% searched online for relevant information by themselves

- 61% obtained some advice from friends and relatives.

This confirms that access to justice does not exclusively relate to access to the legal profession but
to all the other avenues people normally take to resolve their problems.

From the survey analysis above comes the question: why is it that it‘s only a few people (compared
to the number that experience problems) that actually seek legal advice from a qualified legal
service provider? The answers may include the following:

1. Affordability – this seems to be the first important point. There is obviously a major gap
between the monetary costs of legal services and what the vast majority of Canadians can
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 afford, and therefore, many people cannot afford to hire a lawyer. The reasons for this
include the lack of legal aid, the hourly rates of lawyers and aggregate costs of many legal
proceedings, and the length of proceedings for a range of services.

It has been suggested that those in the middle and lower middle-income positions may suffer
the negative effects of high legal fees most. This is because higher income individuals can
afford to pay a lawyer out of pocket while those on the very lowest incomes may qualify for
legal aid in a limited number of matters.

2. Absence of legal aid – while a considerable number of people cannot afford the high cost of
hiring a lawyer, a similar considerable number of low and middle-income people are also
refused or do not qualify for legal aid.

3. Perceptions and beliefs – which include the following:

a. that people only regard their everyday problems as ―legal‖ in a very narrow sense,
hence they believe they do not need formal legal advice or adjudication for the
majority of their justiciable problems.

b. and even when they characterize their problems as legal, many people still believe
they can seek advice from other sources.

c. because they believe in the do-it-yourself social attitude, especially in the family law
context.

d. some self-represented litigants believe that having a lawyer may not result in a better
outcome.

4. The complex and often-confusing structure of the justice system, not only in the civil and
criminal justice system but also of modern administrative systems of many boards and
tribunals the organization of which does not offer the users the cost-effective means of
meeting their legal needs.

5. The spatial and geographical barriers especially for people living in rural and remote regions
with small and dwindling numbers of lawyers and other legal advice service providers.

6. Legal consciousness.

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d. Who Should Be Responsible For Providing Access to Justice? What is the Role of
Lawyers? The Profession?

The importance of this question is emphasized when we realize that constitutional distribution of
powers provides for co-existent jurisdictions over the courts among the federal, provincial and
territorial governments. The dilemma is further pronounced by the fact that there are other players in
the justice system, including lawyers and the provincial law societies.

So, who has the obligations to address access to justice?

The question here is who has the constitutional obligations to address and foster access to justice in
Canada? The following cases supply the answers on how constitutional obligations binding on states
might or might not be engaged and enforced by the courts.

 BRITISH COLUMBIA (ATTORNEY GENERAL) V. CHRISTIE (2007)

BC law imposed a 7 per cent tax on the purchase price of legal services ostensibly to fund legal aid in
the province. C, a litigation lawyer, challenged the constitutionality of the legal service tax, claiming
that the net effect of the tax was to make it impossible for some of his low-income clients to retain
him to pursue their claims. The chambers judge found that the tax breached a fundamental
constitutional right of access to justice for low-income persons and declared it unconstitutional to that
extent. The majority of the Court of Appeal upheld the decision.

The SCC overturned those decisions and held that the impugned provincial legislation is
constitutional. The court held that:

1. While the text of the Constitution, the jurisprudence and the historical understanding of the rule
of law do not foreclose the possibility that a right to counsel may be recognized in specific and
varied situations, they do not support the conclusion that there is a general constitutional right to
counsel in proceedings before courts and tribunals dealing with rights and obligations.

2. The right to access the courts is not absolute and a legislature has the power under s. 92(14) of
the Constitution Act, 1867 to impose at least some conditions on how and when people have a
right to access the courts.

3. If the reference to the rule of law implied the right to counsel in relation to all proceedings where
rights and obligations are at stake, then s. 10 of the Charter which provides for a right to retain
and instruct counsel and to be informed of that right ―on arrest or detention‖, would be
redundant.

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 4. The fact that s. 10(b) does not exclude a finding of a constitutional right to legal assistance in
other situations, notably under s. 7 of the Charter does not support a general right to legal
assistance whenever a matter of rights and obligations is before a court or tribunal.

5. The right to counsel outside the s. 10(b) of the Charter context is a case-specific multi-factored
enquiry.

 TRIAL LAWYERS ASSOCIATION OF BC v. BC (ATTORNEY GENERAL)

(2014)
BC enacted regulations establishing graduated court hearing fees, with some exemptions for indigent
persons. V in a custody dispute claimed she could not afford the hearing fee. Issues were (1) whether
the province can establish hearing fee scheme, and (2) whether the regulations imposing hearing fees
which deny some people access to courts infringe on the powers of superior courts.

The SCC held as follows:

1. The province has the jurisdiction to levy fees in exercise of its jurisdiction under s. 92(14) of the
Constitution Act, 1867. However, the exercise of that power is not unlimited.

2. Since the core task of superior courts under s. 96 of the Constitution Act is to resolve disputes
between people and decide questions of private and public law, any measure that prevents
people from coming to the courts to have issues resolved erodes on the basic functions of the
court.

3. Therefore, hearing fees that deny people access to the courts infringe the core jurisdiction of the
superior courts and impermissibly impinge on s. 96 of the Constitution Act, 1867.

In R. v. Moodie (2016) the applicant was denied legal aid because his income fell outside the threshold. The
court noted that the financial circumstances of the accused would not permit him to raise fund to pay a
lawyer; and since the case in question is a complex one involving jury challenge for cause and will take
minimum of 5 to 7 trial days, it was necessary to provide him with state-funded counsel.

Who Should Pay: Clients, Their Lawyers and/or the Society?

It is taken for granted that, save in cases of pro bono legal services, payment should be made in
return for the lawyer‘s services; this is a fundamental part of the retainer agreement. But when the
question deals with who should pay for these legal services, it is an indirect query about access to

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justice. In other words, the question may be framed thus: who should provide access to justice: the
clients, their lawyers, and/or the society?

Lawyers and Access to Justice

The starting point here is Rule 4.1-1 which mandates lawyers to make legal services available to the
public efficiently and conveniently and, subject to Rule 4.1-2, a lawyer may offer legal services to a
prospective client by any means. Commentary [2] to this Rule explains this further in the following
language:

[2] As a matter of access to justice, it is in keeping with the best traditions of the
legal profession to provide services pro bono and to reduce or waive a fee when
there is hardship or poverty or the client or prospective client would otherwise be
deprived of adequate legal advice or representation. The Law Society encourages
lawyers to provide public interest legal services and to support organizations that
provide services to persons of limited means.

Secondly, the courts have made some progress in establishing that the state has obligations to ensure
accessible justice systems but it is still in contention whether lawyers or the legal profession should
equally have such an obligation. Of course, the law societies, law schools and lawyers‘ associations
have recently stepped up activities that will help in bringing lawyers‘ services within the reach of
more people, addressing in part the problem of bridging access to justice.

Those who believe lawyers should play more active roles in ensuring access to justice have hinged
their arguments on the following reasons:

1. That since the obligation of law societies is to promote the public interest in the delivery of
legal services, then it follows that those who practice law must also be guided by this public
interest. Their vocation is service to the public through the practice of law.

2. Statutory provisions in each province give law societies the exclusive power to regulate entry
into the practice of law and thereby the power to establish a monopoly to provide legal
services. This therefore places lawyers in the position of special responsibility which is akin
to that of ‗trusteeship‘, an agency which is created to market legal services on behalf of the
political community for the benefit of the citizenry.

3. Because the market for legal services is not fully competitive, it creates the incentives for
lawyers to charge unjustifiably high fees that ultimately restrict access to justice.
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e. What are Some Concrete Options for Addressing Issues of Access to Justice?

We shall first look at the example of the United Kingdom in terms of the problems of access to
justice and the proffered solutions. The UK, reputed to be the world‘s second largest legal market
after US, faced many challenges with access to justice. These included widespread consumer
dissatisfaction with lawyers, lack of competition, and a self-regulated industry that favoured
monopoly. The government then instituted a two-year independent review of the legal industry,
headed by Sir David Clementi, a banker and CEO of an insurance conglomerate. The report of this
review gave birth to the Legal Services Act of 2007 (LSA) which did away with self-regulation of
UK‘s legal industry. In its place, the LSA created the Solicitors Regulation Authority (SRA) to
oversee the business side of the legal industry while the regulation of practice matters was left to the
Law Society. The SRA in its re-regulation created alternative business structures (ABS) which
abolished the traditional prohibition of non-lawyers from owning or investing in law firms. This
created the avenue for, e.g., large stores to provide legal services to consumers and thus created
alternative delivery options. The ABS model has also been in operation in Australia.

In Canada, the problem of access to justice was also recognised as very prevalent. To proffer
possible solutions in part, therefore, an Action Committee on Access to Justice in Civil and Family
Matters was established by the Chief Justice of the Supreme Court of Canada, with membership
drawn from actors in civil and family justice system. In 2013, this Committee published its
―roadmap for change‖ which provided a wide range of potential reform objectives to address
everyday legal problems including access to essential legal services and the role of courts and
tribunals as far as civil and family matters are concerned.

Highlights of this roadmap as it relates to access to justice are as follows:

1. Refocusing the justice system to reflect and address everyday legal problems by 2018. This
would be achieved in the following manners:

a. Given that only 6.5% of everyday legal problems eventually get to reach the formal
justice system, the justice system should widen its focus from the current court-based
dispute resolution method to include education and prevention. This shift in focus will
help most people in the most efficient, effective and just way at the earliest point in the
process. The Committee suggested that the motto might be: ―court if necessary, but not
necessarily court‖.

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 b. That a robust ―front end‖ Early Resolution Services Sector (ERSS) should be built to
provide accessible justice services at a time and place at which most everyday legal
problems occur.

c. The ERSS should improve accessibility and coordination of public legal information
resources through development of sector or national information portal, authoritative
online information hubs, 81 virtual self-help information services, a complaints process,
etc.

d. Justice services must be redesigned to reflect the culturally and geographically diverse
population of Canada. To this end, focus must be had on the needs of marginalized
groups. Access to justice barriers must be recognised and identified and steps taken to
eliminate them. These barriers include language, financial status, mental health capacity,
geographical remoteness, gender, class, religion, sexual orientation, immigration status,
culture and aboriginal status.

2. That essential legal services should be made available to everyone by 2018, by:

a. Modernizing and expanding the legal services sector by specific innovations and
improvements in the following areas: limited scope retainers, alternative business
models, increased opportunities for paralegals, alternative billing models, legal expense
insurance, pro bono and low bono services, promoting justice services to rural and
remote communities, etc.

b. Increasing availability of legal aid services for civil and family legal problems.

c. Making access to justice more than just a vague, aspirational principle but featuring it
prominently in law school curricula, bar admission and continuing education programs,
codes of conduct, etc.

3. Make the courts and tribunals fully accessible, multi-service centres for public dispute
resolution by 2019. This would be achieved by:

a. Making the courts and tribunals more accessible to more people, making them reflect the
society they serve, and reforming them significantly with the user centrally in mind.

b. Making courts and tribunals offer a range of dispute resolution services – negotiation,
conciliation and mediation, judicial dispute resolution, mini-trials, etc., all in the spirit of

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 the ―multi-door courthouse‖. Similarly, online dispute resolution options should be
enhanced, copying from online merchants like eBay.

c. Providing appropriate and accessible services for self-represented litigants, in the form
of training for courts and tribunals staff to assist these self-represented litigants to meet
their dispute resolution needs and also by integrating with the ERSS information and
service providers. Civil and family duty counsel and pro bono programs should also be
expanded.

d. Timely, and often early, judicial case management should be promoted and available in
all appropriate cases.

e. Simplification of court and tribunal processes to make them more accessible and user
friendly. Technology in all courts and tribunals must be modernised to reflect the
electronic needs of a modern society, with interactive court forms, ability to generate
real time court orders, online accessibility of court documents, wide availability of
tele/video/internet-based conferencing for all appearances, etc.

f. Judicial independence and ethical responsibilities must be complemented and reinforced

by all the above innovations.

However, in spite of the fact that the roadmap identified various disadvantaged groups, it has been
criticized by some as presenting generic solutions as options for everyone who cannot afford legal
representation and not entitled to legal aid. The same generic solutions were also proffered to
increase the efficiency and effectiveness of the system. These solutions are said to gloss over the
significant differences among excluded people. And therefore, the failure to take more specific but
common traits into account when designing and implanting the access to justice changes will create
an underclass of people still excluded from the legal system.

To further address the problem of access to justice, some of the following innovations have also
been designed:

1. Legal Aid
According to the Department of Justice, ―{t}he Legal Aid Program promotes fair legal proceedings
and helps to ensure access to justice for economically disadvantaged persons accused of serious
and/or complex criminal offences and facing the likelihood of incarceration, and for youths charged
under the Youth Criminal Justice Act, wherever they live in Canada. The Legal Aid Program also
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helps to ensure that Canada is able to cost-effectively meet its criminal legal aid responsibilities in
federal prosecutions, such as under the Controlled Drugs and Substances Act and in Public Security
and Anti-terrorism cases, as well as its responsibilities for immigration and refugee legal aid and the
management of Court-Ordered Counsel in Federal Prosecutions.‖

Legal aid in Canada is implemented as a cost-sharing program between the federal government and
those of the provinces/territories.

The principal objective of legal aid is to promote access to justice for the economically
disadvantaged group. It also helps to ensure a fair, relevant and accessible justice system which
ultimately ensures that public confidence in the justice system is maintained.

In addition to delivering criminal legal aid and immigration and refugee legal aid, the legal aid
program in Canada equally manages the State-funded counsel cases on behalf of the federal
government. Here, it may happen that an accused person is unrepresented and unable to obtain legal
aid for a number of reasons, including non-eligibility. If the charges against him are serious or
complex, the court may order a stay of proceedings until the prosecuting Crown provides state-
funded legal representation to the accused person. See the case of R. V. Moodie (2016) at page 161
above.

2. Community Clinics
Community legal clinics (CLC) are created basically to provide information, advice and legal
representations in a variety of legal issues including social assistance, housing, refugee and
immigration law, employment law, human rights, workers' compensation, consumer law, etc. Each
CLC serves a large area around its location and has a specific number of issues it can handle. Some
are known as specialty clinics because they deal with specific areas of law or represent specific
individuals, e.g., seniors, people living with HIV/AIDS, or victims of domestic violence.

Funding for CLC comes in several ways. For example, CLCs in Ontario who have permits under the
Legal Aid Services Act receive funding under the Legal Aid Ontario overall budget. These may be
supplemented with donations. Of course, services of community clinics are provided free of charge
or at low cost. They include providing:

 Free consultation and information

 Information and services to help users prepare for their cases

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  Full representation by a clinic advocate (who may be a lawyer, community legal worker or
law student)

 Referral to a private practitioner, duty counsel or community agency

 Public legal education and information

Ultimately, the purpose of the existence of community legal clinics is to bridge the gap in the
provision of legal services and ensure access to justice. However, access to these services may be
determined by many factors, some of which are:

- That the legal issue must be one that the clinic can handle

- The user must live in the area the clinic serves, and

- The user‘s income and assets must be within a certain level.

3. Insurance and Pre-Paid Legal Regimes

Many citizens are used to the health, car or home insurance plans in which the subscriber pays a
monthly or annual premium in exchange for coverage in times of medical needs or car accidents or
damage to home. Pre-paid legal services operate in similar manners.

Under the pre-paid legal regime, the client makes the agreed monthly payment in return for the
provision of legal services when needed for personal or business purposes. Please note that pre-paid
legal service is not legal insurance.

The largest pre-paid legal service provider in Canada is LegalShield which currently provides legal
services to over 2 million families across US and Canada. There are a range of member plans from
$23 per month for individuals and $26 per month for families. Others include business plans for
small businesses. The category of plan subscribed will determine the range of legal services that will
be available to the user.

Legal services are delivered through a network of screened and selected independent law firms. A
subscriber will simply call his/her provider law firm directly on their membership card when he/she
has a legal question or problem.

On the other hand, legal protection insurance (LPI), also known as legal expenses insurance (LEI) or
simply legal insurance, is a particular class of insurance which facilitates access to law and justice

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by providing legal advice and covering legal costs of a dispute, regardless of whether the case is
brought by or against the policyholder. The premium is usually paid annually.

Legal protection insurers cover the costs (e.g. legal fees and expenses of a lawyer) incurred in case
of an unforeseen legal matter. These costs usually include lawyer and court fees, witness expenses,
translation costs or expert fees. Depending on national law, legal protection insurers also provide
legal services and represent policyholders out-of-court or in-court. The policyholder is usually
protected for disputes in several areas of law such as family law, labour dispute, contract,
employment, etc.

4. Contingency Fees
A contingent fee is defined as the fee charged for a lawyer's services but is payable only if a lawsuit
is successful or if it results in a favourable settlement. The fee payable to the lawyer is then
calculated usually in the form of a percentage of the amount recovered on behalf of the client. This
is also known as conditional fee in England and Wales. In Canada, they are commonly called
'contingency fees', 'no win no fees' or 'speculative fees'.

The basic idea behind contingency fee is that it may make it easier for people of limited means to
pursue their civil rights since otherwise, to sue someone for a tort, the claimant must be wealthy
enough to pursue such litigation to a successful conclusion, given its associated cost. Therefore, due
to the risk of loss, lawyers will not take cases on a contingency basis unless they believe that the
case has merit, although accepting cases on a contingency is not without risk.

The percentage allowable as a contingency fee is subject to the ethical rules of professional conduct
that require legal fees to be reasonable and, in some circumstances, by statutory limitations.

Contingency fee arrangements are generally allowed all over Canada but strictly regulated in places
like Ontario.

5. Class Actions
A class action is a civil lawsuit brought by one or more representative plaintiffs on behalf of a larger
group of persons (the class members). A class action attempts to have common or similar claims
resolved in a single proceeding with the result binding upon all class members and opposing parties.

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Class action lawsuits are typically based on allegations of defective products, false advertising,
discrimination, unlawful employment practices, or other causes. A lawyer files a class action lawsuit
on behalf of one or more parties, then a judge will agree that the case should proceed as a class
action and certify it as such. Individuals that remain a party in the case are bound by the judgment or
settlement and prohibited from taking any further action.

In Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, the Supreme Court of
Canada held that class proceedings are intended to further three goals: judicial economy; access to
justice; and behaviour modification. These goals are meant to inform judicial decision-making.

According to Matthew Good in Access To Justice, Judicial Economy, And Behaviour Modification:
Exploring The Goals Of Canadian Class Actions,

Access to justice has been described as the ―most important objective‖ of class
proceedings legislation. It is, however, a concept defined by economic
considerations. The ―high cost of litigation …[is] a substantial barrier to redress‖
and, therefore, the impetus for class action legislation. Access to justice in class
proceedings is the pursuit of claims otherwise too small to justify the expense,
because the costs deter individual claimants.

f) Legal Fees, Pro Bono, Paralegals

Affordability of legal fees appears to be the most important factor in discussions about access to
justice. As noted at page 158 above, there is a huge gap between the cost of legal services and what
Canadians can afford. And this has always been so. According to Rt. Hon. Wagner, the Chief Justice
of Canada in his speech, Access to Justice: A Societal Imperative,

People sometimes talk about access to justice as if there were a golden age when
everyone could afford a lawyer, and everyone could go to court to solve their
problems quickly and painlessly. I can tell you this was never the case. We have always
faced challenges. Lawyers’ fees have always been expensive, court dockets have
always been crowded, and procedures have always been slower than we’d like. We
didn’t even have legal aid programs in all provinces and territories until the mid-1970s

The Chief Justice continued:

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 Well, the first barrier is obvious, and perhaps the top concern of many people in this
room: cost. Legal services are expensive. They are just out of reach for many
Canadians.

In British Columbia, a single person making minimum wage will not qualify for legal
aid if they are working full-time. The situation is the same in other provinces. Most
people affected by lack of legal aid are women, people with disabilities, recent
immigrants, members of racialized communities, and Indigenous peoples, who are
overrepresented at lower income levels. Government spending on civil legal aid has
fallen in Canada, from $11.37 per person in 1994 down to $8.96 in 2012. Spending in
other areas (like health and education) has risen.

While we often see affordability as an issue for low-income households, middle-income

earners, who make too much money to qualify for legal aid, also suffer. Some decide
not to seek legal remedies or fight criminal charges because of cost. Others have no
choice but to represent themselves because they can‘t afford counsel. Average legal fees
for a two-day civil trial in Canada were $31,330 in 2015, which is out of reach for
many. In fact, I think many lawyers wouldn‘t be able to afford their own services. The
problem is especially acute in family law, where more than half of litigants come to
court without a lawyer. In criminal law, while it is rare for persons accused of very
serious charges to represent themselves due to lack of funding, legal aid frequently will
not cover minor criminal offences, even though these can still affect a person‘s life and
livelihood.

The numbers of self-represented litigants are not going down. They file about a third of
leave applications at the Supreme Court. The average number of these applications that
are granted in a given year is zero, since only one or two are granted every five or so
years. Dealing with ―self-reps‖ imposes heavy burdens on judges, court officials, and
opposing counsel. This leads to frustration and contributes to a second barrier, delay.

Pro Bono Obligations

Given the above situations, there have been debates as to whether lawyers should be required to
offer pro bono services or to reduce the cost of their services in some other ways. For example,
David Johnston, Canada‘s then Governor General suggested to Canadian lawyers in 2011 that they
should devote 10 per cent of their time to pro bono causes as part of their professional
responsibility. That was at the time when the figure was about 3 per cent.

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But some jurisdictions in the US have made pro bono services a compulsory part of the licensing
process. For example, the State of New York became the first when in 2012, it demanded the
completion of fifty hours of pro bono services as a condition for admission to the state bar. The
question has been whether Canadian law societies should also adopt this requirement.

In addition to this, it has been suggested that some incentives be offered to practitioners to motivate
them to offer pro bono services. One of these is to make the expenses incurred by the practitioner in
performing pro bono services tax deductible.

According to the viewpoint expressed in the extract, The Public Interest, Professionalism, and Pro
Bono Publico, by Lorne Sossin of Osgoode Hall Law School,

From the perspective of the lawyer, the important question is whether there is
ethical motivation to engage in pro bono. If, however, the perspective of the client
is paramount, then meeting the client's needs is the point of pro bono, irrespective
of the lawyer's motivation. Our current approach to pro bono lacks coherence
because we embrace both perspectives but seem unable to provide a satisfying
account of the existing pro bono policies and programs under either view. Despite
this complexity (or, perhaps, because of it, the public interest approach allows both
lawyer and client perspectives to inform an understanding of pro bono publico.
And, understood in a public interest paradigm, pro bono serves a vital and
necessary role in the legal profession and the legal system.

The above notwithstanding, many innovative steps have been put in place to ensure the provision of
pro bono legal services. For example, organizations like the Access Pro Bono Society of British
Columbia stepped in to help fill a need. The Society has brought together lawyers, legal
professionals, and students to provide quality legal services to people and organizations with limited
means, for free.

Paralegals
Lawyers‘ monopoly of the provision of legal services has been one of the most challenging issues in
regulatory reforms on access to justice. The question has continually been whether lawyers should
continue to be the only professionals authorized to provide legal services, even when most members
of the public are not able to afford their charges. This challenge formed the ideals behind allowing
paralegals, notaries and other individuals who are not licensed lawyers to provide limited,
inexpensive legal services to members of the public in those areas of unmet needs. These include in
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matters that is difficult to find a lawyer to provide the legal service because it is uneconomical for
them.

And in order to protect the public interest, many Canadian jurisdictions have taken steps to provide
appropriate oversight over the operations and activities of paralegals and notaries while others are
actively considering those options too.

In Ontario, the Access to Justice Act 2006 requires that paralegals undergo mandatory training,
carry liability insurance, and answer to a public body to investigate complaints. The regulations
came into force on May 1, 2007. By virtue of this law, the Law Society of Ontario put in place
extensive licensing regulations for paralegals which include accredited training programs and
administering licensing examinations to ensure that they possess the minimum competency to be
able to serve members of the public. And even after licensing, paralegals in Ontario are subject to
codes of conduct that regulate their activities in the public interest, similar in nature to those of
lawyers.

Paralegals in Ontario can represent clients in Small Claims Court and administrative tribunals and
offer a limited range of legal services, including representations in traffic offences. In doing so, they
provide an affordable alternative to retaining a lawyer.

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 PROFESSIONAL RESPONSIBILITY NOTE

List of Articles in the Required Text

=======================================================================
All these are some of the articles contained in the relevant Chapters of the required text: Lawyers
Ethics and Professional Regulation, 3rd Edition, by Alice Woolley, et al.
Although I have summarized most of the articles in short sentences in the body of the main Note, I
have now decided to reproduce them here at greater length, by popular demands, for those who are
desirous of reading them. I must warn though that some of the articles are quite lengthy and
voluminous; albeit, I have endeavoured to abridge some of them to include the most important
points only. But I have reproduced others exactly as in the cited textbook
(Citations, footnotes and references in all of the articles omitted)
Manuel Akinshola

181
1) Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers – Tim Dare. … 183

2) The Adversary System Excuse - By David Luban … 183

3) Legal Ethics And The Good Client - By Thomas Shaffer … 193

4) Michelle‘s Story: Creativity And Meaning In Legal Practice - By Alice Woolley … 197

5) Ethics and Canadian Criminal Law - By D. Layton & M. Proulx. … 207

6) Does Civility Matter? - By Alice Woolley … 209

7) Tales Of Terror: Lessons For Lawyers From The 'War On Terrorism‘

- By David Luban … 215

8) The Jurisprudential Turn In Legal Ethics - By Katherine B. Kruse … 217

9) Lawyering At The Intersection Of Public Law And Legal Ethics:

Government Lawyers As Custodians Of The Rule Of Law - By Adam Dodek … 219

10) Professionalism And The Public Interest -

By Malliha Wilson, Taia Wong & Kevin Hills … 224

11) Lawyers Representing Public Government And A Duty Of ‗Fair Dealing‘

- By Brent Cotter … 227

12) Professional Responsibility and the Corporate Lawyer - By Milton C. Regan, Jr. … 231

13) Corporate Counsel As Corporate Conscience: Ethics And Integrity

In The Post-Enron Era - By Paul D. Paton … 235

14) How It Went Off The Rails At GM - By Paul D. Paton … 237

15) Lawyers, Ethics And Enron - By Deborah L. Rhode & Paul D. Paton … 240

16) Corporate Counsel As Corporate Conscience: Ethics And Integrity

In The Post-Enron Era - By Paul D. Paton … 246

17) The Future Of Privilege - By Paul D. Paton … 249

18) Walking On The High Wire - By Paul D. Paton … 252

19) Imperfect Duty: Lawyers‘ Obligation To Foster Access To Justice -

By Alice Woolley … 255

20) The Price Of Law: How The Market For Lawyers Distorts The Justice System -
By Gillin Hadfield … 259

21) Advancing Access To Justice Through Generic Solutions:

The Risk Of Perpetuating Exclusion - By Patricia Hughes … 261

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 Articles in Chapter A1. (Page 9 of the Note)

Topic: Professions and Professionalism: The Profession of Law

and Law as a Profession

 Mere-Zeal, Hyper-Zeal and the Ethical Obligations of

Lawyers
By Tim Dare
According to the ―standard conception‖ of the lawyers, lawyers owe special duties to their clients that allow
and perhaps even require conduct that would otherwise be morally impermissible. But ‗the standard
conception‖ has become an ironic epithet. If numbers count, the standard view now is that it cannot be right.
The conception has passed from methodology to fair game, replaced by a near consensus that it ‗must be
abandoned, to be replaced by a conception that better allows the lawyer to bring his full moral sensibilities to
play in his professional role‘ and that ―{t}he lawyer‘s role carries no moral privileges and immunities‖. Much
of the criticism of the standard conception is directed at the idea that it requires excessive and immoral
advocacy on behalf of clients. ―Every Lawyer‖. David Luban claims, ―knows tricks of the trade that can be
used to do opponents out of their legal deserts‖. Critics of the standard conception claim that it not only
allows, but also requires, them to use such tricks if it is in their client‘ interests to do so.

But I do not think we should abandon the standard conception. This paper offers an alternative reading of the
conception, preceding from a functional analysis of law and drawing a distinction between ―mere-zeal‖ and
―hyper-zeal‖. In an attempt to show both that the conception is essentially the right way to conceive of the
ethical obligations of lawyers and how it is able to avoid the complaint that it requires excessive advocacy. In
defense of a moderate version of the conception, I attempt to show that the conception requires and allows
only mere and not hyper-zeal….

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

 The Adversary System Excuse

By David Luban
Summary
The writer argues that it is not the lawyer's responsibility to believe or not to believe. The lawyer is
only a technician and law is an adversarial profession. The other side is out to get your client. Your

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job is to protect your client. He says if young people listen to the ethics courses they hand out in the
law schools, then there isn't going to be such a thing as an intelligent defense in a civil or criminal
case.

A conscience … put out to lease is not conscience but the evasion of it, except for that specious
semblance of conscience which may be discerned in one's blind obedience to the authority that
happens to be in command.

[Luban sets out the ―standard conception of the lawyer‘s role‖, namely, that a lawyer must be a partisan
advocate for his client‘s ends and that the lawyer has no moral accountability for those ends. Luban argues
that most justification for the standard conception arise from the adversary system or, expressed more
broadly, from the role lawyers ply within the justice system as a whole. In this excerpt, Luban challenges the
traditional justifications given for the lawyer‘s and argues that while that role may legitimately influence a
lawyer‘s moral decisions, it cannot do so absolutely. The lawyer retains responsibility for her moral choices,
whether made on behalf of a client or not.]

V. Consequential Justifications of the Adversary System

A. Truth

The question whether the adversary system is, all in all, the best way of uncovering the facts of a case at bar
sounds like an empirical question that has scarcely been investigated, and that is most likely impossible to
answer. This last is because one does not, after a trial is over, find the parties coming forth to make a clean
breast of it and enlighten the world about what really happened. A trial is not a quiz show with the right
answer waiting in a sealed envelope. We can‘t learn directly whether the facts are really as the trier
determined them because we don‘t ever find out the facts.

The kind of empirical research that can be done, then, is laboratory simulations: social psychology
experiments intended to model the adversary proceeding. Obviously, there are inherent limitations on how
closely such experiments can correspond to actual trials, no matter how skilfully they are done…. Even so,
the results are constructive: they show that in some situations the adversary system works better while in
others the inquisitorial system does, and furthermore, that the participants cannot tell which situation they are
in. this would hardly surprise us: it would be much more astounding to discover a greater difference in
veracity between the Anglo-American and Continental systems, for surely such a difference would after so
many centuries have become a commonplace in our folklore.

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Given all this, it is unsurprising to discover that the arguments purporting to show the advantages of the
adversary system as a fact-finder have mostly been non-empirical, a mix of a priori theories of inquiry and
armchair psychology.

Here is one, based on the idea, very similar to Sir Karl Popper‘s theory of scientific rationality, that the way
to get at the truth is a wholehearted dialectic of assertion and refutation. If each side attempts to prove its
case, with the other trying as energetically as possible to assault the steps of the proof, it is more likely that all
of the aspects of the situation will be presented to the fact-finder than if it attempts to investigate for itself
with the help of the lawyers.

This theory is open to a number of objections. First of all, the analogy to Popperian scientific rationality is not
a good one. Perhaps science proceeds by advocating conjectures and then trying to refute them, but it does
not proceed by advancing conjectures that the scientist believes to be false and then using procedural rules to
exclude probative evidence.

The two adversary attorneys are each under an obligation to present the facts in the manner most consistent
with their client‘s position to prevent the introduction of unfavourable evidence, to undermine the credibility
of opposing witnesses, to set unfavourable facts in a context in which their importance is minimized, to
attempt to provoke inferences in their client‘s favour. The assumption is that two such accounts will cancel
out, leaving the truth of the matter. But there is no earthly reason to think this is so; they may simply pile up
the confusion.

This is particularly likely in cases turning on someone‘s sanity or state of mind. Out comes the parade of
psychiatrists, what Hannah Arendt once called ―the comedy of the should-experts.‖ Needless to say, they
have been prepared by the lawyers, sometimes without knowing it. A clinical law teacher explained to a class
that when you first contact a psychiatrist and sketch the facts of the case, you mention only the favourable
ones. That way, he or she has an initial bias in your favour and tends to discount the unfavourable facts when
you finally get around to mentioning them.

The other side, of course, can cross-examine such a witness to get the truth out. Irving Younger, in his time
the most popular lecturer on trial tactics in the country, tells how. Among his famous ―Ten Commandments
of Cross-Examination‖ are these:

 Never ask anything but a leading question.

 Never ask a question to which you don‘t already know the answer.
 Never permit the witness to explain his or her answers.
 Don‘t bring out your conclusions in the cross-examination. Save them for closing arguments when
the witness is in no position to refute them.

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Of course, the opposition may be prepared for this. They may know, therefore, that the cross-examiner is
saving his or her conclusions for the closing argument. Not to worry! Younger knows how to stop an attorney
from distorting the truth in closing arguments. ―If the opposing lawyer is holding the jury spellbound…the
spell must be broken at all cost. [Younger] suggests the attorney leap to his or her feet and make furious and
spurious objections. They will be overruled, but they might at least break the opposing counsel‘s
concentration.‖

My guess is that this is not quite what Sir Karl Popper had in mind when he wrote, ―The Western rationalist
tradition…is the tradition of critical discussion – of examining and testing propositions or theories by
attempting to refute them.‖

There is, however, one legal context in which the Popperian defense of the adversary system approximates
reality and in which the adversary system is indeed strongly justified. When lawyers debate purely legal
questions – particularly in appellate argument, where boot sides work from a fixed record and no new
evidence can be introduced – we find the kind of give and take that critical rationalists favour. It makes sense
to assign each advocate the task of arguing one side‘s interpretation of the law as forcefully as possible, and
doing everything possible to undermine the adversary‘s arguments. With no fats to hide and everything out in
the open, only the arguments and counterarguments remain. Judges invariably attest that the better the
advocates arguing before them, the better decisions they make. Adversary advocacy helps ensure that no
arguments or objections get overlooked.

Now, the same thing will often be true when lawyers argue over the interpretation of evidence in a trial of
facts. So it may appear that my defence of the adversary system of arguing questions of law proves too much,
and provides a defense for adversary arguments about facts as well. To the extent that the lawyers are arguing
the interpretation of evidence in the record, that is true. But the problems with the adversary system I have
highlighted lie in the fact that trial lawyers view one of their main jobs as keeping damaging information out
of the record, or – as in Younger‘s recommendation that lawyers disrupt their adversaries‘ closing arguments
– clouding the decision-making process. Consider, for example, complaints by the president of a lawyers‘
organization about a recent American innovation in which jurors are permitted to question witnesses directly.
―You work very hard to keep certain information out of the trial. Then all of your finesse and art and
technique are thrown out the window when a juror comes in and asks, ‗Where were you on the night in
question?‘‖ It‘s hard to defend adversary fact—finding on the ground that it is the best way of ensuring that
judges and hurries get the most information, when the lawyer‘s ―finesse and art and technique‖ consists of
keeping awkward facts out of court.

Even worse, adversary tactics sometimes include efforts to ensure that cases never even make it to the stage
of fact-finding. Defense counsel for corporate defendants use procedural delays to exhaust their opponents‘
funds. When they can, lawyers resort to intimidation tactics. A particularly egregious example occurred

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repeatedly during litigation over the Dalkon Shield, an intrauterine contraceptive device that pharmaceutical
manufacturer A. H. Robins marketed during the 1970s to over three million women in which design flaws
caused 66,000 miscarriages and sterilized thousands of women by infecting them with pelvic inflammatory
disease (PID). Faced with staggering liability exposure, Robins counsel decided on a scorched-earth defense.
One tactic of Robin‘s counsel soon acquired the nickname ―the dirty questions list‖. Defense lawyers taking
depositions asked plaintiffs very specific, very graphic questions about intimate details of their personal
hygiene and sexual practices – questions that one plaintiff described as ―more like an obscene phone call‖
than a legal interrogation. Firm lawyers argued that ―dirty questions‖ were relevant to the law suits because
they might reveal alternative sources of PID infection. The questions mainly served, however, to intimidate
plaintiffs into dropping their law suits or settling them for inadequate amounts. The message was clear that
they might have to answer the same questions in open court. Among other things, defense lawyers asked
plaintiffs for the names of all their past and present sexual partners (―besides your husband‖), with the clear
implication that the partners‘ names might be revealed and their testimony elicited for purposes of
impeaching plaintiff‘s answers to the ―dirty questions‖ about what they like to do in bed. Potential plaintiffs
filed affidavits indicating that they had dropped their own law suits because of questions other plaintiffs had
been asked.

A similar example is the rise of the so-called ―SLAPP suit‖ (Strategic Lawsuit Against Public Participation)
where citizens protesting corporate policies or actions are typically sued for defamation or tortious
interference with business, the aim of which is not legal victory but intimidation. Defendants faced with
prospect of ruinous legal bills and the risk of substantial personal liability agree to cease protest activities in
return for withdrawal of the SLAPP suits.

The point of these examples is plain: you cannot defend the adversary system on the basis of its truth-finding
function when it licenses (or even requires)) behavior designed to ensure that the truth never comes out,
because litigants are intimidated into abandoning legitimate cases.

One final difference between ―pure‖ argument, paradigmatically appellate argument of legal issues, and the
adversary system of fact-finding, appears in the ethics rules themselves. Ordinarily, lawyers are required to
keep facts confidential, and in the adversary system they must never reveal damaging fats to a court unless
they are compelled to do so. Matters are very different when we turn from facts to law. Here, fundamental
rule requires lawyers ―to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. This rule,
which law students and lawyers often find counter-intuitive (―why should I do my adversary‘s legal research
for them‖), highlights what makes argument about legal questions different. The idea is to ensure that judges
reach the best resolutions they can of questions of law. Their resolutions, after all, become precedents.
Getting to the best resolution requires total transparency, and if my adversary has overlooked a favourable

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case on point, the rule requires me to throw myself on the sword by telling the judge about the case, to ensure
that the judge does not overlook it. By contrast, we have seen that adversarial advocacy on factual matters
places lawyers at war with transparency.

[Luban then considers Lon Puller and John Randall‘s justification of the adversary system in the 1958 Joint
Conference Report. Fuller and Randall justify adversarial justice as favourable to the inquisitorial system as a
basis for discovering the truth.]

Ultimately, the Joint Conference report seems to take as a premise the idea that truth is served by self-
interested rather self-interested rather than disinterested investigation. ―The lawyer appearing as an advocate
before a tribunal presents, as persuasive as he can, the fats and the law of the case as seen from the standpoint
of his client‘s interest‖ [emphasis added]. The emphasized phrase is accurate, but, it gives the game away.
For there is all the difference in the world between ―the facts seen from X‘s standpoint‖ and ―the facts seen
from the standpoint of X‘s interest.‖ Of course it is important to hear the former – the more perspective we
have, the better informed our judgment. But to hear the latter is not helpful at all. It is in the murderer‘s
interest not to have been at the scene of crime; consequently, the ―facts of the case as seen from the
standpoint of [the] client‘s interest‖ are that the client was elsewhere that weekend. From the standpoint of
my interest, the world is my cupcake with a cherry on top; from the standpoint of yours, its streets are paved
with gold and you own the streets. Combining the two does not change folly to truth.

All this does not mean that the adversary system may not in fact get at the truth in many hard cases. I suppose
that it is as good as its rivals. But, to repeat the point I began with, nobody knows how good that is.

[Luban then considers and refutes the claim that zealous advocacy is necessary to defend a client‘s legal
rights.]

C. Ethical Division of Labor

This argument is no longer that the excesses of zealous advocacy are excused by the promotion of truth or the
defense of legal rights. Rather, it is that they are executed by what Thomas Nagel calls ―ethical division of
labor‖. He says, in a discussion of the peculiarly ruthless and result-oriented role morality of public officials;

That the constraints of public morality are not imposed as a whole in the same way on all public
actions or on all public actions or on all public offices. Because public agency is itself complex
and divided, there is a corresponding ethical division of labor, or ethical specialization. Different
aspects of public morality are in the hands of different officials. This can create the illusion that
public morality is more consequentialist or less restrictive than it is, because the general
conditions may be wrongly identified with the boundaries of a particular role. But in fact those
boundaries usually presuppose a larger institutional structure without which they would be

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 illegitimate. (The most conspicuous example is the legitimacy conferred on legislative decisions
by the limitation of constitutional protections enforced by the courts.)

The idea is that behavior that looks wrong from the point of view of ordinary morality can be justified by the
fact that other social roles exist whose purpose is to counteract the excesses resulting from role-behavior.
Zealous adversary advocacy is justified by the fact that the other side is also furnished with a zealous
advocate; the impartial arbiter provides a further check.

This is in fact one of the most commonly heard defenses for pugnacious advocacy: ―he had a lawyer, too‖;
―I‘m not supposed to do his lawyer‘s job for him‖, or quoting Sharswood once again, ―The lawyer, who
refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the
functions of both judge and jury.‖

The problem is this. The checks-and-balances notion is desirable because if other parts of the system exist to
rectify one‘s excesses, one will be able to devote undivided energy to the job at hand and do it better. It is
analogous to wearing protective clothing in a sport such as fencing: knowing that your opponent is protected,
you can go all out in the match. But in the adversary system the situation is different, since the attorney is
actively trying to get around the checks and balances. Here, the analogy is to a fencer who uses a special foil
that can cut through the opponent‘s protective clothing. To put the point another way, the adversary advocate
attempts to evade the system of checks and balances; not rely on it to save her opponents.

There is another problem with the notion of ethical division of labor. It attempts to justify a system of roles
by the fact that the system is self-correcting, in other words that injuries perpetrated by one part of the system
will be rectified by another. Rectification, however, carries with it high transaction costs in terms of money,
time, worry, energy, and (generally) an arduous passage through the bureaucratic straits.

VI. Nonconsequentialist Justification of the Adversary System

I wish to consider two nonconsequentialist justification of the adversary system: the first and perhaps boldest
is an attempt to justify the adversary system in the wide sense: it is the argument that the traditional lawyer-
client relation is an intrinsic moral good. The second is a cluster of related argument: that adversary
adjudication is a valued and valuable tradition, that it enjoys the consent of the governed, and that it is thus an
integral part of our social fabric.

A. Adversary Advocacy as Intrinsically Good

When we seek out the services of a professional, it seems to me that we generally see more to the relationship
than a mere quid pro quo. We have the sense of entrusting a large chunk of our life to this person and the fact

189
that he or she takes on so intimate a burden and handles it in a trustworthy and skilful manner when the stakes
are high seems commendable in itself. The business aspect moves along a different moral dimension: it
explains how the relationship came about, not what it involves.

Feelings such as these are quite real; the question is whether they have merely subjective significance. If they
do not, if they mean something more, that may show that Schwartz‘s two principles, and thus the adversary
system and the behaviour it countenances, are themselves positive moral goods. Such arguments are, in fact,
frequently made: they are based on the idea that providing service is intrinsically good. No finer statement of
this exists, in my opinion, than Mellinkoff‘s.

Charles Fried thinks of the lawyer as a ―special-purpose friend‖ whose activity –enhancing the client‘s
autonomy and individuality – is an intrinsic moral good. This is true even when the lawyer‘s ―friendship‖
consists in assisting the profiteering slumlord to evict an indigent tenant or enabling the wealthy debtor to run
the statute of limitations to avoid an honest debt to an old (and less well-off) friend).

The more fundamental problem, however, is that Fried takes the lawyer to be the mere occasion rather than
the agent of morally-bad-but-legally-legitimate outcomes. The system did it; it ―was just one of those things
difficult to pre-visualize – like a cow, say, getting hit by lightning.‖

This is false in three respects: first, because it discounts the extent to which the lawyer has had a creative
hand in advocating the outcome, at times even reversing the law – a skilled lawyer, after all, argues,
advocates, bargains, and persuades. Second, because the system is not an abstract structure of impersonal
role-description but a social structure of interacting human beings, so that the actions of its agents are the
system. Third, because the lawyer is indeed acting in propria persona by ―pulling the levers of the legal
machinery‖. Fried‘s imagery seems to trade on a Rube Goldberg insight: if the apparatus is complex enough,
then the lever –puller doesn‘t really look like the agent. But that cannot be right. I chop the broccoli, whether
I do it with a knife or merely push the button on the blender. The legal levers are pulled by the lawyer: no one
else can do it.

VII. The Adversary System Excuse

A. Pragmatic Justification

So far the course of argument has been purely negative, a persecution and assassination of the adversary
system. By this time you are entitled to ask what I propose putting in its place. The answer is nothing, for I
think the adversary system justified.

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My justification is rather a version of the tradition argument, but purged of its ideological overtones. I shall
call it the ―pragmatic justification‖ or ―pragmatic argument‖ to suggest its affinity with the relaxed, problem-
oriented and historical notion off justification associated with American pragmatism. The justification is this:

- First the adversary system, despite its imperfections, irrationalities, loopholes and perversities, seems
to do as good a job as any at finding truth and protecting legal rights.
- Second, some adjudicatory system is necessary.
- Third, it‘s the way we have done things for at least a century.

B. Pragmatic Justification and Institutional Excuses

Because this is so typical of institutions, it is worth asking about the effect of pragmatic argument on the
moral obligations of institutional functionaries (such as lawyers). The position I want to press s roughly that
a social institution that can receive only a pragmatic justification is not capable of providing institutional
excuses for immoral acts. To do that, an institution must be justified in much stronger way, by showing that it
is a positive moral good. A pragmatic argument, by contrast, need show only that it is not much more
mediocre than its rivals.

Let me spell this out by criticising what I shall call the Transitivity Argument which goes as follows:

1. The institution is justified.

2. The institution requires its functionary to do A.
3. Therefore, the functionary is justified in doing A.

The general problem, which creates the dilemma, is that the propositions

The institution is a morally good one

and

the institution imposes role-obligations on its officers some of which may mandate morally bad role-acts

can both be true.

In such a case, the institutional excuse, fully spelled out, will take the form I have indicated: the agent
justifies the role-act by showing it is required by the role-obligation, justifies the obligation by showing it
derives from the institutional task, justifies the institutional task by appealing to the structure of the
institution, and justifies the institution by demonstrating its moral goodness.

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VIII. Conclusion and Peroration

The best way to see the import of the arguments I have been offering is not as attack on the adversary system
(for, after all, I have not suggested that it should be replaced) so much as an attack on an ideology consisting
of these ideas:

1. The adversary system is the most powerful engine of justice ever devised.
2. It is a delicately poised instrument in which the generation of just outcomes depends on the regular
functioning of each of its parts.
3. Hence, the pursuit of justice morally obligates an attorney to assume a one-sided Broughamesque
role.
4. The adversary system, in consequence, institutionally excuses lawyers from ordinary moral
obligations conflicting with their professional obligations.
5. Broughamesque advocacy is, moreover, a cornerstone of our system of political liberties, for it is the
last defence of the hapless criminal accused against the awesome power of the state. To restrict
advocate is to invite totalitarianism.

I have argued against the first four of these propositions. About the fifth, the argument it offers that the
criminal defense lawyer ―must not regard the alarm, the torments, the destruction which he may bring
upon others‖ (Brougham, again) is rather persuasive, but only because of two special features of the
criminal context: that we have political reasons for handicapping the government in its role as enforcer,
and that the criminal defendant comes closest to the paradigm of the man-in-trouble.

The adversary system possesses only slight moral wrongs. Anything else that is morally wrong for a
nonlawyer to do on behalf of another person is morally wrong for a lawyer to do as well. The lawyer‘s
role carries no moral privileges and immunities.

This does not mean that zealous advocacy is immoral, not even when it frustrates the search for truth or
violates legal rights.

But, it will be objected, my argument leads to a paradox, for I have claimed to offer a vindication, albeit a
weak one, of the adversary system, and therefore of the duties of partisan advocacy that it entails. Am I
not saying that a lawyer may be professionally obligated to do A and morally obligated not to do A?

That indeed is the conclusion, but there is no contradiction here. The adversary system and the system of
obligation it mandates are justified only in that, lacking a clearly superior alternative, they should not be
replaced.

That, of course, is the way the world is, and criticizing an ideology won‘t change the world. The point of
the exercise, I suppose, is merely to get our moral ideas straight: one less ideology is, after all, one less
excuse.
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  Legal Ethics and the Good Client

By Thomas Shaffer
The distinctive feature of ethics in a profession is that it speaks to the unequal encounter of two moral
persons. Legal ethics, which is a subject of study for lawyers, therefore, often becomes the study of what is
good-not for me, but for this other person, over whom I have power. Legal ethics differs from ethics
generally: ethics is thinking about morals. Legal ethics is thinking about the morals of someone else. It is
concern with the goodness of someone else. In this view, legal ethics begins and ends with Socrates's
question to the law professors of Athens: "Pray will you concern yourself with anything else than how we
citizens can be made as good as possible?"'

The subject in legal ethics is, in this way, the client's goodness, but legal ethics does not focus on the client's
conscience. Legal ethics is complicated by the fact that the discussion of this other person's morals is focused
not in his conscience but in mine. Legal ethics is thinking about my client's morals, but I am the one who is
thinking. Most of our discussions-in committees of lawyers, in bull sessions, in law school, and with our
spouses at dinner are on what a lawyer should do about his client's morals.

This is a very difficult situation. Martin Buber, the great, prophetic, modem teacher of the theology of human
relationship, the person who formulated the notion of the I-Thou relationship as a foundation for moral life,
despaired of professional relationships. He thought it was all but impossible for a professional in the modern
world to look at his client and see a Thou rather than an It: I can see that you want to do it, he said, but you
cannot; the sides are too unequal. The situation is not only difficult, Buber said-it is tragic.

It is also a morally perilous situation for lawyers. It is an invitation to hubris-to arrogance. Most discussion in
legal ethics these days is discussion of how a lawyer can protect herself from her client's bad morals. Modem
legal ethics assumes that clients corrupt lawyer. Sometimes lawyers are stern, wise, parental; and clients are
children who have to be led, forced, or tricked into behavior that will not make lawyers uncomfortable.

If we can manage to regard our client as a Thou and not an It, and if we manage to avoid hubris, the issue is
this: What should I want for my client?

The possible answers are three. The first answer, to the question, "What should I want for my client?" is: I
should want my client to be right. The second is: I should want my client to be free. And the third is the
Socratic one: I should want my client to be good

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I. RECTITUDE

The first answer-I should want my client to be right-is traditional in American legal ethics. It is associated
with Thomas Jefferson. They were "republican" in their denial of a distinction between public and private
morals. Theirs was the legal ethic of the gentleman. David Hoffman first gave it systematic expression, in his
essays on professional deportment of 1817 and 1836.

Judge George Sharswood, Chief Justice of Pennsylvania, founder of the law school at the University of
Pennsylvania, brought the republican legal ethic into the next generation. A lot was happening to the legal
profession in the middle of the 19th century: The country was getting ready to go to war-its bloodiest war-
ostensibly over a set of legal questions; the robber barons were in their youth and they were looking for
lawyers to help them. Sharswood thought the moral perils for lawyers were serious: "The temptations are
very great . . , he said.

"There is no class ... among whom moral delinquency is more marked and disgraceful." His faith was that
the republican gentlemen-lawyers could assure rectitude among their restless clients: "It is ... the duty of
counsel," he said, "to be the keeper of the conscience of the client; not to suffer him, through the influence of
his feelings or interest to do or say anything wrong in itself, of which he would afterward repent."

Hoffman's and Sharswood's legal ethic found its way, after the war, into the earliest state codes, most notably
the 1880's Alabama code that was the model for other state codes and the A.B.A. Canons of 1908: "The client
cannot be made the keeper of the attorney's conscience," Jones said.

Republican legal ethics says that what is important is that the client does the right thing, and that it is the
lawyer's job to see to it that his client does the right thing.

The legal ethics of rectitude is a one-way street. It speaks to professional responsibility but it tends to hubris,
to regard clients as sources of corruption, as occasions of sin. Hoffman said, in reference to the client who
came to him as debtor on a debt barred by the statute of limitations, "If my client is conscious he owes the
debt, and has no other defense than the legal bar, he shall never make me a partner in his knavery."

II. FREEDOM

The second school of thought in modern legal ethics, the legal ethics of freedom, is, if nothing else, a
corrective to hubris. It does not talk about responsibility and rectitude. It says that what I should wish for my
client is that he be free. He will, if I serve him well, be informed. He will, to use a trendy theological word, be
empowered. And he will then have, to use a trendy philosophical word, autonomy. I will have acted to protect
his autonomy.

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He will be empowered to act autonomously. Autonomy is compounded from the Greek words for self and
law. My client will himself, make law; he will, alone, be his own ruler. In terms of intellectual history, this
ethic traces to Immanuel Kant and Enlightenment moral philosophy; it says that a person's moral principles
should be his own, not his lawyer's.

One of the most prominent exponents of this view in modern American legal ethics is Professor Monroe
Freedman, who said: "The attorney acts both professionally and morally in assisting clients to maximize their
autonomy," and then explained:

that is, by counselling clients candidly and fully regarding the clients' legal rights and moral responsibilities as
the lawyer perceives them, and by assisting clients to carry out their lawful decisions.

. . . [T]he attorney acts unprofessionally and immorally [when he deprives] clients of their autonomy, that is, by
denying them information regarding their legal rights, by otherwise pre-empting their moral decisions, or by
depriving them of the ability to carry out their lawful decisions.

To deny my clients legal services because I disagree with their moral choices is-Freedman argues-to "deprive
them of the ability to carry out their lawful decisions."

The adversary ethic was invented in New York City after the Civil War; it had as its purpose the vindication
of lawyers who helped the robber barons bribe judges and sell watered securities. The ethic says that lawyers
have no moral responsibility for what their clients do. On this basis, the adversary ethic justifies legal
assistance for rapists, murderers, child-molesters, arms merchants, and people who poison people, perjurers,‘
people who use lawyers' advice to commit crimes,‘ and the perpetrators of stock frauds ordinary moral
restraints on complicity. Ordinary morals say that if I help somebody do something evil, I am an accomplice
in evil. The dispensation is necessary if lawyers are to serve the state; and such service to the state is either
self-evidently righteous, or it is righteous because the state is the source of goodness for its people.

As Freedman describes the adversary ethic, "One's moral responsibility will ... vary depending, among other
things, upon whether one has undertaken special obligations ....

There are two answers to the adversary ethic: Either it is not a serious ethic at all, it is only an excuse for
immorality," or it is an ethic that depends on the power-that depends on the state to provide goodness. It is
either a farce or it is idolatry. The state cannot, will not provide goodness.

Freedman's argument is based not on statism but on the proposition that the highest good of a human person-
at least the highest good that is of social or professional importance-is that he be free. That he be autonomous.
That he live according to moral principles that are his own, not his lawyer's. That position is attractive against
hubristic moral authority.

There are, first of all, formal difficulties: For one thing, the proposition that my principles should be my own
is trivial. Whose principles are my principles likely to be? Who else is responsible for my moral principles?

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Even if I read them out of a cook book, when I act on them they are mine.

- The proposition, my principles should be my own, is also paradoxical; If my principles should be my

own, the proponents of autonomy should not insist that I accept the principle-their principle-that my
principles should be my own. They want me to grant an exception to their proposition, before we
even get started.

Those are formal difficulties. The substantive difficulties are deeper and more sensible.

The problem with republican legal ethics was that it put the integrity on the lawyer's side: Hoffman looked at
his client and said, "He shall never make me a partner in his knavery." The problem with the legal ethics of
autonomy is that it shifts that load the other way. Freedman looks at his client and says, I will tell you what I
think you should do, but if you decide to do something else--even something I regard as immoral for you and
for me-I will help you do it; otherwise I will be depriving you of your ability to carry out your lawful
decisions. Conditional advice-moral advice-fraternal correction-is no good unless integrity is understood. In
fact, it is not even moral advice unless integrity is understood, since moral advice depends on character and
on the perception, in the person seeking the advice, that the advisor is a person of character.

III. GOODNESS

The problem with the legal ethics of rectitude was that it seemed not to understand that moral advice is not
good unless it is open to influence from the client; he who counsels his sister must be prepared to be
counselled in turn. My client is, as Justice Wilson said it, the noblest work of God; that means he may have
some wisdom for me; it also means that he is capable of being and of becoming a good person, and is
therefore worth my giving him moral advice. This theology of the client argues against the legal ethics of
rectitude, which has so often seemed to think of him as no damned good.

But there is integrity on the other side of this relationship as well-on the lawyer's side. Integrity means that
the lawyer has moral limits. There are things you will not ask your friend to do, and if your friend is your
lawyer, there are things you will not ask your lawyer to do. In part-usually, I suppose-that is because you love
her, and you perceive her character, and you want her to be and to become a good person. But also, I think, it
is because you know that it would be futile to ask her. Part of the value of her moral advice is that there are
things she will refuse to do. This refusal is part of her character.

Her character is what makes her your friend, and you her friend, in the first place. Because the lawyer is
good, her advice is worth having, and worth giving. It‘s being worth having and worth giving is a function of
her character.

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Moral counsel, then, depends on character, both inherently-otherwise it would not be moral advice-and in
terms of effect. We heed the moral advice of a good person because the person who gives it is good. This is
as true of social ethics-of political leadership-as it is of professional ethics. It is as true in tennis as it is in law
practice.

What is wrong, then, with Monroe Freedman's interesting notion about moral counsel is that his theory of
client autonomy removes the essential character of the lawyer. Freedman argues for moral advice, but he also
argues for the lawyer who says, "I will do whatever you want me to do regardless."

I argue that such a hypothetical lawyer would not be a person of integrity. And a person who lacks integrity is
not a dependable source of moral advice. I would not trust my life, my fortune, nor, least of all, my
conscience to such a person.

+++++++++++++++++++++++++++++++++++++++++++++++++++++

 Michelle’s Story: Creativity and Meaning in Legal Practice

By Alice Woolley
From: In Search of the Ethical Lawyer: Stories from The Canadian Legal Profession
(Adam Dodek and Alice Woolley eds)* (Vancouver: UBC Press, 2016)

What would it mean if you couldn't be a lawyer anymore? Take money out of the equation, and assume that
you have enough to live comfortably. But a degenerative illness has taken away the physical and mental
energy required for legal practice. What would you lose if that happened to you? Who would you be?

Most lawyers never have to answer such questions. They might never ask them. Michelle. whose story this
chapter tells, was not that lucky.

You ask me something about how I feel, about how my life is different without my practice. The more I‘ve
thought about that, the more I‘ve kept feeling like I‘m hollowed out the centre, you will still be holding up the
plate, but its core is gone. I do feel hollowed out.

A tree trunk, you hollow it out, and it‘s a canoe. It‘s just not a tree anymore.

It took me a long to accept that I was the canoe and not the tree. My shape is different. And my shape might be
different tomorrow. That‘s reality for me every day.

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For Michelle. as for others who leave legal .practice, these questions cannot be avoided, nor can the deeper
question that they reflect: what role did being a lawyer nor can the deeper question that they reflect: what
role did being a lawyer play in the construction of the ethics Of my life, in making my life meaningful, in
making it moral, in making it count as well-lived?

That question can be considered personally through reflection on one's life and what it means to have lived
the life that one has. It can also be considered-philosophically.. The question of whether a lawyer's life
counts as well-lived matters not only for the lawyer. but also for the broader human question about the roles
that our society wants people to occupy, and about what it means to be one of the people who does so. The
general ethical question ―how should I live?" is one that I answer for myself (it is. after all, about how should
but also subject to impartial analysis (since it is also about how I should live).

Because of these subjective and objective aspects, the ethical question of how one should live can include a
wide variety of things. But in terms of understanding the social role of the lawyer, of what that role ought to
require, and the ethical consequences of occupying it, two concepts are especially important: morality and
meaning. Morality refers to the duties and obligations that follow from the universal and impartial principles
that govern human interaction. Morality identifies what each of us owes to each other by virtue of our
common humanity. Its concerns are universal and general, not particular and specific.

In terms of the lawyer's role, the question posed by morality is whether that role, normally understood,
necessarily results in violations of moral values. If it does, then the next question is whether some morality-
based justification in some way constrains or explains what lawyers ought to do on behalf of clients.

Meaning is more subjective and objective component. Meaning as a particular than morality, though it still
has an objective component meaning as a philosophical concept has roots in the work of Bernard Williams.
He suggests that each of us has "ground project "a project or set of projects which are closely related to his
existence

And which to significant degree give meaning to his life". Ground project s are distinct from morality in that
they are not impartial or universal in their significance, but they are not just those things that happen to
interest or attract me.

They are foundationally important; they make my life worth living, and they might be worth dying for. Pursuit
of my ground projects is as much part of my ethical life as is my compliance with moral norms.

Susan wolf has further defined meaning as a philosophical concept. For an activity to be meaningful, it must
be something that grips. Excites, or engages us; it must be something that we love. It also he something worth
focus on, something of value in an objective sense. The objective criterion for establishing meaning is not
necessarily onerous or rigid. It is not some ―sort of pure, subject-independent metaphysical property". It only
Connotes the idea that meaning is not wholly self-generated, but also involves some external assessment.

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Meaning Occupies a halfway point between the pure subjectivity of self-interest and the pure objective of its
morality. It is found in ―loving something (or u number of things) worth of love, and being able to engage
with it (or them) in a positive way".

When considering the ethics of the lawyer's role, the question raised by meaning is whether being a lawyer
can be a legitimate subject of engagement, a source of meaning for the person Who Occupies that role. Or
does being a lawyer in some way disrupt the ability to achieve a meaningful life, to find and pursue things of
value to her?

Surprisingly, perhaps, legal ethics theories, which use philosophical concepts to assess the lawyer's role,
have generally focused on i morality of that role. They identify the lawyer's role as creating a moral problem
it involves lawyers in advocating for morally-suspect (but lawful) cause through morally- doubtful (but
lawful) procedures, They then consider Whether what lawyers do can be justified through the principles of
moral or political philosophy, or whether what lawyers should change.

The answers to those questions do not tell us much, though, about the meaningfulness of the life of the person
who fills the lawyer's role. The morality (or immorality) of being a lawyer can affect the person's experience
of it as meaningful, but it does not necessarily do so, given that morality and meaning are distinct ethical
qualities. The translation of moral principles into a source (or disruption) of meaning requires some shift
between the impartial moral idea and the subjective personal commitment to that idea. The principle can't
just matter. It has to matter to me.

So how can meaningfulness and the lawyer's role be assessed? One way is by exploring the lives of ordinary
lawyers, and the complex interactions between their passions and interests, the things that mattered to them
and that ought to have mattered to them, and the work that they did. Through a careful telling and
consideration of the stories of those lives, we can develop a more general understanding of the intersection
between being a lawyer and having a meaningful life.

Michelle‘s professional life is one such story. If Michelle could have practiced longer, then professional
renown likely would have come her way. But she couldn‘t. Her life in law was consequentially an ordinary
one, in biographical details akin to those of her peers, but ordinariness does not preclude interest Michelle's
story is one of an intelligent,, warm, serious-minded, engaged, social, loved, driven, and sometimes self-
doubting woman whose ―ordinary‖ legal career included challenge, disappointments, and fulfillment. I
know her story because Michelle is my friend, but I tell her story because what law was for her, and the loss
that she experienced when it was taken away, show us something, that legal ethics scholarship has not
accounted for – the possibilities and challenge or accomplishing a meaningful life in law.

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[After reviewing Michelle's early years and experiences in law school Woolley tunes to Michelle's time in
practice]

After graduation, Michelle moved hack to Vancouver with her husband to begin articles at the relatively -
small local office of a Toronto-based national tine. It felt like an arrival. The lawyers were young, bright, and
totally engaged with their work. The firm paid articling students better than any other firm in the city, and
there was no doubt that this was the place to be, with the best work, the best students, the best lawyers, and
the tightest team. The firm paid the tab for a weekly breakfast for articling students, gave them supper and a
cab ride home if they worked late, and always paid for a drink at the bar if a partner was there. But the work
was overwhelming. The transition from law school was almost brutal in its difficulty, especially since the firm
was willing to give the students and junior lawyers as much responsibility as they could take and sometimes
more. The learning curve was steep and the hours demanded long.

During that time, Michelle was articled to a lawyer specializing in employment law and immediately was
exposed to that work, which she enjoyed yen much. When the lawyer left the firm halfway through her
articles, Michelle and a more- senior lawyer picked up many of his files. As a consequence, by the end of her
articles, she had an area of practice on which to concentrate, along with a great deal of practical knowledge
and skill. Michelle also began to sense some of the personal and power dynamics in the firm....

Her transition to being an associate at the firm was aided by the senior lawyer working on the employment
files with Michelle, and by a partner hired as a lateral, both of whom mentored her through employment and
human rights litigation and through managing the employment-law aspects of corporate mergers and
acquisitions. Gradually, she started to accumulate expertise and gain the sense of knowing what she was
doing; although she was not an expert, she had enough competence in the field to advise someone effectively,
and that was rewarding. Michelle also thought that employment law had a structure of fairness built into it,…
she thought that her advice ensured that people received the notice or other entitlements that the law
provides. There was an element of problem solving, and the problems were not always the same..

Those emerging rewards, though were coupled with some significant challenges, Although being given more
responsibility was fulfilling Michelle felt overwhelmed when the responsibility was beyond her knowledge or
ability.

When Michelle looked more closely at the tight firm culture, it also seemed to be more complicated than
when she had started. When she praised the courtroom skills of a lawyer whom she admired to a senior
partner, that partner responded, ‗well, there‘s more to practice‘, with an evident dismissiveness and a lack of
respect, Eventually, Michelle learned that his partners despised the lawyer whom she admired, condemning
his disorganized practice and failure to bill clients. Whatever the closeness of the culture, it did not preclude

200
judgement or ensure loyalty. And the things valued by the partners were not necessarily a lawyer‘s quality or
skill as an advocate for clients.

The financial and business aspects of the practice began to seem as if they determined relationship and status
in the firm. Only a few could stick it out Of the lawyer there when Michelle began, over 50 percent had left by
the end of her five years.

The dynamics at the firm could also complicate practice issues. Michelle asked by a partner to take on a
wrongful dismissal case for a family member of a client of the firm, but the employer of the dismissed family
member was connected to another client of the firm, represented by a different partner Michelle was caught
between the two clients and the two lawyers, and her representation had the added difficulty of not being
obviously meritorious. It left her feeling "boxed in by things completely outside of my control".

The general culture and attitude of the firm became unmanageable for Michelle after she had her first child.
No female lawyer at the firm had taken a full maternity leave: the expectation was that the women would
return to work as soon as possible. Michelle took six months; she had planned on only four, but a
combination of post-partum depression and problems arranging child care kept her away from the firm for
an extra two months, the firm was financially supportive during her leave, but on her return, expectations
were not adjusted in any way. She was immediately drawn into a significant litigation case, and in her first
month back, a February, she billed 220 hours.

Yet at the end of that month, during her annual review, the partners who reviewed her said. "you are an
exceptional lawyer, but you didn't bill enough hours last year". When she pointed out that she had been on
maternity leave, the response was that she should have billed more before she tellcome back early to meet her
target.

Michelle decided then that she would leave the firm, after a few months she was able to arrange an in-house
position advising on employment-related matters. Although in many ways she did not find the in-house
culture especially amenable — it was nice not t to have to bill hours, but the culture seemed to go too far in
the other direction from the firm's obsession with work —it provided her with the opportunity to work on a
significant international transaction and on human-right litigation. At that point, her five years of practice
began to feel like emerging expertise, which translated into a sense of competence in doing the work, ―I felt
confident, and I felt helpful.‖

After a year in-house, Michelle joined a small firm in which she did work for a more diverse client base,
individual as well as corporations. She found individual client work stimulating and memorable, the
importance of the files was ―more easily touchable,‖ and the lawyer whom she worked with the most was
smart and affable. He was also experiencing some changes in life, though, that made viability of the firm
dubious.

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Now pregnant with her second child. Michelle made the difficult decision to return to practice at a large firm,
joining the local office of another national firm. This firm immediately felt different from the one at which she
had articled. When she told them that she was pregnant and would take a maternity leave soon after joining
the firm, if she was hired, the lawyer who hired her responded, ―What‘s a maternity leave in a career? ...

The firm was also strongly non-hierarchical: .... They also seemed to live more modest!), within their incomes
rather than at or beyond them. And they" were intellectually,' engaged writing articles about legal practice
or am developments in law. There was significant expertise in the firm in labour and employment law. and
Michelle became part of this expertise….

When acting for individual Michelle used her advocacy protectively to ensure that clients avoided legal
consequences that they ought not suffer, and received the legal benefits to which they were entitled. A client
referred to her by the Law Society of British Columbia referral service had been employed at a corporation,
and .Michelle helped him to settle his wrongful dismissal claim. The client, disabled, sought government
benefits but„ misunderstanding his obligations regarding confidentiality, did not disclose the settlement,
amounts to the government. Michelle was able to explain to the benefits administrator what had .happened„
and to ensure that the misunderstanding did not result in the disallowance of his 'benefits...

When representing employers, Michelle was able to ensure that businesses could operate effectively and
efficiently, but also fairly. Employers can be reluctant to have ―full-sentence conversations" with employees
and to tell them honestly whet is expected of them and when those expectations are not being met, They also
have to accommodate employees' disabilities mid develop systems. to work through conflicts in the
workplace. Michelle put it this way:

I love doing HR [human resources] reviews, going to [the client], and finding all the ways in which they
were breaching the Human Right Code….

Someone with a bad back can‘t be told ―you‘ re going to get fired unless you continue to lift those boxes‖
The law require them to accommodate the disability to the extent they‘re able. Surely you can find a job that
works for the person with a bad back. I love doing the teaching on all that, or the workplace mediations,
working through conflict, system conflict .I‘d always say to my employers, if you have good communication
with your employees, they won‘t have a need to unionize. I loved all the employers Who called and said. ―I
have a big problem. One of my employees stinks. We‘ve bought her soap and bath balms for Christmas, but it
doesn‘t help‖ [I would respond] that if she‘s good at what she does and you want to keep her, you ‗re going
to need to have that conversation with her. You can‘t just duck it.

It really suits my personality. Because I‘m a bit of a practical head. The idea of researching, or working
through the courts, that‘s just not my personality. Human beings are interesting to me. And they get
themselves into all these kind of knots because they don‘t want to hurt each other‘s feelings…

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Michelle actively practised at the firm for three years. Becoming involved in firm hiring, as well as
continuing with her practice. In March 2003 she travelled to negotiate a collective agreement, and she found
herself exhausted and could not feel her feet. She began to develop other symptoms, losing feeling in her
hand, so that, when she picked up a glass to drink water, she had no sensation of holding the glass. The
exhaustion also continued, her mother has had multiple sclerosis since Michelle was a child, and Michelle
began to be concerned about what these symptoms might indicate. After losing sensation in both her hand
and her foot. she went to her family doctor and was quickly referred to the emergency neurology clinic,
seeing. Neurologist within a few days. She was put on the emergency list for an MRI. and within a Few weeks
she had an MRI at the Children's Hospital, which had a unit available.

I remember leaving work dial day and [my colleague] handing me a disc for the MRI, and I had this feeling
of …, I guess i bad a foams or resolve but also a feeling of dread. And fear, My recollection is that my in-
laws wire visiting, and they took me to Children‘s for the MRI. And what's Funny about that is, because it
was Children's, There‘s all these posters and colours and cute little things, and you kind of reel like an
imposter, like I was there by accident in more ways than one.

And so when they called me ….. I was at my desk ... And i remember [the doctor] saying, "so we got the MRI'
result, this is not going to be a surprise to you, you have eleven (or whatever the number was) holes in your
central nervous system. All indications of multiple sclerosis.

Exhaustion kept Michelle at home, but she thought that she would be back at work in a month. Yet a month
later, in July, she lost her ability to see properly. She could not read or drive until a heavy dose of steroids
corrected the problem.

Throughout this period, the firm was supportive. It had excellent short-term and long-term disability benefits,
and it made efforts to incorporate Michelle in practice where she could. ―Everyone thought I was coming
back. I thought I was coming back. They took me to lunch. They put me in proposals and brochures. I felt like
believed in me.‖

But the need to reduce stress and manage her exhaustion to keep further attacks at a minimum prevented
those efforts from coming to fruition.

Michelle also had to deal with regular attacks and en attendant increase in this severity of her symptoms.
Over the years. subtle indicators pushed her to the

Understanding that she was not going back, that she would never go back After six months, she told her
assistant to find another job, After a time the phone was disconnected. After a few years, the insurer required
that Michelle apply for her permanent disability pension from the Canada Pension plan, And eventually she
moved from active to inactive status with the law society of British Columbia. The development of that
understanding was a process

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At the beginning. I think I thought "this is just one more thing I have to get through." There's a sense of brutal
unfairness. My parents are divorced….My cousin committed suicide. I have alcoholism in my family. This
was one more thing I had to overcome. At the beginning, felt resigned to just getting through it. Figuring out
a way so could get back to my life.

And losing my whole Identity. I didn't feel that at the .beginning_ I didn't feel like I was going to give up. So
it‘s kind of ... been a slow chipping away… slowly coming to understand that it was going to lose all of that.
All of my purpose for being, all of my reason to get up, all of my efforts my everything. Being a lawyer to me
was so much part of who am and how I think I still think like a lawyer whether, you know, I'm talking about
teacher reviews or how to divide the costs for something or assess a risk for something. I think like a Lawyer.
it's still part of the way I approach the World. it‘s just that I can't use any of those [skills] to help anybody
who is paying anymore.

Part of my identity, that I was compensated for, exercising all those parts of my brain that I had trained to the
a certain way, learn a certain topic. I lost my contacts. Nobody called me anymore. Ii just sort of gradually
happened. It's like a slow leak. No one called me for lunch. 1 didn't get invited to the Christmas parties after
a few years. The last time 1 went to one I felt like the token disabled person in The back. You're not part of it
anymore. It took me two years to stop going to firm events.

I wanted to come back, and then I'd just get sick. I don't know how ten years have passed, and other than that
one time, when I worked on that deal, I can't believe I haven't found a way to do [ill. And it's funny, because
that's what people say to me: "Oh, Michelle, there's got to be a way for you to work.'

But I can't give anymore. Even these meetings [with you] leave me just spent. it's been a slow realization. A
slow acceptance of where I'm truly t. Lots of counselling, Lots of tears. Lots of grieving for all of that. For the
collegiality in a firm. For the intellectual work and rigour. For being useful in a way that I knew, that I just
had become, That's the sad thing. had really felt like I had properly become an expert at what 1 did. Not that
wasn't still learning, but overall 1 felt a level of competence.

Michelle's life after practice has not been bleak or unhappy. Her close network of friends is a source of
happiness and support. Michelle lives in a tightly-knit community. And her husband remains her best friend
and unwavering in his love and commitment. Her children are still in school, and she feels grateful to have
been present for them over the past ten years.

She has been as active in their education and in her community as she is able to be including getting involved
in some local issues of polices and politics. She has also found peace through yoga; ―that discipline of yoga
has been absolute essential for my healing and my grieving and…. Me taking the shape that I am now.‖

There is nothing perverse or surprising about Michelle‘s sense of loss, When you consider what attracted
Michelle to being a lawyer, why it engaged her passion and her interest, you would not say that she was

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wrong or that her sense of loss was misguided. It was meaningful to her, and it makes sense that it was so.
Some might argue that employment law could be fairer or more just Than it is. But inarguably it creates a
fairer and more just world for employees than world exist without it. It also achieves law‘s function of social
settlement, perhaps not satisfying everyone‘s sense of justice and fairness, but settling on a form of justice
and fairness between employers and employees that is recognizable and legitimate. For Michelle, the
impartial principle derived from political philosophy, that what lawyer do can be justified because it helps to
achieve law social settlement, was something that she experienced in her work as a lawyer. It was part of her
motivation to become a lawyer, and it was what she believed she was doing when ensured that employers talk
to employees, and employees who have been wrongfully dismissed received the payment and dignity that they
deserved. Her passion and commitment and the impartial objective justification for her work, were matched
in her experience.

For that reason, the classic moral problem for lawyer- that they advocate for morally suspect (but lawful)
end through morally dubious (but lawful) means was not an observed feature of her practice, Michelle did
have some legally weak cases, and at times there was external pressure to pursue cases that created
challenging and unsettling situations. But her passion for and engagement in her work were not disrupted by
any sense that she was participating in a morally_ corrupt system or process.

Michelle's engagement with her work also arose from values and experiences not specific to law
participating in the intellectual community of a law film, educating and assisting those who could benefit
from her knowledge, and developing that knowledge and expertise, when you engage in an activity worth
doing, and you develop your skills in that activity to a form of excellence, they can be meaningful, as they
clearly were for Michelle,

The challenges of legal practice to the meaningfulness of her life were when profit orientation overwhelmed
the practice, when the emphasis was on. Billable hours, and when the focus was on fitting into an intense
profit-driven culture, these aspects created .obvious challenges for Michelle as a parent; immediately after
her return to work from her first maternity leave, She did not spend any waking hours with Her child, let
alone have the opportunity to be actively-engaged in parenting her but they also disrupted The pursuit of
what was meaningful to her about being a lawyer. In those moments, being an excellent lawyer, helping or
educating clients or ensuring fairness, was more difficult because they weren't how success was measured or
valued. They were still what mattered in one sense — certainty they were what mattered to Michelle — but it
is hard to hold on to that when those around you are not interested in looking at it or in valuing your efforts
achieve it.

I have told Michelle's story because it shows us things about being a lawyer that the academy does not
always see. It certainly has a claim to our attention as scholars. But that isn't the whole truth. I have also told
her story because I want people to know it. I want them to know her gifts and the work that Michelle was

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capable of doing. i want them to know the challenges that she overcame and her determination to find a place
to practise where she could the lawyer that she wanted to be. And I want them to know that being lawyer can
mean a great deal, that when it is taken away, it can break your heart.

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 Article in Chapter 2. (Page 87 of the Note)

Topic: The Preservation of Client Confidences

 Ethics and Canadian Criminal Law

By D. Layton & M. Proulx.

(Toronto: Irwin Law, 2015)*

A. INTRODUCTION

The lawyer's duty to keep confidential all information received as a result of representing a client is a core
obligation of the professional relationship. The scope of this duty is exceptionally broad, demanding that
counsel take great care in handling all information pertaining to or affecting a client. At the same time, there are
exceptions to the duty of confidentiality that permit, and sometimes even demand, disclosure of such
information by the lawyer. Determining the instances where exceptions should apply raises some of the most
controversial and daunting ethical problems facing the criminal bar today. ...

The standard justification for imposing a duty of confidentiality on lawyers is that the client who is assured of
complete secrecy is more likely to reveal to his counsel all information pertaining to the case. The lawyer
who is in possession of all relevant information is better able to advise the client and hence provide competent
service, furthering both the client's legal rights and the truth-finding function of the adversarial system.
The obligation to maintain confidentiality also protects the client's privacy, as well as promoting autonomy
and dignity by facilitating her control over personal information and the conduct of the defence. And the duty of
confidentiality is closely connected to the overarching duty of loyalty owed by a lawyer to the client. The
obligation to be loyal would be compromised if a lawyer could use information so as to adversely impact
the client. A complete bar on the unauthorized use of confidential information by counsel, even where
no adverse impact is possible, accordingly serves a prophylactic function that helps to ensure undivided
loyalty.

What is more, solicitor-client privilege and thus by implication the ethical duty of confidentiality acquires "an
added dimension" where the client is the subject of a criminal investigation. The "promise of confidentiality"
engaged by the privilege is particularly vital, because the client is facing the state as a "singular antagonist". More
specifically, maintaining client confidences is especially important in the criminal context because doing so
substantially furthers the client's ability to exercise constitutional rights against the state.
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In promoting effective legal advice, the duty of confidentiality not only benefits the individual client but
also serves a broader societal interest. As already noted, a client who is able to rely on the assurance of
confidentiality is more likely to receive sound legal counsel. As a result, he is more likely to obey the law and if
charged with a crime is better able to mount a defence. It is in the public interest that these ends be
encouraged, and the duty of confidentiality thus advances fundamental systemic goals.

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 Articles in Chapter 4. (Page 117 of the Note)

Topic: The Adversary System and Lawyers as Advocates

 Does Civility Matter?

By ALICE WOOLLEY
Recent discussion of legal ethics in Canada has focused on the importance of ―civility‖ as a fundamental
value and goal of ethical conduct. This comment questions that focus. After defining the content of ―civility‖
and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests
that the emphasis on civility is misplaced.

Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers
and potentially undermines the effective representation of client interests. It also shifts emphasis away from
the ethical values that should be the focus of our attention, namely loyalty to clients and ensuring the proper
functioning of the justice system.

I. INTRODUCTION

THE LEGAL PROFESSION cares about civility. Over the past thirty years in North America, and
particularly over the past ten years in Canada, legal regulators and professional associations have undertaken
initiatives to foster and encourage lawyer civility—and to discourage and even penalize lawyer incivility.
This commentary challenges the civility movement. It argues that to the extent that civility means the
enforcement of good manners amongst lawyers, it is not a proper subject for professional regulation. To the
extent that civility encompasses other ethical values—respect and loyalty to clients, respectfulness to the
general public, and ensuring the proper functioning of the legal system— the use of ―civility‖ as an all-
encompassing ethical value obscures the real ethical principles at play. Imposing a broadly defined obligation
of ―civility‖ does not meet the goal of principles of legal ethics and professional regulation: to guide counsel
as to what is required of an ethical lawyer.

This commentary develops this argument in three parts. First, it identifies how civility has been defined by
the Canadian legal profession. It considers civility initiatives undertaken by organizations such as the
Canadian Bar Association (CBA), as well as law society disciplinary decisions in which lawyers have been

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sanctioned for incivility. Second, it critiques attempts to regulate the manners of lawyers, focusing in
particular on the risk that such attempts will undermine self-regulation and the pursuit of client interests.
Third, it critiques the inclusion of other fundamental ethical values within the concept of ―civility,‖ arguing
that rules directed at ensuring that lawyers appropriately balance and pursue honesty, loyalty, respectfulness,
and justice should be identified as such. An omnibus requirement of ―civility‖ does not give sufficient
guidance to lawyers about what the duty to be ethical requires.

II. WHAT DOES CIVILITY MEAN?

As employed by the legal profession, ―civility‖ clearly encompasses two separate areas of concern. It refers
primarily to the requirement that other people, and in particular other lawyers, be treated with courtesy,
manners, and politeness.

Thus, the Law Society of Alberta‘s Office of the Practice Advisor has defined incivility as ―sharp conduct or
shoddy treatment of other lawyers, opposing parties and even independent witnesses.‖ The Nova Scotia
Barristers‘ Society 2002 Task Force on Civility defined civility as ―akin to notions of courtesy, politeness,
good manners and respect.‖

Similarly, the Canadian Bar Association and Advocates‘ Society Principles of Civility for Advocates include
numerous rules directed primarily at courtesy towards others. The rules direct lawyers to ―always be
courteous and civil to Counsel engaged on the other side of the lawsuit,‖ to treat witnesses with ―appropriate
respect,‖ to avoid ―discourteous comments,‖ and to ―avoid illconsidered or uninformed criticism of the
competence, conduct, advice, appearance or charges of other Counsel.‖

In every provincial law society decision reported on Quicklaw in which the term ―civility‖ is used, the
allegation of incivility arose from the lawyer‘s use of strong, profane and/or flatly rude language towards
another person. In all cases the concern about civility, and the justification for the sanction imposed on the
lawyer, appears to have arisen from the lawyer‘s lack of courtesy or politeness.

In a 2002 decision, the Law Society of Alberta discussed civility as a form of politeness, noting that
―[l]aunching or exchanging insults is not professional behaviour.‖ Similarly, the Law Society of Upper
Canada has defined civility in terms of communications between counsel and others, emphasizing that while
not all ―strongly-worded or ill-received communications‖ are problematic, ―[o]verwrought opinion,
misplaced hyperbole, or a desire to intimidate, sully or defame have no place in communications from
lawyers.‖ Given the fine line between candour and slander, a lawyer should ―err on the side of courtesy.

This first meaning of civility therefore addresses the manner in which counsels communicate with each other,
specifically the politeness and courtesy, or lack thereof, in lawyer communication. The second meaning of

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civility is more substantial, referring generally to the conduct essential to ensure the proper functioning of the
judicial process, with a specific focus on advocacy.

The CBA Principles deal significantly with the obligation of a lawyer to ensure the expeditious and effective
delivery of justice. This obligation includes duties to comply with undertakings, to ensure that draft orders
―accurately and completely reflect[] the Court‘s ruling,‖ to refrain from engaging in discovery merely to
impose a financial burden on the other side, and to refrain from submitting perjured evidence to the court.
This second class of civility obligations thus requires more than polite behaviour from a lawyer. It requires a
lawyer to assist in the effective and expeditious functioning of the legal system.

The following sections assess the validity of these two categories of civility as ethical obligations.

III. IS COURTESY A MORAL GOOD?

The argument against civility as a moral good is hardly self-evident. After all, politeness, decency, and
kindness to others seem like basic moral obligations with which everyone is familiar and to which everyone
should adhere. One commentator has gone so far as to suggest that civility guidelines for lawyers are akin to
what one might learn in kindergarten about being ―nice to each other‖ and ―kind to the teacher.‖

The problem, however, is that the ethical obligations of a lawyer are not the same as those of a kindergarten
student. It is the unenviable job of a lawyer to argue for the guilty to be acquitted, to ask unpleasant personal
questions of people who would rather not answer them, and to attempt to win even where victory imposes
costs on others. Lawyers do not and should not ―share and be nice‖ where to do so impinges either on their
loyalty their client or their fidelity to the legal system.

This does not mean that lawyers must be uncivil, but it does mean that disciplining lawyers for incivility—
and even attempting to foster a culture of civility—may have negative ethical consequences.

Most significantly, an undue emphasis on civility has the potential to undermine the ability of law societies to
fulfill their obligation to regulate lawyers‘ ethics. As members of a self-regulating profession, lawyers must
hold each other to account. They must be actively engaged with each other‘s ethics and professionalism, and
must be critical where necessary. Emphasizing civility has the significant potential to dampen the effect of
this function, and to foster professional protectionism. If a strongly-worded criticism will subject a lawyer to
discipline for incivility she will, naturally, be less likely to make that criticism even if it is well-founded.
Knowing the difficulty of proving the truth of allegations of professional misconduct, she will simply refrain
from making them.

In several of the disciplinary decisions lawyers were sanctioned for making allegations about the competence
or ethics of other lawyers. In each case it appears that the remarks were largely unfounded, as no supporting

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evidence was introduced to the disciplining law society. However, assume for the moment that the allegations
had a foundation in truth. Presumably information about the ethics and competence of other counsel—
however rudely and impolitely expressed—is something that should be brought before the appropriate
authorities. Had the allegations been substantiated with some being investigated for misconduct had criticized
another counsel to the Court, and in Carter, in which the lawyer had criticized another counsel to the legal aid
society.

The law of defamation still exists to give protection to lawyers who are unfairly subject to criticism by their
colleagues. The addition of law society discipline fosters protectionism unnecessarily and suppresses
legitimate criticism In addition, lawyers should not have to be civil where it undermines their ability to
advocate for their client. Or, to put it differently, lawyers should not be disciplined for incivility where it
occurs in the context of protecting a client‘s legal interests. In the case of Pozniak, a lawyer was representing
himself in a real estate transaction. The opposing counsel attempted to have his client impose a condition on
the real estate contract with respect to Pozniak‘s ability to assume a mortgage. The client declined to do so.
At closing, opposing counsel nonetheless attempted to impose this condition as a trust condition. Pozniak
pointed out that doing so was improper, and the lawyer backed down.

However, the difficulties over the trust condition caused the closing to be delayed, at which point the lawyer
attempted to require Pozniak to pay daily interest on the funds outstanding. Pozniak was understandably
angry and wrote to the lawyer (with whom he had gone to law school) saying ―I regret to say this [name], but
you are clueless. I would hope that the other solicitors in your firm are not similarly clueless.‖ The Law
Society of Alberta found this conduct worthy of sanction and reprimanded Pozniak.

IV. FUNDAMENTAL ETHICAL VALUES AND CIVILITY

A more profound objection to the preceding argument against civility arises from the incorporation of more
fundamental ethical values in civility initiatives.

These include the incorporation of obligations related to efficient litigation process, proper conduct in ex
parte applications, and the general avoidance of sharp practice and improperly aggressive litigation strategies
(―Rambo‖ litigation).

The values underlying these requirements ensure that the ethics of the profession are upheld, including a
lawyer‘s proper loyalty to his or her clients. Indeed, many if not all of the requirements of the civility
initiatives are restatements or specifications of existing rules of professional conduct. They are, in other
words, already an important part of lawyers‘ ethical obligations.

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The inclusion of these fundamental ethical requirements within civility initiatives is problematic nonetheless.
First, as noted, the rules of professional conduct in every province in Canada contain similar ethical
obligations to those imposed by these more substantive aspects of the civility guidelines.

Second, and more substantively, the emphasis on civility tends to obscure the true nature of the ethical
misconduct of lawyers subject to discipline for incivility. This is most evident in the civility cases where the
discipline of the lawyer was warranted not because the lawyer was rude, but rather because of the nature of
his rudeness—to whom he was rude, the way in which he was rude, and the context in which the rudeness
occurred. The nature of the rudeness in those cases shows how the lawyer violated both his fundamental
ethical obligations of loyalty to the client and his duty to ensure the proper functioning of the legal system.

Being an ethical lawyer is challenging—not always, and not in every circumstance—but in general a lawyer
is required to strike the difficult but proper balance between competing ethical obligations so as to make the
best possible ethical decision she can. A lawyer must be loyal to her client, but she must also ensure that the
justice system functions effectively. She must be honest but must also keep confidences. She must be resolute
in her advocacy but also ensure that she does not interfere with the fair functioning of the justice system. She
must be competent but also ensure access to justice for the disadvantaged. Deciding what to do when those
obligations conflict with each other is difficult, and lawyers need all the guidance they can get: from
colleagues and the courts but also from law societies and bar associations. To focus on civility, which not
only fails to address these tensions but often flat out denies that they exist, provides no useful guidance for
the lawyer seeking to resolve them

V. CONCLUSION

In a recent column on the Sports Illustrated website, senior football correspondent Peter King had this to say
about former Atlanta Falcons coach Bobby Petrino, who quit his job near the end of a disastrous season in
order to coach college football:

Goat of the Week

… Idiot. Weasel. One day after having permission to speak to Arkansas

denied him by the man who hired him for $4.8 million a year last winter,
Petrino went ahead and talked to Arkansas anyway. Then he rode out of
Atlanta for Fayetteville under the cover of darkness.

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 … If the other coaches in the SEC [Southeastern Conference] use Petrino‘s
carpetbagging skullduggery against him, good for them. I hope it works.
That wouldn‘t be negative recruiting. It would be truthful recruiting.

No one would call this description of Petrino‘s conduct civil. But it is a fair comment, and it raises issues of
importance to the world of football that warrant discussion.

Lawyers should be free to make similar comments about each other, about the courts, and about the
functioning of the justice system. Hard-hitting and unvarnished critiques are essential to working towards the
justice system we should have, and to ensuring that lawyers play the role they need to play within that
system. Pursuing the impossible dream of a positive public image, or seeking to soften the discomfort of
hearing unpalatable and uncivil truths, is not required. What is required is strong and cogent debate about
how lawyers can be ethical—how they can balance the competing values inherent in the difficult but
fundamental role they play in a democratic society. The civility movement should be abandoned in favour of
this more difficult but ultimately more fruitful and important task.

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 Articles in Chapter C1. (Page 137 of the Note)

Topic: Ethics and Dispute Resolution: Counselling and

Negotiation

 Tales of Terror:
Lessons for Lawyers from the ‘War on Terrorism’

By David Luban.
in Kieran Tranter et al, eds., Reaffirming Legal Ethics: Taking
Stock and New Ideas (New York: Routledge, 2010) 56 at 60-61

An astonishing feature of the ―global war on terrorism‖ (GWOT) waged by the United States and
its allies against Al Qaeda is the prominent role played by lawyers, civilian and military,
representing both the US government and the people it has captured. The conduct of these lawyers
has been a topic of surpassing interest to many both in and out of the legal profession since the first
―torture memos‖ were released in 2004. It is a subject of international, not merely parochial,
interest. I will discuss the ―torture lawyers,‖ but also lawyers who represent the prisoners. Although
most of these are Americans, not all of them are. Some of the leading Guantánamo defense lawyers
come from the London-based organization Reprieve. One lawyer I want to discuss, Major Dan
Mori, of the US Marines, became a minor celebrity in Australia through his representation of David
Hicks. The laws at issue in these cases are by and large international law; and, of course,
Guantánamo has become an international symbol of the rule of law and its absence, a point central
to the debate.

[A dramatic example of the ethical obligation related to the advice a lawyer gives to his or her client arose
in the context of the United States government's dealings with detainees following the September 11,
2001 terrorist attacks. The government wanted to interrogate the detainees in as forceful and effective a way as
possible without violating international law related to torture. It sought opinions from senior lawyers in the
Office of Legal Counsel of the Justice Department. These opinions concluded that interrogative tech-
niques did not amount to torture unless they posed a threat of organ failure to the detainee.

The opinions were provided to a client that presumably wanted as much leeway as possible in obtaining
information from detainees in order to prevent further terrorist attacks and to capture the perpetrators of
terrorist attacks. The opinions have since been discredited as having significantly overreached the

215
 legitimate interpretations of what constitutes torture and they were ultimately disavowed by the Office of
Legal Counsel in 2009.

David Luban was one of the most vocal critics of these "torture memos", partly because of their content, but
also because, in his view, the lawyers who provided the advice to their client failed in their ethical duties as
counsellors and advisors.]

Are there lessons that lawyers can learn from this episode? The crucial question has to do with the ethical
obligations of lawyers in their role as confidential counsellors, or legal advisors, to their clients. Let me set
aside for the moment the most fundamental criticism of the Bybee memo, namely, that it enabled torture.
The more general criticisms of the memo are two: first, it stretched and distorted the law to reach the
outcome that the client wanted; and second, it nowhere indicated that its interpretations were outside the
mainstream. The principles behind these criticisms apply to lawyers in private practice as well as government
lawyers.

They are noteworthy criticisms, because they highlight the ethical distortion that results when lawyers bring
the neutral partisan role morality of courtroom advocates into the counselling role. After all, stretching the law
to reach the client's desired outcome, and disguising the fact that stretching is going on, are exactly what
advocates do every day in litigation and brief-writing. The major point, then, is that the role of the
counsellor and that of the advocate are fundamentally different. In the words of current U.S. ethics rules,
the counsellor is supposed to provide clients with independent and candid advice — telling the client what the
law requires even if that is not what the client wants. The reason for sharply distinguishing the advocate's
pro-client tilt in stating the law from the counsellor's more objective stance is straightforward. In adversary
litigation, whatever exaggerations a lawyer introduces in presenting the law can be countered by the lawyer on
the other side, and an impartial decision-maker will choose between the arguments. In a counselling situation, it is
just the lawyers and their clients, with no adversary and no impartial adjudicator. The institutional setting that
justifies an advocate's one-sided partisanship in setting forth the law is absent in the counselling role.

For that reason, the counsellor's rule of thumb should be different from the one-sided partisanship of the advocate.
It is to make your description of the law more or less the same as it would be if your client wanted the opposite
result from the one you know your client wants. That should be the litmus test of whether your advice is truly
independent, rather than result-driven by what you know your client wants. It seems clear that the torture memos
failed this test.

What should legal opinion writers do when they believe they have the law right and the mainstream has it
wrong? Here, it seems to me, the rule of thumb should be this: if your view of the law is out of the
mainstream, but you believe you're right, you have the responsibility to tell your client both those things:
what the law, on your own best understanding, requires; and the fact that your own best understanding is not
one that the legal interpretive community would accept.
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  The Jurisprudential Turn in Legal Ethics

By Katherine B. Kruse
(2011) 53 Arizona Law Review 493 at 494-95 and 504-05*

Clients come to lawyers to find out what the law requires, prohibits, or allows them to do. However, the limits
of the law are often unclear, and lawyers must exercise professional judgment in choosing how to explain
the law to their clients. ... [in counselling and advising their clients, lawyers are not merely transmitting
information about law but are playing a quasi-official role in shaping the "bounds of the law" within
which their clients operate. Although each lawyer-client consultation affects the life and affairs of only
one client, legal ethicists argue, the aggregate of these consultations determines the shape of law as it exists
in society. Lawyers thus play a lawmaking or law-interpreting role that is different from, but no less important
than, the role that legislatures and judges play in creating and interpreting law.

Legal ethicists have long recognized that the choices lawyers make in characterizing the law to their clients have
jurisprudential implications, but have only recently focused attention on theoretical analysis of lawyers' duties
to interpret the law correctly or appropriately.

--------------

The reliance on lawyers' moral judgments to supplement and limit the professional duty of partisan advocacy
creates significant tension with lawyers' role in the legal system. The permission given to lawyers to pursue
client objectives all the way to the "bounds of the law" is grounded in rule-of-law values that individuals
should be free to pursue their projects and objectives within limits set through open, public, and democratic
processes. When lawyers supplement these legal boundaries and curtail or withhold legal representation based
on their private and personal judgments about whether clients' projects or objectives are morally worthy,
society runs the risk of substituting the rule of law with the rule of an "oligarchy of lawyers". The tension
becomes especially acute in the context of a morally pluralistic society, where the promotion of a robust role
for morality in the lawyer-client relationship can become a license for lawyers to impose their personal
resolution of contested moral issues on their clients' life choices.

Although lawyers are not ethically prevented from providing moral advice to their clients, attempts to fashion
a professional duty to incorporate moral judgment into legal representation strain against the nature and purpose
of the lawyer-client relationship. ... [C]lients have only limited ability to assess their lawyers' competence and
diligence and very little information from which to ascertain the lawyer's personal, moral, or political views. ...

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When a lawyer takes on the goal of morally educating the client or making the client a better person through
moral conversation, the problems of lack of moral expertise, risk of moral overreaching, and threat to rule-of-
law values arise.

... Moreover, the incorporation of moral judgment into legal representation has the paradoxical quality of being least
effective in shaping moral outcomes in the situations in which it is acknowledged to be most appropriate. Legal
ethicists across the spectrum agree that the lawyer's moral management of legal representation is least appropriate
for clients who are vulnerable to moral overreaching by their lawyers due to their relative lack of power,
sophistication, and capacity to seek a second opinion from another lawyer. Yet they acknowledge that more
sophisticated and powerful clients are less likely to tolerate a lawyer's moral manoeuvring, either by brushing off
moral advice as irrelevant or by seeking legal representation from a lawyer who will provide representation free
of moral challenge.

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 Articles in Chapter C3. (Page 153 of the Note)

Topic: Government Lawyers

 Lawyering at the Intersection of Public Law and Legal

ethics: Government Lawyers as Custodians of the Rule of
Law.

By Adam Dodek
(2010) 33 Dal. L.J. 1 at 18-28
As a matter of public law, government lawyers should owe higher ethical duties than private lawyers because
they exercise public power ...

[Exercising public power] is what it means to be lawyers for the Crown because the Crown is the concept
that personifies the exercise of state power. As discussed below, government lawyers are not just passive vessels
implementing the instructions of their political masters. Government lawyers interpret, advise and advocate
on the powers and duties of the Crown. In so doing, government lawyers exercise public power. This exercise
of public power is therefore the key distinction between government lawyers and all other lawyers. This is
why it is an oversimplification, an understatement and is misleading to characterize government lawyers as
lawyers for an organization. The source of this heightened ethical duty is therefore to be found in public law,
specifically in the constitutional responsibilities of the Attorneys General.

All government Lawyers are agents of the Attorney General and under the Carliona doctrine, it is recognized that
the Attorney General can only fulfill the duties of the office through delegation to his or her agents.
Government lawyers' higher duty therefore derives from the duties and responsibilities of the Attorney General. That
office has a unique constitutional status in Canada. It has been described as "the guardian of the public interest"
or "the defender of the Rule of Law." ... [In Secession Reference, [1998] 2 S.C.R. 217 at para. 70. the Supreme
Court of Canada held that] "At [its] most basic level, the rule of law vouchsafes to the citizens and residents of the
country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for
individuals from arbitrary state action."

With this understanding of the rule of law, the case for the Attorney General as its defender becomes more
straightforward. The Attorney General has a statutory duty to "see that the administration of public affairs is in
accordance with the law." As former Ontario Attorney General Ian Scott explained,

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 the Attorney General has a positive duty to ensure that the administration of public affairs complies with the
law. Any discussion of the Attorney General's responsibilities must keep this fundamental obligation in
mind.

In the landmark 1968 McRuer Report into Civil Liberties in Ontario, Commissioner McRuer explained that

[t]he duty of the Attorney General to supervise legislation imposes on him a

responsibility to the public that transcends his responsibility to his colleagues in the Cabinet. It
requires him to exercise constant vigilance to sustain and defend the Rule of Law against departmental attempts
to grasp unhampered arbitrary powers, which may be done in many ways.

Government lawyers operate within a matrix of a rule of law triangle. Their higher duties are a result of
operating at the intersection of three axes: as delegates of the Attorney General, as public servants and as
members of the legal profession.

Attorney General

Government
Lawyers

Public Service
Legal Profession

The Attorney General has a clear duty to uphold the rule of law. At its most basic level, this requires the
Attorney General to ensure that all government action complies with the law. The Attorney General can only
fulfill this duty through his or her agents, government lawyers. Government lawyers therefore have a delegated
responsibility for fulfilling this public law duty. This is a critical point which distinguishes government
lawyers from other lawyers who do not have such an express duty to ensure that their client complies with the
law. While ethical codes prohibit lawyers from actively assisting or facilitating their client's commission of
illegal conduct, they do not generally require lawyers to prevent their client from committing illegal acts. As
delegates of the Attorney General, government lawyers have an affirmative duty that extends far beyond this
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minimal general duty of all lawyers. Government lawyers must ensure that all actions of government comply
with all laws: civil, criminal and administrative. The ramifications of this duty are discussed below.

As public servants, government lawyers also have a duty to uphold the rule of law. As Chair of the Task Force on
Public Service Values and Ethics, former Deputy Minister of Justice John Tait, Q.C. explained:

One of the defining features of public service organizations, especially in Canada, is that they are established
under law and have as one of their chief roles the administration and upholding of the laws of Canada. In order
to do this well, the public service and individual public servan ts should be animated by an unshakable
conviction about the importance and primacy of law, and about the need to uphold it with integrity,
impartiality and judgement.

Elsewhere Tait asserted that public servants must remember some of the basic purposes of government "such as
democratic accountability, the rule of law, and fairness and equity". In short, all public servants have a duty
to uphold the rule of law and government lawyers qua public servants share in this duty.

As lawyers, government lawyers are part of a profession devoted to the Rule of Law, but the perspectives
of the profession and of Government are different. As the Law Society of Upper Canada's Task Force on
the Rule of Law and the Independence of the Bar asserted, "{a]n independent Bar works in tandem with an
independent judiciary in the implementation of the Rule of Law." The conceptual problem for government
lawyers is that at first glance their position as lawyers for the government is inimical to most conceptions of
an independent bar. These include the notion that lawyers are able to put their clients' interest first without
fear of constraint especially by the state. It also includes the asserted "right of the public who need legal
assistance to obtain it from someone who is independent of the state and can thereby provide independent
representation". The other element of independence of the bar that is problematic for government lawyers is the
idea of independence from client control: lawyers "should have autonomy to decide which clients and causes
to represent and how to conduct that representation", As members of the legal profession, government lawyers
are part of a profession dedicated to preserving the rule of law; however in the work that they do as government
lawyers, the bar's conception of independence does not accurately describe their work.

When the three elements of government lawyers' identity — public servants. lawyers and delegates of the
Attorney General — are combined, the unique relationship between government lawyers and the rule of
law begins to appear. The core meanings of independence for the bar involve independence from the state,
either in terms of interference with the lawyer-client relationship by the state or in terms of regulation by
the state, For government lawyers, their client is the state. And as lawyers for the state, government
lawyers are not only tasked with ensuring that the state and its officials comply with the law, but they are
also involved in creating law in a way that private sector lawyers are not. Government lawyers are involved in
protecting the rule of law from the inside. Moreover, what fundamentally distinguishes government lawyers
from their non-government counterparts is that they exercise state power.

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Government lawyers exercise state power in everything they do. There are some who will challenge this
assertion and claim that government lawyers do not exercise state power but rather they represent the interests
of those who do. This assertion fails to adequately capture the nature of government lawyers' work. We
no longer live in a legal culture dominated by formalism where we believe that legal reasoning is the
process of finding one true ―correct" answer. Rather, we have come to acknowledge the indeterminacy of law
and to acknowledge that there are subjective influences on legal interpretation. Government lawyers who are
advising their clients on the law exercise power given to them under law. In many cases, they exercise
significant discretion in providing legal advice. The act of giving legal advice, of interpreting the law, is
itself an exercise of power. It can have a broad impact on people's lives — sometimes equal to or exceeding that
of a Crown counsel in a criminal prosecution. Nowhere is this more the case nor more important than in the area
of human rights and constitutional law.

The American example of the torture memos is the best example of the powerful impact that legal advice
can have on people's lives. The act of legal interpretation can be used to constrain or to authorize power. In this
instance, government lawyers used the law not as a constraint on power, but as "the handmaiden of
unconscionable abuse." In the words of legal ethicist David Luban, the government lawyers spun their legal
advice because they knew that "spun advice" is what their clients wanted. Lawyers in the Office of Legal Counsel in
the Department of Justice interpreted law to authorize a host of heightened interrogation methods which most
people would identify as torture. Moreover, lawyers in the Office of Legal Counsel used legal interpretation to
create an entire category of persons who would not be protected by the rule of law (enemy combatants) and their
advice supported the attempt to create a rule of law-free zone (Guantanamo). While this American example may
be extreme, an important Canadian example demonstrates how the act of legal interpretation is itself an exercise of
state power.

Under the Canadian Bill of Rights, the Minister of Justice is required to examine every draft regulation
and every government bill introduced in the House of Commons "in order to ascertain whether any of the
provisions thereof are inconsistent with the purposes and provisions" of the Bill of Rights and the Minister
"shall report any such inconsistency to the House of Commons at the first convenient opportunity." An
analogous provision of the Department of Justice Act requires the Minister to examine every draft
regulation and every Government Bill introduced in the House of Commons

in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and
provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such
inconsistency to the House of Commons at the first convenient opportunity.

Since 1960 when the Canadian Bill of Rights was enacted and since 1982 when the Charter was enacted,
there has never been a single report made to the House of Commons by any Minister of Justice. Some
think this is negative while other are less concerned about it. Here my point is that every time a decision is made

222
not to make a report to the House of Commons, there has obviously been an act of interpretation. Indeed, this
was made clear when a Department of Justice lawyer disclosed at a house committee that the standard used
to trigger the reporting requirement was "manifestly unconstitutional". This phrase is itself an act of legal
interpretation and a highly discretionary one at that. If lawyers in the Department had chosen a standard of
"arguably unconstitutional", it is likely that many more bills would have been reported as under these
provisions. This could have had a very different effect on legislation and the relationship between the courts,
the legislature and the executive, to say the least of the potential impact of such legislation on affected groups.

These arguments for the higher duty of government lawyers as custodians of the rule of law are supported by
existing duties of the Crown in other areas. government statements and some judicial pronouncements. In fact,
if we examine the conduct expected of government lawyers, we find that they are already subject to a higher
duty than private lawyers. The standards of conduct expected of government lawyers in areas outside of
criminal law demonstrate that there are a whole host of areas where a higher duty is expected of
government lawyers. Outside of criminal law, there are other areas where the Attorney General is expected
to act independently, that is without political considerations or involvement. These include public interest
injunctions and interventions. Other areas where the Attorney General represents the public interest
include paresis patriae jurisdiction, child protection, expropriation and charities. In Aboriginal Law, the
honour of the Crown doctrine requires the Crown to consider Aboriginal interests in dealings with
Aboriginal peoples.

When government lawyers are dealing with vulnerable parties who are represented by counsel, a higher
standard of conduct may be expected of them than if the case simply involved two private parties. Thus, in
the public inquiry into wrongful conviction of Donald Marshall, the Commission was critical of how the
government handled the negotiations with Mr. Marshall's counsel over compensation. Counsel for Nova Scotia
negotiated what would objectively be considered a good deal for the government to settle Mr.
Marshall's claims for the sum of $270,000. However, the public inquiry. did not view it in this manner. The
Commissioners did not analyze government counsel's actions through the traditional paradigm of the
adversarial model of litigation. Instead, the Commission stated that the Deputy Attorney General "should have
realized that the Donald Marshall, Jr. compensation question was not merely a routine piece of civil litigation
and the question of fairness needed to be considered. It was not." No further explanation was given as to why
this was not an ordinary piece of civil litigation. If it was because of Crown wrongdoing, then the Commission
did not make clear why counsel for the Crown owed a higher duty than in other cases of Crown
wrongdoing.

In essence, when we put aside the situations where it is recognized that government lawyers do owe
higher duties, we are left with two types of government lawyering activities: civil litigation against a non-
vulnerable party and advisory functions, including legislative drafting and policy development. In

223
ordinary civil litigation, government lawyers often do not behave like their private counterparts. For example,
in the area of costs, the Crown routinely foregoes its right to seek costs against the losing party in litigation
or seeks significantly less in indemnification than what a private party would.

A more recent decision addressing the conduct of government lawyers against a non-vulnerable party is perhaps
more illuminating than the Hickman Inquiry's statements regarding government counsel's conduct vis a vis
Donald Marshall. In a decision unsealed in 2010 involving the disclosure of a privileged report, Justice
Michael Code of the Ontario Superior Court of Justice made the express connection between counsel's
conduct and the government's duty under the rule of law. According to Justice Code, it is not enough for a
public sector lawyer to take an adversarial stance in litigation because opposing counsel's argument is not
well-framed. The government lawyer has a duty to ensure that the government complies with the law: "the
importance of the rule of law as constitutional precept in Canada does not permit this approach to public
administration at any level of government." Justice Code's statements involved the conduct of a lawyer for the
City of Toronto. They have stronger force in the case of lawyers for the provincial or federal government
because of the constitutional responsibilities of the federal and provincial Attorneys General.

If the statements of Justice Code are representative of a wider judicial attitude towards government lawyers, it is
likely that many judges expect more from government counsel even in ordinary civil litigation cases
where the adversary is a well-resourced private lawyer. 1 would suspect that many government lawyers
similarly hold themselves to a higher standard and take very seriously the moniker that they are lawyers for
the Crown. In fact, the mandate, mission and values of the Department of Justice provide that its lawyers
should "provide high-quality legal services" while "upholding the highest standards of integrity and
fairness." Thus, the official policy of the Department of Justice would seem to support the idea of a higher
duty. In policy and in practice, government lawyers are committed to a higher duty and not simply to the
minimal standards of ethical conduct prescribed in law society rules.

+++++++++++++++++++++++++++++++++++++++++++++++++++++

 Professionalism and the Public Interest

By Malliha Wilson, Taia Wong & Kevin Hills

(2011) 38 Advocates' Q. 1 at 14-17*
Dodek argues that government lawyers are subject to a higher ethical duty because they operate at the
intersection of three axes ...

But the fact of operating within that matrix does not necessarily or easily
translate into higher ethical standards for government lawyers. In litigation against major corporate or
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institutional litigants, for example, wouldn't the public interest be best served by government lawyers who avail
themselves of whatever arguments they can within the bounds of the law in order to aches the government's
goals? The matrix within which government lawyers operate may indeed be unique, but it is not monolithic.
Instead, government lawyers advise on and litigate a wide range of matters involving a broad spectrum of
litigants. Imposing higher ethnic duties on government lawyers without regard to the diversity of their practice and the
nee and obligations of the ministries and agencies they serve would impede the delivery of legal services in government.

Moreover, Dodek's suggestion that government lawyers owe a higher ether duty as a result of their exercise of
public power is difficult to reconcile wt.! government decision-making processes involving significant
matters. which only certain public officials have the legal authority to decide matte 7 on behalf of the
Crown. These public officials wield and exercise pub power, not the government lawyers who advise them.
The government laws provides legal advice on proposed courses of action that government officials may wish to
take, but he or she does not have decision making authority either directly or indirectly, as legal
considerations are only one factor. alone. with policy and political considerations, that influence official
decision-making.

While it may be true that, as Dodek suggests, government lawyers exercise discretion in providing legal advice
and that the act of giving legal advice. of interpreting the law, is itself an exercise of power, that discretion and
power is circumscribed by the institutional and constitutional confines within which the government lawyer
works. The role of the government lawyer is to state what the law is, thereby enabling the Attorney General
to discharge his or her obligations to defend the rule of law and safeguard the public interest In a
democratic, post-Charter society, government lawyers cannot decide what constitutes the public interest and
enforce the rule of law themselves by pre-emptively acting inconsistently with the legitimate goals of a
democratically-elected government, particularly when their advice is cloaked in secrecy and protected by solicitor-
client privilege. Rather, government lawyers are responsible for empowering the Attorney General to discharge his or
her responsibilities of upholding the rule of law and protecting the public interest by providing advice that is
thorough, balanced and independent of partisan political consideration. The suggestion that government lawyers owe
higher ethical duties because they exercise public power therefore collapses the roles of the government lawyer and
the Attorney General, when in fact constitutional norms, the institutional hierarchy of government and
democratic ideals require their separation. The government lawyer's job is fundamentally to give the best legal
advice about what is required by the rule of law. There is no need for a higher ethical obligation for that to occur.

Some legal theorists have taken the fact that regulatory codes are silent on the
difference between government lawyers and private counsel as an indication that the expectations of the
former are not substantially different than those of the latter. Other theorists have suggested, however, that even
where a higher standard of conduct is not contained in extrinsic codes of conduct, it is nevertheless derived
intrinsically from the position of a government lawyer as a public official. They argue that the oath of loyalty

225
taken by government lawyers, to the Crown and to the public interest, along with the public interest obligations
inherent in their office, is enough to elevate the standards of ethical and professional conduct by which
government lawyers must govern themselves.

These theorists reason, as did the motions judge in Everingham, that there is a positive obligation on government
lawyers to advance the public interest in litigation and to seek a fair result beyond the interests of their
government client. As representatives of a sovereign whose interest is to seek justice, these theorists reason that
government lawyers must also seek justice. This mandate could require a government lawyer to not bring
forth unmeritorious or undeserving cases, exploit legal or factual errors made by the court or the opposing
party, call attention to mistakes or take advantage of procedural lapses without regard to the actual merits
of a party's position. For such theorists, seeking justice could also mean disclosing confidential information
if it were in the democratic interests of preserving open and transparent government.

According to these commentators, the key difference between the government lawyer and the private lawyer is that
the government lawyer serves the public interest exclusively, if indirectly and derivatively, over and above any
private interests. The public interest, however, is a concept that is itself amorphous, representing a plurality of
interests and conflicting values. It is therefore difficult to translate the service of such dynamic interests into
clear ethical obligations. Moreover, some commentators suggest that the way in which government lawyers
ultimately interpret their role with respect to these obligations to the public will no doubt influence the types
of arguments that they make and the litigation strategies that they employ, such as asserting technical defences
to defeat meritorious claims, accepting erroneous court decisions and pursuing costly litigation of questionable
merit for political purposes. For instance, Catherine Lanctot has argued that the public interest is sufficiently served
by government lawyers advocating the interests of their agency clients with the same zeal as private counsel:

If the bar truly believes its own rhetoric that zealous advocacy on behalf of a client serves the highest purposes
of the American justice system, and if the bar expects government lawyers to "seek justice," then logically
the bar should demand of government lawyers that they be at least as zealous as their private counterparts,
if not more so.

Accordingly, there is no need for additional, elevated standards of ethical conduct in order for the public interest to be
served. Government lawyers serve the public interest by representing "their clients to the best of their ability, asserting
whatever arguments they can in order to achieve their clients' goals."

+++++++++++++++++++++++++++++++++++++++++++++++++++++

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  Lawyers Representing Public Government and a Duty of
‘Fair Dealing’
By Brent Cotter
Canadian Bar Association, Alberta Law Conference (March 2008)
Introduction

The aim of this short paper is to give broad brush consideration to the ethical framework of lawyers in government
service, and those retained to represent governments, and to suggest that this framework differs in one
significant respect from that of lawyers in private practice. This difference is based on the nature of the
client — public government — and on certain unique responsibilities of that client. I argue that these
unique responsibilities inform the ethical obligations of lawyers in their representation of government
interests and impose upon those lawyers "public interest" responsibilities in ways that are noticeably different
from those of lawyers with private sector clients.

Some commentators have claimed that lawyers retained to represent government are required to serve the
"public interest"; or that their client is "the public". I argue that while there is a set of public interest
obligations imposed upon these lawyers, the idea that one "serves the public interest" is a vacuous concept, and a
potentially dangerous one if "public interest" obligations are not given a clear framework. Equally, the idea
that the government lawyer's client is "the public" amounts to an operational impossibility in any conventional
understanding of a lawyer's role and responsibilities. As a lawyer, try to imagine taking instructions from "the
public", or honouring one's obligations of confidentiality to "the public". Just stating the circumstance exposes
the absurdity of the concept.

Rather, I argue that such a lawyer does have a client in the conventional way, but in the representing public
government, the lawyer owes obligations to the community of interest in opposition to the government —
obligations that are not owed by lawyers for private clients. These greater obligations derive their shape from the
duties owed by the government itself to the public interest. They can be articulated in general ways, though I
readily concede that it may not always be easy to fulfill them perfectly. I shall call this set of responsibilities the
"duty of fair dealing", and try to give it some preliminary shape.

The Conventional Paradigm

The standard conception of a lawyer's representation of a client is that this representation is significantly
"client-centred". This orientation, and the lawyer's concomitant duty of loyalty, is certainly the governing
paradigm in the representation of private clients. This orientation reinforces the entitlement of the client to
pursue actions favourable to himself or herself, with the aid of a lawyer, despite the consequences for
others. Indeed, the only limitations suggested to qualify this pursuit of self-interest are that the
objective and the means used to pursue it not be unlawful or require the lawyer to engage in unethical
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conduct. Indeed, from a lawyer's perspective, the adversary system — a civilized conflict between adversaries
in the pursuit of interests at odds with one another — relies on this contest of self-interest to justify
conventional lawyering roles in many of our legal and judicial processes. In large measure this
approach is based on the sense that the individual entity owes a duty only to himself or herself or itself. The
lawful pursuit of enlightened self-interest is a central tenet of our society and of the consequent design of our legal
system.

The Nature of "Representational Entities"

Is this orientation appropriate for "representational entities"? By representational entities, I mean those
organizations with a different purpose than the pursuit of self-interest. Organizations that seek to "represent" the
interests of a larger community with one or many objectives related to the community of interest it seeks to
represent.

There are many types of "representational" entities. In certain respects corporations are representational.
Many organizations designed to advance the interests of their members have a "representational" dimension.
And it is surely the case that public government has a representational dimension.

Indeed, one might argue that its "representational" role — the representation of the interests of its citizens — is
the raison detre for public government to exist. To get at the question of the role and responsibilities for a
government lawyer, it is necessary to consider the question of who exactly does the `representational'
entity, government, represent.

This appears to be a straightforward question. The conventional understanding is that public government
represents all of its citizens. As a consequence the conventional understanding of the ambit of legal and
ethical duties naturally extends to "all citizens" — the public, from which it is argued that lawyers representing
public government therefore represent "the public" or "the public interest". This concept presents two significant
problems. One is practical. It is pretty much impossible to consult or take instructions from "the public" or "the
public interest", except through some legally authorized representative of "the public". It also goes without
saying that some of the standard understandings of a lawyer's duties would be rendered meaningless if one is
required to consider "the public" to be the client. It also renders meaningless the significance of
"representative government", as the entity which actuates the public's wishes. To assume that the lawyer
owes client-like duties to "the public" or "the public interest" makes a mockery of representative
government and invites the lawyer to determine what the public interest is. Surely no one contemplates this
outcome.

A second difficulty is the one related to the complicated nature of government itself. One of the critical
responsibilities of governments is to make choices among scarce public resources in pursuit of public policy

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objectives. By definition, this involves a choice between or among competing interests, as a consequence of which
not all of the citizens will be satisfied all of the time. Similarly, governments have a duty to protect taxpayers'
resources, in the form of government revenues and government assets, from claims upon them, even from their
own citizens. This may require a choice on the part of government to protect the collective interests of
citizens against the claims of one individual citizen. These situations will often lead to conflict between the
government and its representatives, on the one hand, and one or more of the citizens it exists to represent. These
conflicts may arise in a variety of forms and forums. Legislators may be required to choose among
conflicting legislative approaches. Decisions will be made to use the financial resources of the government
in ways that embrace some policy choices and that reject other choices. The government will choose to
acknowledge some citizens' claims and resist the claims of others. The representatives of public government
will be called upon to make these choices and to direct their agents, including lawyers, to pursue the choices,
resist the claims, as the representatives deem appropriate.

From this set of examples it is clear that the government in its representative capacities will of necessity place itself
in conflict with individual citizens or groups of citizens. This happens to individuals and private actors all the time.
When it does occur, within the limits of law and the moral choices of the private actor, self-interest is
entitled to prevail without any special consideration of the interests of the "other". Is this the case with public
government in terms of duties owed to the "other" citizens with whom it is in conflict? Is there a particular set
of obligations owed to those who are part of the collective, representational interest of government but who
are also its adversaries in one or other context?

I argue that governments do owe duties to that "other". To take a different view would require us to accept
the proposition that a citizen in conflict with his or her government is somehow diminished in his citizenship
by virtue of the conflict. This does not mean that government is somehow required to accede to the claims of
citizens in conflict with government. Rather, the real question is the nature of the duties owed by the government,
as a "representational" entity, to the members of its "representational" community with whom it might be in
disagreement or conflict. It is here that I believe the roles and responsibilities of a lawyer representing public
government diverge from those of a lawyer representing a private interest.

The Dimensions of this "Representational" Duty

I propose to examine the nature of this duty from the perspective of a citizen in a legal conflict with his or her
government. It is often the case that citizens make claims upon governments that are not well founded in law, or
that are in direct conflict with the policy direction that the government wishes to pursue. In these situations
governments are surely entitled, on behalf of the collective interest of their citizens, to resist these claims, to stay the
course. Sometimes, however, citizens make claims that are entirely or at least partly well founded. Is government
entitled, in advancing the collective interest of their citizens, to resist the legitimate claims of its citizens? The

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answer in my view is "no". I make this assertion from two perspectives; first, from analogies drawn from the
criminal law and the responsibilities owed by public prosecutors to defendants in criminal proceedings;
second, from the perspective of a set of duties owed by representative governments to its citizens.

(a) The Public Prosecutions Analogy

Prosecutors represent the state in criminal proceedings. They are legally styled as "agents of the Crown".
Their role is to review and prosecute allegations of criminal conduct. They are required to do so in the
pursuit of fair and just outcomes. This requires an assessment of whether there is sufficient evidence in a
case to justify laying charges or proceeding with them, and an assessment of whether the public interest is
served in pursuing the charges. As a matter of policy, and perhaps law, prosecutors are not entitled to
proceed with charges that do not meet this standard. As well, as a matter of good policy and law [R. v.
Stinchcombe] prosecutors are required to disclose to the defence all relevant information in relation to the
criminal proceedings, whether it helps or hurts the prosecution's case. This is intended to ensure that a person
who is the subject of a prosecution gets a fair trial. It is part of the obligation placed upon the Crown of 'fair
dealing' with its citizens in criminal proceedings. This has the consequence of ensuring full disclosure of
everything relevant to a prosecution, and of ensuring that, as far as a system can do so, the Crown
acknowledges and concedes everything in an accused person's favour that should legitimately be
acknowledged or conceded in a proceeding, to ensure that justice is done.

Criminal cases have potentially serious implications for those who are accused of crimes, and in that sense
may require certain values — including constitutional values — to be given priority; values that are not
directly implicated in other proceedings between the Crown and its citizens. However. the consequences for
citizens of a wide variety of non-criminal dealings with government are likely as profound as many criminal
matters. Is a citizen any less entitled to this standard of fair dealing because the matter does not involve
criminal proceedings against him or her? Or because the conflict between a citizen and the government does
not involve a court proceeding?

(b) A Duty of "Fair Dealing"

The government serves in a "representational" capacity with respect to all of its citizens. Indeed, we often
refer to our form of government as "representative government". This "representativeness" includes those who
support its policies and those who oppose them. It includes those who may benefit from the political choices
politicians and governments make, and those who are adversely affected. And it includes those who may be in
legal conflicts with the government. A "representational" entity, and particularly government. understandably
owes a duty to the collective interest of all of its citizens. With respect to government, this may require the
government to do its best to ensure that chosen public policies are not derailed, or that illegitimate claims upon
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the public purse are resisted, or that other actions or claims seen to be contrary to the public interest are
opposed. These are all perfectly legitimate, even required, roles for a government to undertake. And as a general
rule they benefit the public interest as defined at the time.

But what duty is owed to the claimant in opposition to the government. In this respect the government, as a
"representational entity", is in a different position from others. One aspect of that "representativeness"
includes a duty to the very citizen who brings the challenge, or makes the claim, against his or her own
government. What is the nature of that duty?

I argue that at the very least it requires a standard of "fair dealing" with its citizens in these positions, a standard
that exceeds the requirements of private persons. This governmental standard of fair dealing should, for
example, exceed the minimum requirements one finds in legal proceedings. Aside from making the disclosures
required by law to claimants, it should include admitting what should reasonably be a dmitted,
conceding what should reasonably be conceded, accommodating what should reasonably be accommodated. In
its "representational" duties to one of its citizens with whom it is in conflict, a duty of fair dealing requires
nothing less. This requires the accommodation of the legitimate interests of citizens whenever those interests
are reasonably known to be legitimate.

This does not mean that governments must accede to any allegation made by a claimant, or acquiesce in the
face of every challenge to its policies. To do so would subjugate, illegitimately, the representative responsibilities
of government to its larger public interest. I concede that in some cases the role of a government's legal
representative will be difficult in trying to ensure a fair outcome without giving away too much, and being
constrained in the use of certain legal tools available to the private litigant. It does require however, that in
the interests of legitimate claimants the larger public interest defers to and accommodates these legitimate
claims. Not grudgingly, but in a fair and timely way. In this way, "fair dealing" with its citizens does not detract
from the representative nature of public government. Rather, it advances and enriches it for all.

Conclusion

There is a fundamental "public" value at stake here that does not have the same resonance when conflict
arises between private claimants. Simply put, largely un-moderated self-interest — justified within our systems of
dispute resolution for private disputants — has no place in where a government finds itself in conflict with its
citizens. Governments owe "just" outcomes to all of their citizens, including the ones with whom they are in
conflict. This can only be achieved through a moderation of zealous advocacy, in much the same way that
this moderation is required in criminal prosecutions in order to achieve just outcomes. Governments, and their
lawyers, owe to their citizens a duty of fair dealing.

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 Articles in Chapter C4. (Page 157 of the Note)

Topic: Lawyers in Organizational Settings: Corporate Counsel

 Professional Responsibility and the Corporate Lawyer

By Milton C. Regan, Jr.

(2000) 13 Geo. 1 Legal Ethics 19T

[C]orporate law practice continues to raise important and complex questions of professional responsibility
that have implications or all lawyers. In the most immediate and concrete terms, changes in corporate use of
legal services

In the past twenty – five years or so have dramatically altered relationship between law firms and clients.,
partners and associates, partners and partners and among law firms. Increased reliance on in-house legal
department has brought inside the corporation much work that previously served as the foundation of long-
term relationships between flans and clients. Corporation now tend to seek specialized expertise rather than
general services from outs; counsel. They also exert more vigorous controls over how those services are
provided and how they are priced.

Aside from the importance of corporate practice for the ways in which modem legal services are provided,
certain features of that practice are notable for the important ethical issues that they raise. First are the
complexities of representing an organization rather than an individual. That undertaking can be especially
daily challenging because ethical provisions for the most part implicitly are premised on a relationship
between an attorney and an individual client. The who represents a corporation represents an abstraction:
her client is the corporate entity rather than any of the individuals who act on its behalf Such lawyers deal
daily with managers and officials who are authorized to speak for the corporation, yet they must not mistake
those individuals for the entity itself. Even in the normal course of events, actors in a large organization may
not be in full agreement on various matters. Lines of authority are not always clear; the organization chart
may obscure as much as reveal who wield power and influence. The lawyer thus often must become familiar
with the dynamics of the bureaucratic milieu in order to discern just which actors speak for the Corporation
on what issues.

The difficulty is compounded when there is reason to question whether an official is acting in the best
interests of the corporation. Ethnical provision along with the business judgment rule, suggest that the lawyer

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should defer to the manager in most instances, even when she might have charted a different course under the
circumstances. That presumption of deference evaporates However, when the lawyer knows that a corporate
official is violating A duty to the entity or is acting illegally so as to threaten the corporation with serious
harm. The problem is that this transformative moment can be quite difficult to recognize. One reason is that
knowledge often is fragmented in large modern organization. Information sufficient to ensure that a lawyer
‗knows‘ of misconduct may be scattered among several offices and people., no one of whom has the complete
picture. It is tempting in such situations to conclude that one ha', the certitude necessary to challenge the
corporate decision-taker, even when such ignorance is the product of diligent avoidance of unpleasant facts

.....

In sum it is increasingly the case that lawyers in many kind of modern practice represent organizations
rather than individuals. Such a phenomenon calls For a more sophisticated understanding of the
organizational milieu and the a distinctive ethical issues that It generates. Corporate lawyers have significant
experience with such representation, and often are acutely aware of how little guidance ethical rules cart
provide in this setting. A focus on corporate practice thus can generate insights that are becoming important
for an ever larger proportion of lawyers.

A second disjunction between corporate practice and ethical rules is the Fact that the latter traditionally
have been formulated primarily with the litigator in mind. Yet transactional work, a staple of corporate
practice, raises questions that do not always fit easily within this paradigm. Should a party with whom the
lawyer Is negotiating a joint venture, for instance, be regarded more as an adversary or as a cooperative
partner? The answer may be important in determining the attorney's duty of confidentiality, as well as in
identifying conflicts of interest that could arise from simultaneous or successive representation of other
clients.

A third notable dimension of corporate practice is the fact that many corporate lawyers not only represent
organizations, but are employed by them. The widely-noted rise in the visibility and prestige of inside counsel
in the last two decades or so has fueled the continuing debate over the meaning of lawyers' professional
independence. Here again, corporate lawyers have firsthand experience with a growing phenomenon: the
increasing number of lawyers who are employees in various types of organizations. To what extent is ii
possible to preserve a sense of identification with a distinct professional legal culture while being immersed
in an organizational culture as well? Is it easier to invoke ethical constraints on company conduct if the
lawyer is familiar With corporate operations and is regarded as a member of the "team?" Or does her
dependence on a single client who is her employer tend to make her excessively deferential toward company
officials?

many lawyers and commentators suggest that in-house counsel are in a Position to provide a unique
combination of business and legal advice that helps the organization plan for, rather than simply react to, a
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tumultuous global economy. Rather than merely passing judgment on the legality of measures that
management proposes, counsel help frame strategy with an eye toward anticipating and preventing legal
issues from arising in the first place. This ―proactive‖ approach to practice expand the boundaries of legal
practice to include function not traditionally characterized as strictly legal in nature. it also calls into
question the traditional assumption that the client determines the end of representation and the lawyer select
the means to achieve those ends. This dichotomy generally is an important Premises of ethical rules, which
conceptualize the lawyer as distant from the substantive objectives of the clients. If in-house counsel do
indeed become integrally involved in formulating company goals and structuring company operations, it may
be unrealistic to insist they nonetheless remain legal technicians morally unaccountable for the consequences
of those activities.

Another development in which corporate lawyers are the advance troops is the increasingly global nature of
law practice. National boundaries pose no obstacle to modern corporate activity. A parent firm may be in
one country, its subsidiaries in several others; and its joint venture partners or licensees in still others.
Furthermore, its products and services may well be available in most countries around the world. Corporate
counsel may have her office in New York, consult long distance about Italian law with a subsidiary in Italy
that is entering into a licensing agreement with a South African company, or travel to Japan to negotiate
with a Japanese bank about financing for a project that will engage in manufacturing in several Asian
countries and sell its products mainly in North America and Western Europe.

Aside from the need to master the interplay among the substantive legal provision of the different
jurisdictions that may assert an interest in such corporation activities, counsel also must navigate through a
thicket of differing and sometimes conflicting rules that purport to govern the conduct of lawyers, there is no
common set of ethical provisions that apply to lawyers engaged in cross-border practice. Indeed, there is no
uniform definition of what constitutes the practice of law in various countries, or of what Is permissible
activity for foreign lawyers who are authorized to practice in a jurisdiction. once the threshold issues are
resolved the lawyer must determine which country‘s ethical standards - and standards of malpractice
liability – are applicable. An example of the striking differences that can exist between legal regimes is the
Court of Justice of the European Communities‘ decision that in proceedings brought by the European
Commission the Attorney – client privilege may not be invoked with respect to communication between a
client and its in-house counsel. The difficulty of reconciling ethical obligations under different state regimes
in the United State already creates unpredictability for the large number of lawyers engaged in multistate
practice. That complexity is magnified exponentially in the arena of transnational practice, and corporate
lawyer are the ones who increasingly must respond to it .

The fact that corporate lavers are strategically placed in positions of influence with respect to regulated
activities has led some to maintain that they have an obligation to serve as "gatekeepers" who restrain

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misconduct or even "whistleblowers" who report it Such roles are in tension with the notion that the
attorney's sole obligation is to the client, and the claim that self-regulation by the legal profession offers the
best assurance of ethical legal practice.

How corporate lawyers present legal provisions to their clients, and how far they are willing to push the
letter of the law regardless of its spirit, cumulatively has the potential to have a profound effect on attitudes
toward the legal system. Performance of this quasi-public role means that lawyers at time may have to
prevail on their clients to forbear from exploiting every possible legal advantage, for the sake of both the
client's long-term interest any that of society as a whole. The distinctive function and influence of business
corporations in a market democracy thus means that the corporate lawyer Work unavoidably has both
private and public dimensions whose tensions al not always easily mediated.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

 Corporate Counsel as Corporate Conscience:

Ethics and Integrity in the Post-Enron Era

By Paul D. Paton
(2005) 84 Can. Bar Rev. 533

The transformation of corporate, or in-house, counsel practice in recent years has rightly garnered considerable
attention. Once considered by some to be the refuge of those unable to sustain the intense pressure of a private
major firm practice, an in-house lawyer now occupies a privileged position in the -corridors of power". The
misperception of corporate counsel as lawyers lacking the "stern stuff required to fill the vast quotas of
billable hours and sustain the great partnerships", and occupying "the lesser part of our profession" is mercifully
in decline. Moves of senior practitioners in Canada from private law firms to prominent general counsel positions
at major Canadian corporations, as well as similar transitions at more junior levels, have signalled that corporate
counsel positions are increasingly attractive as a career option for ambitious lawyers‘ and that in –house posts
are providing both compensation and levels of sophistication sufficient to challenge the cream of the
profession. Several American studies have tracked the transformation of the in-house stereotype over the last
forty years: from a lawyer who, having been passed over for partner, left private practice to do ―routine,
repetitive corporate work, while everything interesting was farmed out to private firms‖ to a near-total
reversal, with corporate counsel managing major transaction, complex litigation, and hiring outside lawyers
only on an as-needed basis. A seminal 1985 U.S. study asserted that a ―new breed of general counsel has left

235
this stereotype behind. Not only have the office grown in size, but in importance as well. The General
Counsel sits close to the top of the corporate hierarchy, as a member of senior management."

In a post-Enron era the tensions and demands on in-house lawyers to ensure compliance with new corporate
governance rules and shifting internal and external requirements and expectations of regulators, directors,
officers, shareholders, employees, pensioners, and creditors have made the role of in-house counsel an even more
important and ethically complex one. This has prompted some caution amongst those considering a move in-house.
Beyond simply managing litigation, the emphasis in ethics and compliance positions in-house has been described
as "more strategic than tactical". In-house counsel now have a role that extends beyond providing technical legal
services and litigation management into matters at the heart of proper governance of organizations. Building on
whatever experience they have ordinarily gained in a variety of private practice settings, in-house lawyers
layer focused legal knowledge with the broader insight into a client or corporate environment that a perch
inside an organization affords. That poses unique ethical challenges for lawyers seeking to maintain
professional integrity within the confines and constraints of their corporate client, particularly as they typically
occupy multiple roles within the organization.

The professional and ethical failings of those in-house counsel involved in the Enron scandal have been the subject
of particular attention, but lawyers were involved in most of the major corporate scandals now synonymous with
corporate governance reform in the United States — Tyco, Worldcom, Adelphia. Global Crossing, Qwest,
Dynegy, Vivendi, Sprint and HealthSouth. These scandals are significant not only for the fact of internal and
external lawyer involvement, but as the impetus behind major U.S. reforms, including a direction from the U.S.
Congress in the Sarbanes-Oxley Act of 2002 to the Securities and Exchange Commission (SEC) to develop
standards of professional conduct for attorneys.... The development of these standards has already had, and
will continue to have, a significant impact on both U.S. and Canadian in-house lawyers.

Focusing on work in legal ethics that takes "account of the particular contexts in which lawyers practice" is
both necessary and important. As one British study has noted, while "core values" "may survive at a symbolic
level, their role as a starting point for the formulation of detailed rules of professional conduct may become
more difficult to sustain as the discreet arenas which help shape ethical norms and form the context of
regulation become increasingly diverse."

Practising with integrity in an in-house position, whether in the private or public sector, has always
required special skill; but along with the advantages of the insider's perspective come particular challenges. The
fact of having one client the corporation or the government — means that an in-house lawyer is particularly
vulnerable when there is challenge from within the organization.

Telling senior officers "no" to their proposed plans and schemes may be the right legal and ethical answer, but
it can bring a particularly high price, especially if the lawyer finds that he or she has to exercise the ultimate
professional recourse and withdraw from representation. Losing a major client in a law firm can have
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significant consequences, to be sure, but withdrawing from your one client as an in-house lawyer equates to a
loss of status, income and employment, raising the ethical stakes for in-house practitioners that much further.
Remaining ethical, independent, and professional in an in-house practice requires a level of personal sacrifice and
dissociation from the company or the team not demanded of almost any other corporate player.

Yet the response of Canadian regulators to the challenges faced by in-house counsel has been inadequate, and
merits review. In addition to providing the assistance of an imperative — a rule of professional conduct — to
which in-house counsel might point when faced with client misconduct, the lesson of the United States
experience has been that legislators and regulators are no longer content simply to permit the self-regulating
legal profession autonomy when it comes to rectifying an obvious failing.

In introducing the amendment to Sarbanes-Oxley that directed the SEC to draw up "Rules of Professional
Responsibility for Attorneys", Senator John Edwards said that for "the sake of investors and regular employees,
ordinary shareholders, we have to make sure that not only the executives and the accountants do what they
are responsible for doing, but also that the lawyers do what they are responsible for doing as members of the
bar and as citizens of the country". Senator Mike Enzi said: "[l}awyers have just as much responsibility as
accountants and corporate executives to protect the best interest of the shareholder. It is not unreasonable to
expect attorneys to play it straight with their clients, especially when we are talking about restoring corporate
integrity". While the perspectives of Senators Edwards and Enzi might be controversial (and, indeed, they are
ones with which Canadian law firms and lawyers have vehemently disagreed), their comments signal that public
representatives are no longer willing to let the profession determine for itself the boundaries of appropriate
lawyer conduct where a greater public interest is identified. That has ramifications for the future of self-
regulation of the legal profession as a whole.

+++++++++++++++++++++++++++++++++++++++++++++++++++++

 How it Went Off the Rails at GM

By Paul D. Paton
Lawyer's Weekly In-House Counsel Fall 2014 pp. 8-10

It's one of the situations every company lawyer dreads: Your client's product is hazardous or, even worse,
potentially fatal. Disclosing the information externally will lead to embarrassment, financial exposure, and
even greater negative consequences for your client. And it could well destroy your own career. Your duty
of loyalty is to your client, the corporation, but what do you do, especially when the public's safety is in
question?
237
Exactly such circumstances are receiving extraordinary attention ... in the aftermath of the scandal at
General Motors over the recall of millions of cars due to a flaw in an ignition switch that has been linked to
at least 13 deaths (plaintiffs' lawyers peg the number at closer to 60) and that investigations suggest the
company had known about for a decade.

The defect affected small cars, such as the Chevrolet Cobalt and the Saturn Ion; if jostled or weighted by
other keys, a defective ignition switch could abruptly slip from the "on" position, shut down the car's
engine, disable the car's airbags, power-assisted steering and brakes, and cause a driver to lose control. Even
the engineer who designed it called it "the switch from hell".

The part was approved to be put into production in 2002, despite deviating from company specifications,
with the company's chief switch engineer, Raymond DeGiorgio, erroneously believing that there would
be no impact on a car's performance. Customers, dealers, the media and employees complained for 11
years that the ignition switch was the source of the problem, but the company failed to take action.

An internal probe conducted by Anton Valukas, former U.S. Attorney in Chicago, and chairman of the venerable
Jenner & Block LLP, and a person described by the Wall Street Journal as "one of the most influential men in the
auto industry" concluded that there was "a pattern of incompetence and neglect" at the automaker, but no
intentional cover-up. Chief executive officer Mary Barra said the company had dismissed 15 employees and
reprimanded five others in response to Valukas' findings, which were released in early June 2014.

The 325-page report painted a harsh portrait of the company's internal corporate culture, but reserved
special criticism for the internal legal team: "While the issue of the ignition switch passed through numerous
hands at GM, from engineers to investigators to lawyers, nobody raised the problem to the highest levels of the
company. As a result, those in the best position to demand quick answers did not know questions needed to be
asked."

Reuters reported that two GM product-litigation attorneys, Jaclyn Palmer and

Ronald Porter, were among the 15 let go as a result of the report's findings; they had settled several of the
cases involving Cobalts involved in accidents where airbags did not deploy. Reuters also identified former
North American general counsel Michael Robinson, who had later become vice president for environment,
sustainability and regulatory affairs, as another high-ranking lawyer forced out, and reported that three
other attorneys had left, taking the total number of lawyers caught in the initial downdraft to six.

General counsel Michael Milliken kept his job, although reports in the press increasingly questioned his
involvement, and his ultimate responsibility.

Valukas' internal report said that product-litigation attorney Jaclyn Palmer had first learned of an issue
involving non-deployment of airbags in a Cobalt in November 2006; over the next several years, she handled
or was told about several cases involving the same issue. At a January 2011 meeting during which

238
company lawyers reviewed potential legal settlements, the report noted, Palmer discussed company
investigators' theory that the failure of airbags to deploy might be related to the ignition switch.

The particular case was settled shortly thereafter, but later in January, another executive reportedly asked Palmer
for a meeting to discuss the switch issue; Valukas' report said that meeting took several months to convene,
with a lack of urgency noted as a particular cultural problem. Three of the attorneys who attended that January
2011 meeting were reportedly forced out [in 2014].

The New York Times reported ... that even while the company "insisted that work on defective ignition
switches was limited to a handful of midlevel employees," and "finally began to face up to the issue,
G.M. lawyers moved to keep its actions secret from families of crash victims and other outsiders" with
confidential settlements in five fatal accident cases. The Times ... concluded that "interviews with victims,
their lawyers and current and former G.M. employees, as well as evidence in [Valukas'] report itself, paint a
more complete picture: The automaker's legal department took actions that obscured the deadly
flaw, both inside and outside the company".

While the general counsel was absolved of wrongdoing, Valukas concluded that "the very secrecy that his
department valued kept him from knowing about a safety crisis that has rocked the company". The strategy
of using confidential settlements is also coming under closer scrutiny, with draft federal legislation in the
U.S. moving forward that would limit the ability of corporations to enter into them at all.

The GM story is complex, layered, and still unfolding, but it's clear that, in addition to what Valukas
identified as a problematic corporate culture, the legal department is once again under close scrutiny-
scrutiny not perhaps seen since the Enron debacle of 2001-2002. In GM's case, practices not necessarily
unique to the automaker — such as limiting or preventing note-taking by employees in safety meetings
"because they believed GM lawyers did not want notes taken", or setting up a program of annual audits
of employee e-mails that could be used as evidence in lawsuits against the company as part of a larger
program labelled "information life-cycle management" with the purported purpose to downsize data in
company computers — are coming. under the microscope.

While the entire episode reads like a law school ethics examination hypothetical. the consequences here for the
victims of the crashes and their families are all too real. GM agreed in May [2014] to pay the maximum
USD $35-million fine for failing to tell the National Highway Traffic Safety Administration within five
business days after determining the switches were a safety defect. agreed to "unprecedented oversight" by the
government of its safety processes. and turned over the entire Valukas report to Congress and the NHTSA
(after Barra, the CEO, had fought to keep certain parts confidential). The automaker also announced it will
compensate "everyone who has lost a loved one or suffered a serious injury" as a result of the defect, and that it
had hired Kenneth Feinberg (who oversaw the 9/11 victim compensation fund) to run its victim compensation
program. For the lawyers involved, and for other in-house counsel watching these events carefully,
239
however, the story is far from over. Balancing duties to the client with responsibilities to the public has
never been so difficult, or so important.

As noted earlier, the focus upon and transformation of the rules for lawyers in corporate settings flows directly
from the spectacular financial scandals of the late 1990s and early 2000s. The collapse of Enron was a
seminal event for corporations around the world, and many of the key changes to both corporate and
securities laws generally and to the laws concerning lawyer conduct in particular can be traced to the
chronology of events for that one company. The next excerpt provides an introduction to the corporate story
of Enron, and to the conduct of the lawyers inside and outside the company prompting changes in the rules.

As you consider the Enron story, and the GM story set out above, reflect on what you might have done had
you been a junior lawyer within each company. How would you have acted if you had been faced with
the same circumstances?

+++++++++++++++++++++++++++++++++++++++++++++++++++++

 Lawyers, Ethics and Enron

By Deborah L. Rhode & Paul D. Paton

(2002) 8 Stan. J.L. Bus. & Fin. 1

Despite the risks of oversimplifying an extraordinarily complex saga, a brief summary of key facts is necessary to
understand the role of lawyers involved with Enron. The company was formed in 1985 from a merger of
Houston Natural Gas and internorth. This merger created America's first nationwide natural gas pipeline
network. Over time, the firm's business focus shifted from regulated transportation of natural gas to energy
trading in an increasingly deregulated environment. During this evolution, top management ventured away
from traditional approaches to the core business in order to generate higher financial returns. ...

A Special Investigation Committee of Enron‘s Board of Directors (the ―Powers Committee‖) was established
in late October 2001 as the scandal was nearing the height of public exposure. Chaired by University of Texas
School of Law Dean William Powers, Jr., the Committee concluded in its February 2002 report (the ―Powers
Report‖) that as financial problems arose in operations outside its core energy business, Enron had used
Special Purpose Entities (―SPEs‖) or Special Purpose Vehicles ( ‗SPVs‖) and off-balance-sheet partnerships to
enter into transactions generally considered too risky or controversial for ordinary commercial entities. These
SPEs and partnerships were not consolidated with Enron‘s other activities on Enron‘s financial statements; as a

240
result, Enron‘s significant losses and debts could be concealed from public disclosure.

In hindsight, the rules governing accounting treatment of SPEs have become a key issue, underscoring the need
for unbiased professional judgment by lawyers as well as by accountants.

Whether Enron‘s SPEs should have been consolidated, and whether they ought to have been disclosed,
were not only accounting issues but also key legal questions. For answers, Enron relied on assistance not
only from accountants and auditors at [accounting firm Arthur] Andersen, but also from its in-house lawyers
and outside counsel at Vinson & Elkins. These attorneys all played an important role in the process of drafting
and certifying disclosure statements, and in advising whether the legal and accounting requirements
governing SPEs and SPVs had been met.

The Powers Report noted that in some cases, transactions were designed specifically for the results they
would produce on financial statements, not for legitimate economic objectives. Nor were the transactions
adequately dis- closed. Further, even though Enron‘s public filings revealed the existence of Enron‘s
transactions with the partnerships, ―the disclosures were obtuse, did not communicate the essence of the
transactions completely or clearly, and failed to convey the substance of what was going on between
Enron and the partnerships.‖ ... The SPEs were terminated in September 2001, resulting in a surprise
announcement that was the first public disclosure even hinting at the severity of the problems.

This announcement came on October 16, 2001, and marked the beginning of formal confirmations that matters
had gone awry. Enron confirmed that it was taking a $544 million after-tax charge against earnings related to
transactions with an investment partnership created and managed by Andrew Fastow, Enron‘s former
Executive Vice President and Chief Financial Officer, and by other Enron employees who worked with
Fastow. About a month later, on November 8, 2001, Enron announced in an SEC filing that it was restating its
financial statements for the years 1997 through 2001 because of "accounting errors relating to transactions
with a different Fastow partnership ... and an additional related-party entity." The restatements reduced
Enron's reported net income by a total of $1.5 billion, reduced reported shareholder equity over $2 billion,
and shattered the confidence of the market and investors in the company. In November, Enron also revealed
for the first time that it had learned that Fastow had received more than $30 million from two of the part-
nerships; other Enron employees involved in the partnerships had been enriched at Enron's expense "in
the aggregate, by tens of millions of dollars they should not have received." On November 28, 2001, major
bond rating agencies downgraded Enron's debt to junk bond status. The company filed for Chapter 11
bankruptcy on December 2, 2001.

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The Role of the Lawyers

On the basis of the facts now publicly available, lawyers' activities in three contexts merit particular
attention. The actions of Enron's in-house counsel. Enron's primary outside counsel Vinson & Elkins, and
Andersen's in-house counsel all raise important concerns.

A. Enron's In-House Counsel

The role of Enron's in-house counsel in structuring critical transactions and advising the firm on disclosure
requirements reflects longstanding issues about conflicts of interest and professional independence.
The Powers Report's detailed references to these lawyers make clear their integral contribution to the
creation and operation of the various partnerships and SPEs; to the negotiations between Enron and the
partnership entities; and to the preparation of related-party proxy disclosure statements. In assessing that
conduct, the Report criticized "an absence of forceful and effective oversight by Senior Enron Management
and in-house counsel" hi the failure to disclose meaningful information about the SPEs and the essential
nature of the transactions in issue.

Of still greater concern was the Powers Report's finding that one of the company's in-house lawyers,
Kristina Mordaunt, not only gave advice on the SPE transactions, but also invested her own money in one of
the entities. She did so without obtaining the consent of Enron's Chairman and CEO, in violation of Enron's
Code of Conduct. Mordaunt reportedly received $1 million in return for a $5,800 investment. That
investment may also have violated bar disciplinary rules concerning conflicts of interest. The Powers
Report itself notes, though, that Mordaunt later admitted that her participation in the SPE was an error in
judgment and that "she did not consider the issue carefully enough at the time."

By contrast, at least two Enron attorneys had serious concerns about the company's financial conduct, but were
stymied by other Enron lawyers or managers in efforts to respond. A case in point involves a September
2000 memo by an Enron North America attorney expressing concern about the possibility that "the
financial books at Enron are being 'cooked' in order to eliminate a drag on earnings that would otherwise
occur under fair value accounting." More senior attorneys who received the memo did not believe the factual
assertions on which the memo's conclusions were based, but conducted no investigation to verify their belief
and took no further action. A second example involves an Enron attorney who reportedly asked the law firm of
Fried Frank Harris Shriver & Jacobsen to review the legality of the partnerships and SPEs. After Fried Frank
recommended that Enron halt the practice of using such structures, the Enron attorney sent written internal
memoranda to company executives to the same effect. The failure by more senior counsel and by Enron
executives to follow such advice, or to investigate its factual basis, suggests greater problems with the
corporate culture — one that prized aggressive behavior, put a premium on risk and "valued appealing lies
over inconvenient truths."

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B. Enron's Outside Counsel: Vinson & Elkins

Of equal concern is the role of Vinson & Elkins lawyers, Enron's primary outside legal counsel, in
structuring transactions and providing legal advice on public disclosure documents. ... Indeed, the Powers
Report concludes that Vinson & Elkins provided advice and prepared documentation in connection with
many of the [problematic] transactions. ... It also assisted Enron with the preparation of its disclosures of
related-party transactions in the proxy statements and the footnotes to the financial statements in
Enron's periodic SEC filings. Management and the Board relied heavily on the perceived approval
by Vinson & Elkins of the structure and disclosure of the transactions. Enron's Audit and Compliance
Committee, as well as in-house counsel, looked to it for assurance that Enron's public disclosures
were legally sufficient. It would be inappropriate to fault Vinson & Elkins for accounting matters, which
are not within its expertise. However, Vinson & Elkins should have brought a stronger, more objective
and more critical voice to the disclosure process.

Vinson & Elkins' leaders have denied that the firm acted improperly. In their view, outside lawyers may
assist in a transaction that is not illegal and that has been approved by company management. In so
doing, "the lawyers are not approving the business decisions made by the clients." Yet not only is that an
unduly circumscribed understanding of the lawyer's ethical responsibilities, it also begs the question of
who is the "client". [The firm's response also raises a question that has become central to debates over
regulatory reform: when do lawyers have an obligation to bring dubious conduct to the attention of more
senior management or the board of directors?

A related issue involves the responsibility of Vinson & Elkins when it was asked to investigate initially
anonymous allegations by Sherron Watkins. In August 2001, Watkins, Enron's vice president of corporate
development, wrote an anonymous six-page memo to Kenneth. Lay, Enron's Chairman and CEO, detailing
her concerns about the propriety of Enron's disclosure statements and accounting treatment of the SPE and
partnership transactions. Watkins recommended that Enron's Chief General Counsel hire an independent
law firm to investigate the transactions, and specifically advised against using Vinson & Elkins. As she
noted, "(Can't use V&E due to conflict — they provided some true sale opinions on some of the deals)." In
agreeing to take on this investigation, Vinson & Elkins placed itself in the position of evaluating its own
work. The firm also agreed to highly restrictive limitations on the scope of its review, which further
circumscribed the value of its advice. At a minimum, as most legal ethics experts have suggested, Vinson
& Elkins" lawyers should have discussed the possible conflict with Enron executives and directors and
secured a written conflicts waiver. It is, however, by no means clear that a waiver would have solved the
problem. Prevailing bar ethical rules prohibit lawyers from representation that would be "materially and
adversely affected" by the lawyers' own interests, unless the client gives informed consent and the lawyer
reasonably believes the representation will not be adversely affected. ...

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As it was, the nine-page report that the firm provided to Enron's General Counsel on October 15, 2001
left much to be desired. Although Vinson Elkins characterized its investigation as "preliminary", the
report recommended no additional scrutiny. After a notably inadequate review of the facts. The law firm's
report concluded that they did not "warrant a further widespread investigation by independent counsel and
auditors". Without meaningful discussion of the substance of the transactions at issue, the report primarily
focused on their "bad cosmetics", namely "a serious risk of adverse publicity and litigation". To that end,
Vinson & Elkins recommended "some response should be provided to Ms. Watkins to assure her that her
concerns were thoroughly reviewed, analysed, and although not found to raise new or undisclosed
information, were given serious consideration".

Despite that recommendation, the Powers Committee was established just two weeks later to undertake
precisely the sort of detailed investigation that Vinson & Elkins had found unnecessary. The Powers
Committee retained a different law firm for assistance, and in February 2002, released a report of some 200
pages. That report criticizes Vinson & Elkins' actions with respect to many aspects of the investigation.
Because Enron's general counsel had instructed Vinson & Elkins that a detailed examination of the relevant
transactions and discussions with accounting advisors need not be part of the law firm's review, the "result
of the V&E review was largely predetermined 11 the scope and nature of the investigation and the process
employed". By contrast. The Powers Report notes that its own investigation was able to identify the most
serious problems at Enron only after making the detailed inquiries that Vinson & Elkins had agreed were
unnecessary. In reaching that conclusion. Vinson & Elkins' lawyers had interviewed only "very senior
people" at Enron and Andersen, who "with few exceptions, had substantial professional and personal stakes
in the matters under review." So did Vinson & Elkins, given its advice on the events under scrutiny and its
ties to the key players. ...

C. Andersen's In-House Counsel

Nancy Temple, in-house counsel at Andersen, emerged as a key figure in Andersen's demise, and her
actions have been a controversial centerpiece in discussions of lawyers' social responsibilities. As noted
earlier, Andersen played a crucial role in creating and auditing questionable investment vehicles, and in
certifying Enron's financial statements and public disclosures. Accordingly, Andersen's documents
regarding those matters could be critical to government investigators and civil litigants. The firm's detailed
document retention policies called for the destruction of all nonessential draft documents or conflicting
documentation relating to an audit, including the e-mails, voicemail messages, and desk files of
Andersen personnel working on the audit. The policy itself was not unusual; what created problems was
the timing and manner of Temple's calls for compliance with the policy.

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Temple's actions became the subject of a highly unflattering Congressional hearing in January 2002.
Committee members were left incredulous by her characterization of actions concerning Andersen's
document retention and destruction as customary housekeeping duties. She admitted awareness, prior to October
8, of allegations by an Enron employee of inappropriate accounting procedures, as well as an investigation by
Vinson & Elkins. She also admitted that between September 28 and October 12, she provided legal advice about
specific documentation and retention issues. The SEC placed Enron under investigation in early October, and it
confirmed that fact publicly in an October 22 press release. Temple's notes from a conference call on October 8
anticipated that outcome: "Highly probable some SEC investigation."

Despite her knowledge, Temple sent an email on October 12 to Andersen's Houston practice director
making reference to the firm's document retention and destruction policy: "It might be useful to consider
reminding the engagement team of our documentation and retention policy. It will be helpful to make
sure that we have complied with that policy." On October 23, David Duncan, Andersen's lead engagement
partner on the Enron audit, ordered his team to comply with Andersen's policy and gathered all of the
documents relating to Enron. Andersen officials later admitted that significant numbers of documents
were shredded between this time and November 10. Media reports chronicled the accumulation of more
than eighteen trunks and thirty boxes of documentary debris on only one of the days at one of the offices. Not
until November 10, after the SEC had subpoenaed documents from Andersen concerning its Enron investigation
and after Andersen had received a second subpoena in a related lawsuit, did Temple instruct the Enron
engagement team "to preserve documents, computer files and other information relating to Enron."

Andersen officers were clearly alert to problems with Enron in September 2001. By October 9, the accounting
firm had retained lawyers at Davis, Polk & Wardwell ("Davis, Polk") to "help with the complex issues
that were going on in the third quarter." Temple admitted that she had discussed documentation and
retention issues with Davis, Polk as early as October 16. In testimony during a Congressional subcommittee
hearing, Andersen's Senior Executive. C.E. Andrews, initially disclaimed any expectation of litigation on
October 9. However, a few minutes later, in response to a different question, Temple acknowledged that as
soon as she was aware that Enron would be restating its prior financials, she concluded that Andersen "would
likely be sued." Almost immediately thereafter, Andrews conceded that Davis, Polk had been hired "for
purposes to help [Andersen] with the financial reporting and possible litigation." Accordingly, a "reminder"
about the audit firm's document shredding policies in early October 2001 could plausibly be interpreted as
encouraging destruction of background papers that might be relevant to its liability or to the regulatory
investigation of its client.

In a televised interview on Meet the Press, Andersen's CEO Joseph Berardino attempted to discount this
possibility: "Nancy just told people to use their judgment. She did not instruct them to do anything, to my
knowledge." Yet despite the insistence that Temple had made no error, legally or ethically, Andersen fired

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David Duncan, its Enron team leader, for similar conduct. According to Andersen's CEO, in the same
interview, Duncan "displayed extremely poor judgment in the destruction of documents' issue" after he
learned of the SEC investigation. The attempt to scapegoat Duncan while exonerating Temple did not sit well
with Congressional investigation. As the Subcommittee Chairman noted, "common sense gets a little lost here."

+++++++++++++++++++++++++++++++++++++++++++++++++++++

 Corporate Counsel as Corporate Conscience:

Ethics and Integrity in the Post-Enron Era
By PAUL D. PATON
(2005) 84 Can. Bar Rev. 533

Debates over where the balance between candor and confidentiality ought to lie are important for all
professionals in corporate practice. The particular challenge for regulators and for the profession after Enron lies
in resolving the choice between disclosure to public officials of corporate misconduct and the traditional
requirement of loyalty to the organizational client. In the United States, there was a firestorm over Section 307
of the Sarbanes Oxley Act of 2002 and the [Securities and Exchange Commission, or "SEC"] rule proposals
implementing that legislation, and also in response to proposals and eventual changes to the [American Bar
Association, or "ABA"] ABA Model Rules of Professional Conduct pertaining to the Organization as
Client (MR 1.13) and Confidentiality (MR 1.6). In stark contrast, an amendment to the Rules of Professional
Conduct in Ontario in March 2004 took place with virtually no public input or debate, with [the Law Society of
Upper Canada] proceeding after having been prompted by a query from the [Ontario Securities Commission] about the
need for the same type of rules on lawyer conduct as had been mandated for the SEC under Sarbanes-Oxley.

In contrast to the uncertainty created by other sections of the Sarbanes-Oxley Act of 2002, which introduced
the most substantial reform of corporate governance in the United States in decades, Section 307 of the
legislation has from the start been seen as clear, if extremely controversial. It has two dimensions. First, Section 307
of the Act instructs the SEC to adopt a rule of practice establishing "minimum standards of professional
conduct" for lawyers "appearing or practicing before the Commission." Second, the Section specifically directs
the SEC to include a rule requiring all such lawyers to report evidence of fraud and other corporate misconduct in
the companies they represent "up the ladder" to the company's senior management, and if necessary, to the board
of directors. The SEC published a proposed rule (Part 205) on November 21, 2002 and closed its comment
period on December 18, 2002. The Act required the final rule on this section to be issued on or before
January 26, 2003. On January 23, 2003, the SEC passed rules implementing Section 307 of Sarbanes-Oxley and
published the rule text the following week.
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Regardless of the contours of the final rule, the fact the SEC would begin regulating attorney conduct represented a
significant shift away from deference to the self-regulatory tradition of the bar. It was also a signal that
lawyers were attracting critical attention in the aftermath of Enron, and that legislators view the public interest to
be best served by having lawyers more responsible to the public for their clients' conduct. As Senator. Michael.
Enzi, an accountant and a co-sponsor of the amendment to Sarbanes-Oxley that became Section 307 noted:

As we beat up on accountants a little bit, one of the thoughts that occurred to me was that probably in almost
every transaction there was a lawyer who drew up the documents involved in that procedure. It seemed only
right there ought to be some kind of an ethical standard put in place for the attorneys as well.

... The Rule casts a very wide net, defining "appearing and practising before the Commission" to include those
"preparing, or participating in the process of preparing" essentially anything filed with or incorporated into any
communication with the SEC. The definition also includes advising a party that something should not be filed
with the Commission. The ABA criticized the definition as "inappropriately encompass[ing] non-securities
specialists who do no more than prepare or review limited portions of a filing, lawyers who respond to auditors
letters or prepare work product in the ordinary course unrelated to securities matters that may be used for that
purpose, and lawyers preparing documents that eventually may be filed as exhibits." Others criticized the Rule as
not going far enough, by not including law firms as well as individual lawyers in the Commission's
disciplinary sights. They encouraged the SEC to broaden the scope to impute knowledge within law firms
and hold the law firm responsible for the acts of its lawyers as agents of the law firm entity.

The fact that the definition also applies to foreign lawyers on an equal basis prompted additional cause for
concern. in particular, the reporting requirements raised the spectre that foreign lawyers would be required
to violate their domestic bar rules concerning privilege and confidentiality of client communications or risk
breaching the SEC rules and possibly invite U.S. criminal sanction. The International Bar Association issued a
strong call to the SEC to exempt non-U.S. lawyers from the proposed Rule. The ABA argued that "especially in
the case of foreign attorneys, the extraordinary breadth of the term "appearing and practising" is likely to lead to
confusion as to who is subject to the obligations of the rules, and to its sanctions in the event of noncompliance."
This concern was partly self-motivated, as the ABA worried "that subjecting foreign attorneys to regulation
by the SEC could result in foreign agencies seeking to regulate the conduct of U.S. attorneys representing U.S.
companies abroad or foreign companies."

Others were uncompromising in supporting the proposal's extra-territorial reach. The submission to the SEC
by three leading law school professors, endorsed by at least 53 others, unapologetically applauded the rule,
reflecting a "U.S.-first" mood not limited to Section 307 alone: "No foreign country, lawyer or corporation
has a "right" to participate in our securities markets on their own terms. They have a choice: to play by our
rules or not" [emphasis added]. The professors argued that exempting foreign lawyers would simply open a
loophole for many large corporations to skirt the SEC's rules, resulting in "violence to the legislative scheme,

247
harm to investors, and harm to the domestic securities bar who would be placed at a competitive disadvantage
vis-à-vis their foreign counterparts." They concluded:

The arguments made by foreign bars are virtually indistinguishable from those made by the ABA to ward
off SEC regulation of domestic lawyers. What we know of foreign enforcement efforts against securities
lawyers suggests that their arguments are as illusory as those advanced by domestic lawyers in the effort to ward
off effective federal regulation. The Commission should maintain its principled, wise and legislatively justified
stance to regulate foreign and domestic lawyers equally.

The particularly vexing part of the proposed rule (and the legislation) for both domestic and foreign lawyers was a
proposal that would have required "noisy withdrawal." In addition to requiring a lawyer to report potential
violations "up the ladder" within a company to its chief legal officer or CEO and then to the audit committee, an
independent committee, or the board of directors. The original proposal for Part 205 mandated that a lawyer
take further steps if the company failed to act to rectify the situation. Where a lawyer believed the company had not
adequately responded to reported "evidence of a material violation" of the securities laws, "a material breach
of fiduciary duty, or a similar material violation," the lawyer would then be required to 1) withdraw from
representation; 2) notify the SEC of the withdrawal, indicating that it was based on professional considerations,
and 3) disaffirm any filing with the SEC that the attorney has prepared or assisted in preparing that the attorney
believes is or may be materially false or misleading. Noted as going "to the heart of the attorney-client
relationship," this part was criticized as "almost deputiz[ing] attorneys to become quasi-governmental
inspectors," and for turning all "lawyers into junior regulators, surveillance operatives, whistle-blowers." The
ABA said the rule contradicted legislative intent, relying on comments by Senator John Edwards (one of the
principal architects of Section 307) that in Sarbanes-Oxley there "is no obligation to report anything outside the
client — the corporation." The President of the American Corporate Counsel Association noted, "There's a very real
fear that the rules will change the relationship [with the client]."

These comments overlooked the fact that even in the absence of the "noisy withdrawal" requirement, lawyers in
forty-one states were, at the time, permitted (but not obliged) to report evidence of a continuing crime or fraud by
a client. The ABA had, prior to this point, twice rejected proposals by its own Ethics 2000 Commission to
tighten this requirement. The SEC proposal stepped into that breach and would have made this conduct
mandatory; a more rigorous SEC standard would in effect pre-empt state rules.

[...]

The final Rules implementing Section 307 provisions of Sarbanes-Oxley on attorney conduct took a
considerably different turn from the original proposals and constituted a major retreat by the SEC. The Final
Rule maintained the "up the ladder" reporting requirement for evidence of material violations of securities
laws, but changed the test for "evidence of a material violation" from a relatively straightforward determination
to a standard which is considerably more difficult to enforce because the definition of what constitutes

248
"evidence of a material violation" is now far more complex than in the proposed rule. Further, even if a lawyer
finds such evidence under the new standard, he or she can back down from pressing the company to change the
behavior if another lawyer opines that there is a "colorable defence" for the company's actions.

The Commissioners also backed down on the "noisy withdrawal" requirement so strongly advocated by the
group of law professors and strongly resisted by the practicing bar. The SEC extended the comment period on
this issue for a further 60 days, and suggested a possible alternative rule requiring a lawyer to withdraw from
representation but requiring the client, rather than the lawyer, to publicly disclose the withdrawal or written
notice that the lawyer did not receive an appropriate response to a report of a material violation. While formally
never concluded, for the time being it appears this fight is over. The CBA called the changes a positive step,
but insisted that they did not go far enough to preserve lawyer-client relationships. More importantly, the
CBA

Press release signalled again a more fundamental debate: "The CBA continues to stress that it is unacceptable
for any government agency to dictate ethical standards for Canadian lawyers."

+++++++++++++++++++++++++++++++++++++++++++++++++++++

 The Future of Privilege

By Paul D. Paton
Should in-house counsel be treated the same as their law firm counterparts especially when it comes to
solicitor-client privilege? A recent European case and Canadian Bar Association (CBA) report have
reignited the debate.

The European Court of Justice decision [in September 2010] in Akzo Noble chemicals Ltd and Akcros
Chemicals Ltd. V. Commission offered a rare opportunity for the European Court of Justice (ECJ) to revisit
two previous landmark decisions from 1982 and 1984 that privilege was not available to prevent disclosure
of communications involving in-house lawyers in competition law investigations. In addition to reaffirming
that principle, Akzo set back perceptions of the role of in-house available for any communications between
North American in-house counsel and their European counterpart or company executive s.

In AM&S, a 1982 decision, the European Commission (EC) seized documents emanating from in-house
counsel during surprise raids on the company and used them as evidence of infringement of European Union
(EU) competition law even though the documents contained only legal advice to company management. The
ECJ established that a "legal professional privilege" exists in the EU where i) the communication was made

249
for the purpose of and in the interest of a client's defense, and, ii) where the communication involves an
―independent lawyer, that is to say one who is not bound to his client by a relationship of employment,"

In John Deere, a 1984 case, the document seized during a similar raid was a memorandum from Deere and
Co‘s American general counsel to company managers in Europe in which he expressed the view that
company policies may have been violating EU law. The EC rejected the company was engaging in
competition law violations willingly and knowingly.

Akzo Nobel was the latest round in this battle. The case arose out of raids by the EC in 2003 on the premises
of Akzo and its subsidiary Akcros during an investigation of suspicions that the companies were participating
in a Cartel the document seized included two emails between a company executive Akzo's in-house counsel
for competition law, who was admitted to the Netherlands Bar. The in-house layer had signed an agreement
with Akcros specifically acknowledging his independence, which would have permitted the company to assert
privilege under Dutch law.

In its September 14, 2010 decision, the ECJ reconfirmed AM&S and held that legal professional privilege did
not apply to communication with in-house lawyers in competition law investigations conducted by the EC
under EU law, despite the independence agreement the Dutch lawyer had signed with the company. The
language the ECJ adopted in coming to this conclusion had both practical and symbolic implications. In
particular, the court focused on the in-house lawyer‘s ―economic dependence‖ and ―close ties‖ with his
employer to find that he ―does not enjoy a level of professional independence comparable to that of an
external lawyer.‖ Despite the fact that an in-house lawyer is enrolled with a Bar or law society and has
professional ethical obligations which flow as a result, he "occupies the position of an employee which, by
its very nature., does not allow him to Ignore the commercial strategies pursued by his employer, and thereby
after his ability to exercise professional independence while the [US.] Association of Corporate Counsel
(ACC) attempted to diminish the impact of the decision in a September 2010 member briefing by noting that
in "concrete terms. The overwhelming majority of potential legal privilege cases or incidents will not be
affected by the AKzo ruling at all,‖ and that the decision ―has limited legal effect outside EU competition
law investigation conducted by the EC,‖ an ACC press release suggested much more grave consequences..

The ACC quoted J. Daniel Fitz, former ACC board chair in London, as saving that the ruling has serious
ramifications as it denies in-house attorneys and multinational businesses in Europe and elsewhere the
critical legal counsel on competition law matters that companies working in today's global legal market-
place require, The Court has locked into place the notion that in-house lawyers are not capable of
independent judgment under EU professional standards." The ACC's General Counsel was even stronger in
her condemnation. Susan Hackett said the court ignored "the realities of modern in-house practice. In-house
counsel an top legal practitioners who are just as capable as their outside counsel counterparts; the idea that

250
professional independence sterns from the type of office a lawyer works in, rather than from their moral and
professional compass, evidences a deep misunderstanding of legal professionalism and layers."

And while Akzo Nobel started as a competition investigation, language in the judgment signals that the same
result may lie applied beyond the narrow confines of competition law and perhaps to other European Union
(EU) regulations and institutions. The decision creates a direct conflict with privilege that might otherwise be
accorded at a national level to in-house counsel (in England, for example). Further, the European Advocate
General‘s opinion in the case, though not binding, took the position that privilege does not extend to external
counsel who are not admitted to the Bar of an EU member state.

For practical purposes, then, all communications between North American corporate counsel and the offices
and subsidiaries in Europe are potential, at risk. The decision could drive company management to ensure
that arc communications with in-house lawyers about EU competition law an Oral, not written; North
American corporate counsel will need to remember that their conversations with European counterparts may
not be privileged for certain purposes in Europe; and the possibility exists that challenges might arise in
Canadian and U.S. courts to privilege claims over inter-company communications: can a communication
with in-house lawyers arise with a "reasonable expectation of confidentiality" when such communications are
subject to seizure by the European Commission?

Akzo Nobel shows there is a need for a better understanding of the rationale for privilege and of the
professional ethics and role of in-house counsel. Becoming more aware of both the domestic and
international challenges substantive and symbolic, is only the first step.

For practical purposes, then, all communications between North American corporate counsel and the offices
and subsidiaries to Europe are menses- at risk. The decision could drive company management in ensure that
any communications with in-house lawyers about EU competition law are am not written; North American
corporate counsel will need to remember the their conversations with European counterparts may not be
privileged for certain purposes in Europe; and the possibility exists that challenges reign arise in Canadian
and U.S. courts to privilege claims over inter-compass communications: can a communication with in-house
lawyers arise with ‗reasonable expectation of" confidentiality" when such communications are subject-ta
seizure by-the European Commission?

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

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  Walking on the High Wire

By Paul D. Paton
Lawyers' Weekly In House Counsel Spring 2012, pp. 8-13

Sarbanes-Oxley and subsequent amendments to professional conduct rules for lawyers in Canada and the United
States reconfirmed the responsibilities of corporate lawyers to their organizations. And Securities and Exchange
Commission prosecutions of lawyers in the first five years after Enron made clear, they were increasingly seen
as "gatekeepers" for their organizations with quasi-public reporting responsibilities.

Only recently has similar attention been paid to the corporate secretary. [The role of the corporate secretary or
compliance officer — [is a hat] often also worn by general. counsel. The wearing of these multiple hats, and the
transformation of the role of corporate secretary over the past decade as scrutiny of board governance has
increased, raise additional ethical issues for lawyers operating in what is already a minefield.

As Canadian corporate governance expert Carol Hansel! sets out in her excellent primer, What Directors Need to
Know: Corporate Governance,' the corporate secretary brings knowledge and specialized expertise that serves as
an important resource to the board and to the organization as a whole. Beyond organizing board meetings,
preparing and ensuring distribution of meeting materials, keeping minutes and maintaining responsibility for
corporate records and necessary filings, the role is an important part of the management team. No longer a
mere custodian of records or simple note-taker, the corporate secretary is often a repository of organizational
history and culture, a bridge between management and independent directors, and a front-line player in responding to
regulators, investors and other stakeholders.

Despite the bevy of legal reforms, though, the office of corporate secretary is not defined by statute in Canada.
There is no statutory requirement under either the Canada Business Corporations Act' or the Ontario Business
Corporations Act" to even have one, although both statutes include "secretary" in the definition of "officers"
whom the board of directors might designate under their general powers to delegate management responsibilities.
The function may or may not be combined with the role of general counsel, and may or may not be occupied by a
lawyer. Increasingly, lawyers are being recruited for the role, whatever the label attached to the position, even if
they are not functioning solely or at all — in a legal capacity.

A sampling of recent advertisements for openings illustrates this wide variation in approaches. The Bank of
Canada's February 2012 search ad for a general counsel and corporate secretary, for example, notes that the
person chosen will "report to the Senior Deputy Governor, serve as a member of the Bank's Executive, and
provide legal, business and strategy advice to the Bank's senior management on all legal issues. With the
support of your legal team, you would guide the development of policies and procedures to secure the Bank's
compliance with its statutory and legal obligations". Other recent ads for "compliance officers" and "corporate

252
secretaries" are targeted at lawyers, although they articulate responsibilities that do not include the provision of
legal advice (and are accompanied by lower compensation levels accordingly). Clearly, though, having legal
training, knowledge and experience can be seen as an asset in fulfilling the role.

Part of the difficulty that sometimes emerges, then, is whether the corporate secretary is functioning as a lawyer,
and even if not, whether members of the board or the organization expect that they are dealing with that individual
as a lawyer qua lawyer, rather than as just another management employee. This has a whole series of ethical
and regulatory consequences.

First off, as Law Society of British Columbia bencher Rita Andreone pointed out in a 2011 article, several
provinces and territories have statutes defining the "practice of law" that may sweep in the functions performed
by corporate secretaries, unless those functions are specifically excluded. The B.C. Legal Profession Act,' in
particular, contains an expansive definition that could put many offside. As Andreone notes: "Not all of what a
typical Corporate Secretary does is necessarily caught by the practice of law restrictions, but care should be
taken as some parts of the role may routinely fall within the restrictions, especially where it goes beyond
mere minute-taking, certifications, record-keeping and pure maintenance tasks."

Second, when a lawyer is functioning as corporate secretary, it is easy for the roles to be blurred — one minute
you are a member of the management team responsible for the proper functioning of the meeting, the next you
are sought out to provide legal advice. What do you record in the minutes, if anything? This will have an
impact, in particular, on privilege but also in respect of liability insurance: lawyers are not covered when not
engaging in the practice of law. Corporate secretaries may be sued for negligence or breach of fiduciary duty in
their capacities as officers.

Another conundrum that often emerges relates to the reporting relationships for corporate secretaries.
Should the person report to the chief executive officer or the chairman of the board? If the corporate secretary
is also general counsel, might his or her independence in providing governance advice and direction to the board
be compromised because he or she is separately reporting to the CEO or CFO (and being annually reviewed
and having compensation set by those individuals instead)? Even where an individual maintains strictly
segregated lines of communication, the perception — either by the board or by management that they
have been somehow compromised could affect their ability to function effectively.

Finally, and most importantly, understanding the role in which a corporate secretary is functioning has key
consequences for privilege, especially if that person is also a lawyer. In 2004, the Supreme Court of Canada in
Pritchard v. Ontario (Human Rights Commission) said: "Owing to the nature of the work of in-house
counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-
by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the
privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the
circumstances in which it is sought and rendered."' The Saskatchewan Court of Queen's Bench had
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considered this issue in Potash Corp. of Saskatchewan v. Barton (2002), observing that, "when corporate
counsel works in some other capacity, such as an executive or board secretary, information is not acquired in
the course of the solicitor/client relationship and no privilege attaches".'

Most corporate counsel already have a keen appreciation of the challenges of preserving privilege when their
company clients seek both legal and business advice from them in the course of any given day. Ensuring
that correspondence or e-mails are segregated and redacting legal from business advice are a start; simply
slapping "privileged and confidential" on a document is not enough. And the worst time to find out that
you've managed it incorrectly is after the fact.

Where a corporate secretary has legal training, but isn't functioning as a lawyer, is even more important.
Even if the corporate secretary is also general counsel, whenever .he or she is playing an executive role that is not
necessarily a legal role, the safest course is to assume that he or she should not be providing legal advice in that
capacity. This means operating under the assumption that privilege will not apply.

[...] In the context of any regulatory or police investigation, one might expect that the actions of a corporate
secretary will come under close scrutiny. [I]t's clear that the days of corporate secretary as glorified record-
keeper are long gone. Appreciating the ethical quandaries that come with the new expectations is the first
step in more properly valuing the role and responsibilities that now come with the position.

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 Articles in Chapter D1. (Page 163 of the Note)

Topic: Access to Justice

 Imperfect Duty:
Lawyers’ Obligation to Foster Access to Justice

By Alice Woolley
(2008) 45 Alta. L. Rev. 107

The most common argument advanced for lawyers' special obligation... starts from the "monopoly" granted to
lawyers to provide legal services. In its simple form, this argument points to the "government-sanctioned
monopoly status" of lawyers which grants to them "significant anticompetitive economic advantage". At points,
including at the very outset of the American debate with the 1972 publication of the American Bar Foundation's
The Lawyer, the Public, and Professional Responsibility, the position of lawyers has been analogized to that of
the public utility granted a monopoly and, consequentially placed under a universal service obligation to
customers.

The issue with this simple form of the monopoly argument, however, is obvious, and has been pointed out
by numerous critics: with thousands of lawyers available for hire — according to the 2001 Census, there were
64,445 lawyers and Quebec notaries in. Canada, and in 2006 there were approximately 3000 law school
graduates lawyers are not a monopoly in an economic sense. Simply put, the legal profession has a
monopoly, but individual lawyers do not. Since the competition in the market for legal services operates primarily
at the individual level, the profession's monopoly does not result in the enjoyment of monopoly rents by
individual lawyers. There are more than sufficient numbers of lawyers to ensure that, absent other forms of
market failure, the price for legal services will be set by properly operating competitive forces. It
should be noted in this respect that after admittance to law school, the barriers to entering the Canadian
profession are relatively insignificant. Unlike some American jurisdictions, for example New York and
California, no Canadian province has high failure rates on its bar examinations. It is true that obtaining an
articling position can be difficult for some students; however, the availability of such positions is set by the
market, and not by the law societies.

In essence, lawyers are no different from pharmacists, dentists, speech therapists, physiotherapists,
accountants, or any other licensed practitioner who has educational and licensing requirements, after the
satisfaction of which they compete for clients. Lawyers have none of the attributes of the natural monopoly

255
associated with increasing returns to scale such as subadditivity (in which having more than one
participant in a market decreases the efficiency of delivering the service in question) and capital
intensiveness (in which entering the market is costly, because it requires very significant capital investment
for example, construction of a pipeline).

Absent some other form of market failure, lawyers will be subject to competitive forces and will
earn no more than is warranted by their "human capital: knowledge, skill, education, experience,
reputation, discretion and good judgment". The attempt to ensure that consumers are protected from
charlatans asserting knowledge of the law "does not warrant a decision to place a special burden on
lawyers to meet the legal needs of the poor".

Several attempts have been made, however, to refine the monopoly argument and to make it more
convincing. The most influential of these is the argument presented by David Luban in his seminal 1988 work,
Lawyers and Justice: An Ethical Study. Luban argues that the moral duty of lawyers to provide pro bono
services arises not just from the fact they have a monopoly, but more importantly from what it is they have
a monopoly to. The legal system is a construct of the human mind and a creation of the state. It does not,
like our need for health or dental care, inhere in the human condition, such that a lawyer's work could be
done absent state support. As a consequence, when lawyers are given the exclusive right to access that
system, they are also given a special trusteeship role within it. Additionally, as trustees of the legal
system, lawyers have an obligation to ensure that its benefits are distributed equally and fairly, and "that no
members of the community be excluded from the law"

Other commentators have refined the monopoly argument by looking at the question of improper benefit,
but by defining that benefit differently. Specifically, they have pointed to particular aspects of the
rights given to lawyers by the state and argued that those rights — in particular, confidentiality
and privilege are public assets which lawyers sell for profit. Although those rights, or goods, are in general
created to benefit consumers, they provide economic rents to lawyers which it is appropriate to require
lawyers to redistribute. In particular, it is appropriate to make lawyers redistribute those rents to
rectify the impairment of access to justice which their attainment of those rents creates. ...

These refinements of the simple monopoly theory defuse many of the criticisms noted above. In these
versions, the obligations of lawyers arise not from the fact of their monopoly per se, but rather from what it is
they have a monopoly to and from the features of that monopoly. It is not simply that lawyers are
extracting monopoly rents which they must disgorge; rather, it is the two-fold claim that the role of lawyers
within the legal system places them under a special moral or fiduciary-type duty relative to society as a whole,
and that lawyers gain economic benefits from certain aspects of their role within that system, which justify
holding lawyers especially responsible for ensuring access to justice. As a consequence, these theories are not

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 rebutted simply by pointing out the existence of competitive forces within the market for legal services and
the low probability of monopoly rents being extracted in these circumstances.

There are nonetheless significant issues with these theories. Most fundamentally, Luban's primary characterization
of the legal system as a product of the state and as therefore distinct from, for example, the
licensing of other professionals providing services not created by the state, is problematic. In making his
argument, Luban contrasts lawyers to grocers operating with a license on the basis that the lawyer's
monopoly is "manufactured by the state` ,while the grocer's business could exist without the participation of
the state. At first glance this seems correct: our need for food is absolute and part of our individual humanity; the
system of laws is external to any need we have as individuals. As a consequence, a person could sell food to
us without state support but could not supply us with legal services. On further examination_ though, this
distinction seems less clear-cut. While the individual considered alone may have no inherent need for a
system of laws, any individual hoping to co-exist in a social order will require rules of social interaction (laws)
and a means of dispute resolution: every human society will have these features in some form and people
who participate in delivering them. How these important human needs are met by a society — whether
the need for the food or the need for a means of peaceful co-existence — will be determined by the particular
society in question. It will determine how food sources are distributed, and it will determine how
disputes and other questions of social interaction and formation are resolved. In our society, the licence of
the grocer and the licence of the lawyer represent a societal decision as to how to meet an inherent human
need. They are inescapably both inherent and socially constructed, and in practice no obvious philosophical
distinction can be made between them. Moreover, no obvious philosophical distinction can be made between
the individuals acting in furtherance of those social responses to an important human need.

It thus seems more accurate to characterize licensed service providers, whatever their particular form, as meeting both
important human needs and as benefiting from a particular socially constructed response to those needs. But
when characterized in this way, the obvious difference between lawyers and other licensed service providers
disappears, and so does the justification for the special social obligation of lawyers that goes with it. If lawyers
are trustees in distributing law, so too are physicians in distributing health care, dentists in distributing dental care,
and even teachers in distributing education.

Another issue with the refined monopoly arguments is that it is not obvious that the property attributed to
lawyers by some of these theories — in particular, confidentiality and privilege — is properly so attributed.
It is clear in law that the rights of confidentiality and privilege are the rights of the client, not the rights of the
lawyer. These rights exist to preserve the dignity of individuals intersecting with the legal system and to
ensure that those individuals are able to access the system effectively. Costs associated with those rights,
such as less efficient litigation and higher prices for lawyers, are not rents extracted by lawyers at the expense of
consumers. Rather, they are simply the costs associated with those protections, much as the need for regulatory

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approvals drives up the cost of certain pharmaceuticals. If those costs are unacceptably high, it might be worthwhile
to check or amend the regulatory rules which give rise to them, but imposing a tax on lawyers, whether in the form
of money or a service obligation, has only a loose logicalconnection to those costs.

With respect to the social benefit of low tuition fees, these are benefits received by everyone who attends a public
post-secondary institution in Canada. lf it is appropriate to require a reimbursement for the increased economic
returns associated with that education (and it may well be that it is), that argument, again, is not limited to
lawyers. Further, low tuition fees may actually have a positive impact on access to justice. As law school tuition
rises, graduates might simply be unwilling to take on less remunerative employment. A law school graduate
with low student debt may be more willing to consider working at a legal clinic than one with debt of close to
CDN $100,000.

Finally, underlying these theories is an assertion of lawyers as ―gatekeepers‖ to the legal system. While it would
be difficult to assert that an unrepresented individual can access the legal system as efficiently and
effectively as one with legal counsel, it is not true that the absence of a lawyer absolutely precludes access
to !he system. This is most obviously true when individuals operate under the shadow of the legal system in
forming relationships which are as of yet nonconflictual: getting married, staining a business, or buying a car.
But it can also be true in circumstances of legal conflict. Indeed, significant efforts have been made in a
variety Of forums — for example, at Alberta Small Claims Court and in the Tax Court of Canada‘s
informal dispute resolution proceedings —to allow people to access the justice system effectively without a
lawyer. Undoubtedly, having a lawyer• helps, even in those circumstances, but it is not absolutely
necessary.

Traditional arguments thus fail to justify imposing a special obligation on lawyers to foster access to justice.
The most convincing are the refined monopoly arguments, but even these have numerous problems related to
their conception of the legal system and of the role of lawyers within that system, and to their doubtful
assertion that lawyers are earning economic rents as a consequence of their clients‘ legal rights. [, . .]

C) Market Failure

A third approach to the question of whether individual lawyers and the legal profession as a whole have a special
obligation to address access to justice turns on the nature of markets for legal services. We have already seen that
lawyers‘ monopoly on entry into the legal profession plays a central role in Luban‘s trusteeship model of
professional obligation, but of course this feature of self-regulation does not necessarily prevent active
competition fc clients among individual lawyers and firms. If legal services markets are fully competitive, then
the price of those services will accurately reflect lawyer› own costs (education, overhead, etc.) and will
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largely be governed by thelevel of potential clients‘ demands for legal advice. But if, on the other hand,these
competitive dynamics are absent or impeded by inherent features o: legal services markets, then these
―market failures‖ may determine in pan why lawyers‘ fees are too high and thus why access to lawyers is too
limited To the extent that lawyers themselves benefit directly from such market: failures, these windfall
gains may justifiably ground lawyers‘ obligations tofoster access for those who are priced out of the marketplace
as a result.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

 The Price of Law:

How the Market for Lawyers Distorts the Justice System
By Gillin Hadfield
(2000) 98 Mich. L. Rev. 953*

Why do lawyers cost so much? Surprisingly, we have few insights into this basic question. Conventional
popular culture has one suggestion: lawyers are an avaricious lot who will bleed you dry. Conventional
economics has another legal training is expensive. And conventional professional wisdom has another:
lawyers enjoy a state-granted monopoly over which they control en- try for the purposes of protecting the
public. None of these is particularly compelling. While each seems to hold some grain of truth, each also
raises more questions than it answers. How is it that the profession has come to be dominated by vice? Why
is law so complicated that legal training is so expensive? Is the public better off with inexpensive low quality
legal advice or high quality legal advice it cannot afford?

The profession has long been both uneasy and defensive about its relationship to the market. Concerns about
the commercialization of law practice date back almost as far as the profession itself, and certainly
characterize the modem bar. The profession is entrusted with guardianship of the justice system, and so
imbued with the qualities of public service, but it also primarily distributes its goods via commercial, private
markets. This dual role causes internal conflict in the profession. The American Bar Association‘s (―ABA‖)
1986 Commission on Professionalism, for example, saw the fundamental question of professionalism to be,
―Has our profession abandoned principle for profit, professionalism for commercialism?‖

The relative inattention to the basic question of the economic causes of the high cost of legal services may,
paradoxically, be precisely attributable to the fact that the relationship between the lawyers and the market is
at the heart of modern conceptions of professionalism. As defined by the ABA‘s Commission on the
Profession, for example, the attributes of a ―profession‖ are primarily found in its relation to the market:

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 The profession receives special privileges from the state.

Its practice requires substantial intellectual training.

Clients must trust the professional because their lack of training prevents them from evaluating his or her work.

The client‘s trust presupposes that the practitioner‘s self-interest is overbalanced by devotion to serving both
the client‘s interest and the public good.

The profession is self-regulating.

By making the relationship between legal practice and the market constitutive of the ―profession‖, definitions
such as these cast that relationship as a matter of professional ethics, not economics. Seen in this light, the
high cost of legal services is a problem of virtue, not incentives: the very concept of professionalism requires
that a disregard of economic incentives be a moral duty for the professional. Lawyers charge high fees only to
the extent that they fail at their professional obligation to the public interest. Conversely, fees charged by
ethical attorneys are not ―high‖.

The claim of ―professionalism‖ in the relationship between the practice of law and the market is actually a
series of linked normative claims derived from the basic fact of legal complexity. Law requires substantial
intellectual training. It is therefore in the public interest that law be practiced only by those with such
training. Only those with training can judge the capacity of others to practice and the quality of practice
delivered to clients, and therefore entry into practice and regulation of practice is delegated to those with
training. Set apart from the control of both the state and the market, the obligation then falls to the profession
not to take advantage of the absence of external controls: to put public and client interest ahead of self-
interest. The profession is first conceptualized and then justified as a practice apart from the market economy.

But the practice of law is not apart from the economy. The concept of a profession may set the practice apart
as a normative ideal, but the structuring of the profession is still the structuring of a market. As the question,
―Has the profession abandoned principle for profit?‖ suggests, it is not at all evident that practitioners, even
highly ethical professionals, resist market incentives in any systematic way. The question then is, if
practitioners are behaving as market actors, what kind of market is this? Is it competitive, in the sense that its
prices reflect costs and competitive returns to an efficient use of resources such as training and human
capital? Or are there systematic features of this market that lead to noncompetitive prices or that otherwise
raise the cost of legal services to levels that should trigger concern?[. ]

Hadfield suggests that any special obligation on the part of lawyers to foster access to justice should rest not
on ideals of professionalism or vocationalism, but should instead by understood as a justified response to
systematic failures in the market for legal services. Following on Hadfield‘s reasoning, Alice Woolley has
identified several specific features of the market for legal services that may lead to such competitive failures,

260
thereby creating opportunities for lawyers to charge excessive fees and justifying more direct interventions by
regulators or the state to make legal services more accessible. First, while we sometimes speak about ―the‖
market for legal services, the actual services (i.e., the products) that lawyers provide can vary dramatically
from one context and individual to another. In other words, as Woolley explains, ―[w]hat one lawyer is
capable of providing is inherently dissimilar to that which another lawyer can provide, and what one client
needs is inherently dissimilar to what another client needs‖. This insight accurately reflects much of the data
generated by recent legal needs surveys as discussed in Part A. Moreover, clients generally lack good
information about what type and extent of work is needed to address their problems, leaving them at a
distinctive disadvantage in evaluating the quality of services being provided. Second, because the practice of
law requires extensive training and because entry into the profession is tightly regulated, the supply of
lawyers and thus legal services in the market at any given time is relatively inflexible, or unresponsive to the
level of demand from clients. While the legal reeds of the population may change rapidly as the result of
changing social, political or economic conditions, the number of qualified lawyers available to address the
needs of clients will inevitably be much slower to adjust. Finally, as described by Hazel Genii above, the
provision of legal services can be understood as a public as well as private good, meaning that the services
purchased from lawyers by private clients also cause wide-ranging effects or ―externalities‖ on society as a
whole. Although individual clients are likely to price lawyers' services based on the value of those services in
resolving the immediate disputes, legal outcomes in any given case can have both positive and negative
effects in terms of the use of public resources, establishing legal precedents, etc.

Overall, these various imperfections in the market for legal services can create opportunities and incentives
for lawyers to charge unjustifiably high fees that ultimately restrict access to justice. But as Woolley is
careful to point out, the conceptualization of these various market imperfections does not unambiguously
show that lawyers‘ fees will be higher (instead of lower) than the competitive market price, nor does the
available evidence strongly support the empirical conclusion that lawyers actually set their fees too high in
practice.

++++++++++++++++++++++++++++++++++++++++++++++++++++++

 Advancing Access to Justice through Generic Solutions:

The Risk of Perpetuating Exclusion

By Patricia Hughes
Recent reports about access to justice have focused on issues of affordability, with little reference to the
differences of equity-seeking groups. They have tended to recommend ―generic‖ solutions intended to
help people represent themselves better and to access limited legal services that fail to consider
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characteristics that exclude people from using them effectively. The author argues that if factors such as
low literacy or living in remote areas are not taken into account, generic solutions run the risk of
perpetuating exclusion rather than increasing access to justice.

I. INTRODUCTION

In many of the recent studies and reports about the problems facing the legal system the predominant focus
has been on the lack of affordable legal services and the complexity of the legal process. Several reports have
made recommendations for increased availability of unbundled and pro bono legal services, more self-help
materials, greater reliance on technology, more consensual settlement processes at or in connection with the
courthouse and greater opportunity for early resolution of disputes.

There is a rush to implement these recommendations in order to fix what is widely perceived to be a system
2
―in crisis‖. One report decries ―a serious access to justice problem in Canada‖, serious enough that the
3
system requires ―major change‖. Another warns that ―substantive change in the civil justice system has a
4
particular urgency and timeliness‖. More specifically, one report finds that despite a number of recent
reforms, ―family law disputants in Ontario continue to face difficulties that include gaps in responding to the
province‘s diverse population, difficulties in understanding and using information, lack of affordable
5
representation and inadequate response to the multidisciplinary nature of family issues‖. Still another study
laments the ―dramatic increases in the numbers of people representing (self-represented litigants or SRL‘s)
themselves in family and civil court over the past decade, across North America‖, referring to numbers
6
reaching up to 80 per cent in some family courts. Yet another emphasizes that it is not only low income but
also middle income earners who have difficulty addressing their legal needs, in large measure because of the
high cost of legal services, but cautions that the same responses might not be suitable for both.

These recent reports have taken centre stage in efforts to reform the civil legal system, in particular the family
law system. Too often, however, the studies pay little attention to a more holistic analysis of the ―access to
8
justice‖ problem, one which explores the meaning of the concept of ―access to justice‖, and which
scrutinizes the system from the viewpoint of particular groups (such as members of Aboriginal communities,
persons with disabilities, women or racialized women).

The reports attracting attention consider ―justice‖ almost in a vacuum; while making brief and, in some cases,
mere passing references to particular grounds of marginalization, they place their recommendations in an
ostensibly neutral legal system. They do not identify the frameworks within which they promote changes. For
example, generally speaking, they do not explain how their reforms would promote a particular form of
10
equality and thus do not consider how these reforms would effect broader change. This is not their purpose:
262
their purpose is to propose practical reforms that can be applied in the legal system, specifically in the courts
or in the delivery of legal services and the like and sometimes more broadly to include non-legal actors.

While the studies may make the point that we have to consider the impact of reforms on various groups or
take into account various factors such as low education or disability, these studies do not position themselves
within this equality discourse. Accordingly, the reforms are disconnected from a broader understanding or
exploration of how the current system reinforces relations of inequality. The studies and reports that promote
specific reforms in the legal system and the theoretical work that explores the larger question of how various
institutions, including the legal system, operate, travel on different tracks.

I begin with a discussion of the relevance of inclusivity to access to justice. I move then to a consideration of
the operational barriers and their possible impact on the effectiveness of generic solutions to increasing
access to justice. For illustration, I consider how literacy skills and living in rural and remote areas affect
access to unbundled legal services and the use of technology to provide information. I conclude that unless
we adequately consider the impact of access to justice reforms on the circumstances of disadvantaged groups,
we risk perpetuating an underclass of persons excluded from justice.

II. INCLUSIVITY: ENHANCING ACCESS TO JUSTICE

A. Generic Approaches to Improving Access to Justice

The task of ―reimaging‖ the legal system to include appropriate responses to the challenges faced by all
groups is a significant one and it is not surprising that reports seeking to bring about changes do not always
address the complex web of factors that create barriers to justice. The list of disadvantaged or excluded groups
is long. Mary Anne Noone offers the following concise articulation of these barriers, coupled with institutional
barriers:

Access to justice may be restricted because of geographical factors; institutional

limitations; racial, class and gender biases; cultural differences as well as economic
factors. The way legal services are delivered by the legal profession, the nature of court
proceedings, including procedural requirements and the language used, are also barriers
limiting people‘s opportunity to obtain justice

Few would dispute that this list accurately – if perhaps incompletely – describes the barriers today. And
probably most people would agree that ―something needs to be done‖ to remedy the injustices that result. In
itself, it is of concern that these problems exist, but what is even more disheartening about this list is that it
was published in 1992, over 20 years ago, and yet it is still valid. Indeed, some of these issues seem to pose
even greater challenges than ever.

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A number of studies have identified particular forms of disadvantage that constitute barriers to access to
justice, recognizing that enhancing access to justice requires responses that take into account these contextual
barriers. A recent American Access to Justice Index has focused on low income, disability, limited English
proficiency, and gender, race and ethnicity. A New South Wales study identified a much longer list of
characteristics: living with a disability, including intellectual, physical, sensory, psychiatric or acquired
disabilities; cultural and linguistic diversity; Indigenous Australian status; young and older age; geographic
location (remote and rural areas and disadvantaged urban environments); low levels of education and lower
levels of literacy; being gay, lesbian or transgendered; women; living in an institution (prisoners, juvenile
corrective and psychiatric institutions, immigration detention centres and nursing homes) and having been
released from an institution; low income or other financial support; homelessness; not being able to obtain
legal representation for family law or violence matters (men); and living with multiple disadvantages. A US
study that identified 193 separate tasks that self-represented litigants needed to complete during litigation
concluded that whether litigants could carry out certain tasks themselves depended on a variety of factors,
e.g., ―level of education, familiarity with computers, language skills [whether English is the first language
and level of literacy], cognitive abilities and communication skills‖.

In contrast to these studies, recent Canadian studies, such as Roadmap for Change or the Final Report in the
National Self-Represented Litigants Project, have, for the most part, named ―generic‖ solutions, such as an
increased reliance on technology, pro bono representation and limited scope retainers (otherwise known as
unbundled services), meant to make the system easier to access, and have only occasionally considered the
efficacy of these solutions for specific groups who are at a higher risk of exclusion from the legal system. The
goal in most of these reports is that people seeking to access their legal rights have sufficient help in order to
get a fair result. To that end, their proposals are designed to make it easier to obtain legal help or to do
without legal help, to find courts easier to deal with, or to avoid courts altogether.

Despite referring to various disadvantaged groups, the reports too often present ―generic‖ solutions as an
option for everyone who cannot afford representation (and are not eligible for legal aid) or to increase the
efficiency and effectiveness of the system. At best, they gloss over the significant differences among
excluded groups. Furthermore, although most people who could not afford legal representation were
historically those with low income, today many people in the middle class face the same challenge

My purpose here is to argue that some of these common traits (low ―traditional‖ literacy skills (reading and
understanding the written word), low computer literacy, lack of trust in the system, residence in remote areas
of the province, isolation or lack of family or community support, among others) need to be taken into
account in designing or implementing otherwise ―generic‖ solutions to increase access to justice. These traits
constitute a very small piece of recognizing ―diversity‖ while also cutting across different grounds of

264
marginalization. Without care, generic solutions can pose unintended barriers to people with characteristics
such as low literacy skills.

B. Defining “Inclusivity”

Access to justice requires both removing barriers that limit access by disadvantaged groups and proactive
policies and actions that make access easier or more effective. Truly inclusive access to justice places a great
emphasis on understanding the impact various characteristics and experiences have on impeding access, and
on measuring the extent of access by investigating how well the system incorporates those who have
previously faced difficulties. It also requires an understanding of how individuals‘ legal experiences affect
and are affected by their other life experiences

There is one other aspect of ―access to justice‖ that has relevance for understanding the difficulties facing
disadvantaged people and that is the relationship between legal problems and non-legal problems. This is
important because, while exclusion from the legal system often has far-reaching ramifications for most
people, those who continue to be excluded by generic solutions likely also face difficulties accessing other
similarly structured services (such as providing information primarily online). Almost anyone with a legal
problem may find that it is caused by or leads to other, non-legal, problems. However, the risk is greater for
disadvantaged people who face significant challenges in dealing with their legal problems in an effective way
or whose inability to resolve other kinds of problems leads to legal difficulties. One Ontario study found that
―significant proportions [of people reporting problems] reported that they experienced stress-related or
mental illness, loss of confidence, physical ill health, loss of employment or income, and relationship
breakdown‖.

As discussed (all too briefly above), while communities based on race, disability, gender, sexual orientation
and other characteristics face challenges unique or disproportionately disadvantageous to them, it is also
important to identify the circumstances or characteristics that cut across those categories of identities to
prevent people from accessing justice (for instance, living in low income or low levels of education).
Understanding the impact of these characteristics has been crucial to revealing inequality in society and to
increasing substantive equality, an exercise that is ongoing.

The problems persons with disabilities face arise in large part from the fact that the legal system has been
constructed for the able-bodied, for persons whose need for breaks conforms to an expected standard, for
persons who are assumed to be able to absorb information and express themselves without great difficulty,
among other examples. Changes have been occurring to mitigate these problems. For example, the Ontario
Ministry of the Attorney General has issued guidelines for communicating with people with communication
challenges.

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III. GENERIC SOLUTIONS: THE IMPACT OF “OPERATIONAL” BARRIERS

That there will always be large numbers of people who are unable to afford lawyers has been widely
accepted. (In contrast, Justice Thomas Cromwell recently stated that the solution to the issue of unrepresented
litigants is not only to provide ways to help them represent themselves, but to recognize that they need
lawyers.) Recent efforts focusing on affordability have tended to embrace ―self-help‖ as an answer, and make
the assumption that with sufficient information those who cannot afford legal services will be able to
represent themselves.

Thus, it seems to make sense to provide information on-line or on telephone hotlines, available to people
when they need them and wherever it is convenient to access them. It also seems to make sense to promote
―partial‖ legal services, including limited scope retainers and pro bono services. Yet these and similar options
place the onus on the individual to determine the information relevant to their situation and to decide when
they must resort to legal advice or other legal help. There are those who would argue that individuals
representing themselves are pleased to have more control over their own case; however, as a case becomes
more complex, those untrained in law are less likely to know how to address their issues effectively or to
address the arguments made by the other side; as the case progresses, their appreciation of the impact their
lack of knowledge may have on their case is likely to diminish.

Appealing as some of these ideas may be, they can pose operational barriers for a good portion of people who
cannot afford legal representation and who are not eligible for legal aid. By the phrase ―operational barrier‖, I
refer to those factors that constitute barriers to the legal system resulting from the structure or implementation
of a particular initiative intended to increase access to justice. Thus, for example, the format of online
information may pose an operational barrier to persons with low literacy skills because they cannot access the
benefit without a certain degree of literacy.

A. “Operational Barriers”: Literacy and Living in Remote or Rural Areas

1. Literacy

The challenge of lack of sufficient literacy skills derives in large measure from its complex nature and its
ramifications. Literacy is not only about whether someone is able to read; it also encompasses other types of
behaviour and consequent challenges. Yet a significant minority of people lack the required literacy even to
understand the information, particularly since it is often difficult to avoid legal terminology and the
information can quickly become complex.

Low levels of literacy are found disproportionately among Aboriginal populations and persons with
disabilities.

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Literacy and age also intersect. The International Adult Literacy and Skills Survey (IALSS) revealed that
prose literacy decreased with age and that the largest proportion of persons over 65 was at Level 1, a situation
that will presumably change in the future with higher educational attainment in the population generally.

Low literacy may mean difficulty in reading documents the individual receives from the court, being able to
complete the forms required, providing documents requested or answering questions, whether in a criminal or
civil legal context.

2. Living in Remote or Rural Areas

Geographic location, often coupled with other factors, such as living in an Aboriginal community or older
age, also affects access to justice. Ontario has reversed the proportion of its population living in rural and
urban areas over the past 150 years: in 1851, 86 per cent of the population lived in rural areas;

By 2006, 85 per cent lived in urban centres Nevertheless, legal services must still be delivered across the
province, including more remote locations. Yet broadband access is not available in certain parts of Ontario.
Provision of other services, too, is hampered by the long distances between communities and the sparse
population.

Although over 60 per cent of the Aboriginal population lives in cities, ―[n]inety-five of the 127 First Nation
communities in Ontario are located in rural or remote areas or are accessible by air only‖.. The further north
one goes, the greater the likelihood of unstaffed satellite locations that can only be reached by air.

Furthermore, people in the northern parts of provinces may also have less access to the complementary
aspects of the legal system, such as support services or community justice services or, as the Saskatchewan
Northern Access to Justice Committee called them, ―human services‖ such as health services.

Geographic location as a factor affecting access to justice is not limited to northern regions of the province.
Rural living poses problems of transportation, particularly for those who do not have their own car whether it
is because they cannot afford it, have never learned to drive, have reached an age where they find driving
more difficult or are no longer permitted to drive.

B. Generic Responses: Use of Technology and Unbundled Legal Services

As explained above, many of the measures or initiatives that have been proposed and implemented in recent
reports to increase access to justice have tended to be generic. In part, this is because, increasingly, the focus
has been on un- or self-represented litigants as a group. Affordability, rather than diversity of disadvantage
experienced by particular groups, has become the cornerstone of efforts to reform the system. There is no
doubt that the cost of accessing the system is a serious problem that not only affects individuals seeking
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access to the legal system, but court personnel, lawyers, judges and the reputation of the system itself. The
lack of affordable assistance requires redressing, but within a framework that recognizes that other factors
will continue to result in exclusion if they are not taken into account in the options created for unrepresented
litigants to use the system more effectively.

1. Technology

Most recommendations about self-represented litigants involve providing more online information and
hotlines or helplines. Much of what is available on the web is nothing more than ―on-loaded‖ print material,
or its equivalent in electronic form; there is also a great deal of material and quality control is difficult. These
efforts to increase access to justice do have advantages however.

Thus, one group of people for whom on-line information is not helpful, particularly if unaccompanied by
some form of in-person assistance, are those whose level of literacy is low. As discussed above, for many
groups, literacy is only one of a complex web of factors that affect their interaction with the legal system, but
it is one upon which proposed reforms, such as unbundled services or the provision of more self-help
information or increased use of technology generally, rely to be effective.

Audio and image-based technologies can be of limited assistance to persons with low literacy, but the
assumption that everyone can access technology can also be a barrier. Technologies intended to provide
information and instructions to persons who cannot afford legal assistance can pose problems for all litigants
who are likely to need in-person assistance to use them effectively, but it can be a formidable barrier for
people who cannot read it, understand it or apply these tools to their own circumstances.

One popular use of technology has been the ―hotline‖ that people can call for advice or to obtain information.
One U.S. study found, however, that the value of the hotline may be limited by the individual‘s capacity to
take the next step advised by the hotline adviser, such as seeing a lawyer or going somewhere to complete
paperwork. Generally, clients did not follow up advice because they did not understand it, it was too complex
or they could not afford to hire a lawyer.

The study‘s recommendations about hotlines noted that unsuccessful outcomes were related to certain
demographic characteristics, such as low education and low English language skills by Spanish-speaking
clients, even though the hotlines called by Hispanics were staffed by Spanish-speaking advisers. Regarding
other barriers (lack of transportation, stress or fear, for example) it was recommended was that the hotlines
needed to develop protocols for addressing these issues and providing more support to these clients

The use of technology to overcome difficulties of distance may pose challenges at the individual level, since
individuals may not own a computer, be computer illiterate or lack access to high-speed internet. Despite the
highly significant spread of access to the internet, and the high usage among Canadians, delivering
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information online remains a problem in Canada, since even if there is internet availability, it might only be
dial-up, or people living in low-income might rely on publicly accessible computers, such as at libraries.

Technology is becoming increasingly creative and sophisticated, however. Interactive technology may permit
individuals to be taken step by step through preparation of a document, engage with a legal adviser in relation
to a particular question or ―chat‖ with a librarian about how to access and use relevant resources.

Over time, technology may resolve certain of the difficulties facing individuals who cannot afford full legal
representation or even partial representation. However, there remain (and will continue to remain for some
time) people who, because of their literacy skills, difficulty with language or cognitive challenge may feel
even more an ―outsider‖ to the system when expected to use the approach often considered ―the answer‖ to
the self-represented litigant phenomenon -- online information and instruction. They will require some form
of in-person assistance at various stages of the legal process.

2. Unbundled Legal Services

As with technology, unbundled legal services do have advantages for people who cannot afford full
representation: people can obtain legal advice and assistance when they need it for specific functions. This
method should therefore be a more affordable means of obtaining legal services, as well as a way of
providing in-person assistance for persons with low literacy. Unfortunately, unbundled services are not
effective for persons with low literacy skills. To use this method effectively, one must be able to understand
instructions and follow through on those instructions. As with the hotline, this can be difficult for persons
with low literacy, certain disabilities or who have English as a second language.

Persons with low literacy and people with mild cognitive or intellectual disabilities may have considerable
difficulty in expressing themselves or in understanding what they are being told. They may have difficulties
following instructions. These are factors that are not well suited to irregular or unbundled services.
This does not mean that limited scope retainers cannot help some people. It does mean that we should not
assume that they can help everybody who cannot afford full legal representation and that consideration of this
option should also include consideration of making it more effective for those who cannot take full advantage
of it. This can be done by providing plain language and appropriately formatted documents to individuals
who have at least some reading capacity or access to further assistance.

IV. CONCLUSION

It is widely acknowledged that justice remains inaccessible for many people for many reasons, hence the
current major ―movement‖ across Canada to change the tide of inadequate access to the legal system.

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Conferences leading to reports and reports giving rise to symposia dedicated to discussion about
implementation of reports have provided the forum for representatives of many constituencies (government
officials, academics, funders, judges, legal practitioners, library professionals, community organizations and
others) to develop an agenda for change.

Overriding all this potential for change, however, is the common view that governments are not prepared to
provide adequate funding to the legal system. Work is therefore being undertaken to gain a more empirical
understanding of the cost of reforming the legal system as well as the cost of not reforming the system.

I have referred to a number of programs that build on those lessons and knowledge. Not surprisingly, given
their orientation, recent studies and reports at the centre of the current drive to increase access to the legal
system (called ―access to justice‖) do not concern themselves with these large questions or spend much time
explicitly positioning themselves along the continuum of access to justice.

Nevertheless, they do purport to offer proposals that increase access to justice for those who are
disadvantaged when interacting with the legal system, particularly those disadvantaged by economic
circumstances and by other grounds that often coincide with a low income, although the latter are often
discussed only in passing. In doing so, they offer little analysis of whether the individuals on whose behalf
the proposals are made can in fact benefit from them.

I have related two factors, literacy skills and living in rural or remote regions, to two generic measures, the
use of technology and unbundled legal services, that have been widely touted as offering increased access to
justice and are being increasingly being relied on to attain that objective. Adequate literacy skills and
adequate access to the internet are fundamental to using technology effectively.

It will be tempting to believe that we have reduced the challenge of exclusion more than we have if we do not
go beyond the reports to a more nuanced implementation. And if we do not, at least some of those seeking
access to the system will be compromised by the very measures that are intended to provide a solution to their
exclusion from justice.

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