Introduction sources of Legal Ethics



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INTRODUCTION




Sources of Legal Ethics





  1. Case law & Legislation – i.e. negligence, fiduciary obligations, conflicts of interest, taxation of lawyers’ accounts, civil and criminal procedure, solicitor-client privilege, civility, judicial behaviour, status of the legal profession




  1. Rules of Professional Conduct – CBA’s Model Code of Prof Conduct; Federation of Law Societies of Canada’s 2009 Model Code of Prof Conduct (most prov. law societies in process of adopting a version of the FLSC Model Code)




  1. Law Society Discipline Decisions – incl. definition of professional misconduct (when practicing law), conduct unbecoming (outside legal practice); disciplinary decisions set out standard of proof and sorts of sanctions




    1. Available on LSBC website

    2. May be reviewed/varied by courts




  1. Principles or “norms” of lawyering – scholarly writing by academics and lawyers; pursuing a “life well lived” (when gap b/w obligations imposed on lawyers by law and ordinary morality, code needs to help guide lawyer’s response to that gap – i.e. whether to disclose info that relates to potential harm to 3rd parties)




    1. Requires ability to identify that ethical issue has arisen (intuition)

    2. Requires judgment to respond to ethical issue appropriately

    3. Requires motivation/courage to put response into action



Philosophies  How to think about “Normal” Ethics





  1. Virtue ethics – Aristotelian idea that people have virtues, i.e. compassion, fairness, dignity (and vices) that point them towards (or away from) ethical conduct; though also requires practical judgment to apply virtues to situation




  1. Utilitarianism – greatest good for the greatest number (or least harm to the fewest number), society is best when overall human interests are maximized; rests on belief that human nature is to maximize self-interest; consequentialist; this is more a way of judging whether decision is ethical, not a means of reaching ethical decisions (as impossible to assess consequences of one’s actions in advance)




  1. Kantian/Deontological rule-based; humans have capacity to reason: freedom of choice and action; we must treat every person as an end, not as a means of exercising your own free will.




  1. Postmodernism – sees world through the lens that people can’t be removed from their desires and impulses (contrary to Kantian); ethics are subjective assessment which d/maker must take responsibility for and justify




  1. Pluralism – there are various values, and various ways to identify which are important; attempts to find unifying values impossible; we must weigh different values in different contexts



What is an “Ethical Lawyer”? Competing Conceptions

1. Loyal Advocacy


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

  • Imposes obligations on lawyer:

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

  2. place interests of the client above her own

  • Purpose:

    • Maintaining person’s autonomy from improper state interference requires every person right to access the justice system (which is done through lawyers)

    • Lawyer cannot provide meaningful help w/out being loyal to client’s interests



WOOLLEY’S “In Defense of Zealous Advocacy” – client’s interests always first


  • Re. the Personal Morality Objection:

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

    • To ignore the law based on a moral objection is to undermine legality all together

    • This is in contrast to the personal morality view that lawyers need to make choices when their views conflict with the law

  • Re. the Morality-of-Law Objection

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

  • In defense of the Lawyer as Resolute Advocate

    • Law creates civil society, and so lawyers need to be zealous advocates when permitted by law because it maintains our society

    • If lawyers make decisions for clients, rather than using law to assist clients to make decisions, they’ve usurped the function of the law to resolve disagreement

    • Lawyer must learn to live with moral complexity



Duty of Loyalty comes from Fiduciary Duty



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

Facts
Held

- The duty of loyalty from the time of King George IV endures today because it is integral to the admin. of justice and public confidence in the system (a litigant needs undivided loyalty)

- The duty of loyalty is intertwined with the concept of a fiduciary duty**

- Duty of loyalty engages 3 dimensions:

1) duty to avoid conflicting interests

2) duty of commitment to client’s cause (“zealous representation”)

3) duty of candour

R v Strother (2007 SCC):

Held

Majority: Binnie, J. said that fid. duty obligations may “go beyond what parties bargained for”

And Duty of loyalty to client may arise under K, but more obviously arises under fiduciary obligation. It is not exhausted by the lawyer’s duty to provide proper representation or the obligation to avoid conflict with other clients  must also avoid personal conflicts (page 314).


Dissent: McLachlin, CJC said that fiduciary duty only applies to what was contracted for



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

Facts

S was C’s lawyer on personal injury claim; during the representation, learned of marital difficulties

Lawyer then had affair w client’s wife.



Held

 breached duty of loyalty, and fid. duty; had conflict of interest; committed prof. negligence
Duty of Loyalty:

Lawyer acted in his own interest and to personal benefit; engaged in behaviour that harmed client  breached conflict of interest rule

… even if NOT RELATED directly to case

Lawyer did not discharge onus that he acted reasonably



Confidential Info:

S also misused confidential info (the marital problems) for his own benefit

 lawyer was in breach of prof. duty to client, this breach was cause of client’s post-traumatic neurosis; breach constituted prof. negligence and demonstrated an unreasonable lack of skill and fidelity in his prof. and fid. duties as lawyer



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



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

Facts

  • M was Bernardo’s lawyer; upon client instructions, he took videotapes from Bernardo’s home

  • He did not disclose them to the Crown and kept them for 17 months

  • Received advice (from having colleague ask hypothetical q to Sr. lawyer) that didn’t need to assist in Homolka prosecution (i.e. disclose tapes)

  • He said his intent was to use them for the defence, and not bury them




Held

M narrowly acquitted of obstruction of justice (didn’t have necessary MR)




Notes

The defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence or by producing documentary or physical evidence.

What should a lawyer do in that situation? (1) Turn tapes over to prosecution either directly or anonymously; (2) Deposit them with TJ (3) deposit property with court to facilitate access by the prosecution or defence for testing or examination (4) Disclose their existence to prosecution and prepare to do battle to retain them (see FLSC model code below)



BC code 5.1-2

Lawyer as Advocate (when acting as an advocate, a lawyer must not:

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;)






LUBAN’s “The Adversary System Excuse” (2007) (Critique of Loyal Advocacy)


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

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

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

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


Non-consequentialist justifications of adversary system:

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

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


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

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


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

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

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

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

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



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




FARROW’S “Sustainable Professionalism” (2008)


  • Middle ground b/w Loyal Advocacy and Moral Agency

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

  • Plurality of interests:

  1. Client interests

  2. Lawyer interests

  3. Ethical and professional interests (of lawyers and the profession)

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

  1. Public interest

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



Woolley/Farrow Views on Integrity



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

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


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

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







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