The Lawyer’s Role – Traditional and New Approaches 4

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Overview/Introduction 2

What are ethics; types of reasoning 2

Tanovic Article: Ethical Code for Law Students 2

The Lawyer’s Role – Traditional and New Approaches 4

As a Resolute Advocate - Woolley 4

See also: R v Neil (Duty of Loyalty) – resolute advocate 4

Non-resolute advocate: David Luban 4

Sustainable Professionalism: alternative to advocate - Trevor CW Farrow 5

Self-governance and its limits 7

Characteristics: Professional Self-Regulation 7

Arguments in Defence of Self-regulation 7

Critical Discussion of Self-regulation (Devlin and Heffernan) 8

Arguments Pro and Con self-Regulation (Devlin & Heffernan) 9

Alternative models: qualified self-regulation 9

Composition and Challenges 11

Women in the Profession 11

Gender and Race in the Construction of Legal Professionalism: Constance Backhouse 11

Canadian Bar Association: business arguments for retaining women 12

Sexual Harassment 12

Benchers’ Bulletin, “Milestones for BC women in law”, “We’ve come a long way, baby… or have we?”, “Sexual harassment, not yet a relic” (p S-67) 12

Nova Scotia Barristers’ Society, It will be Our Little Secret (p S-52) 12

Substance Abuse 12

High-functioning Alcoholics: Lawyers are not Above the “Bar” – Sarah Benton 12

Guest Speaker – LAP (Lawyers’ Assistance Program) – Doug Eastwood 13

Lawyers Assistance Program BC 13

Some tips on Warning Signs of Addiction 13

FAQ (Programs & Services) 13

Mental Health also an issue for lawyers 14

Law Society of BC 15

Admission to practice 15

Law Society Fitness Requirements 15

1. Respect for the rule of law 16

2. Honesty 16

3. Governability 16

4. Financial responsibility 16

5. Mental Health: Ability to screen restricted 17

Mohan (or Re: Applicant 5): Cheating, denied admission (reversed) 17

Character screening (my notes) 18

Discipline Proceedings 18

1. Complaints & Investigation 18

2. Hearings 18

3. Penalty/Sanction 19

Conduct Unbecoming 20

Advertising 20

BC Code of Conduct 20

Law Society of British Columbia v Jabour: Broad power of the benchers to restrict advertising, example of bad ad 21

EXAMPLES of potentially problematic advertising 21

Solicitation of Business 22

Law Society of Saskatchewan v Merchant (Law society hearing cttee 2000) 22

Use of Media for Self-Promotion 23

Stewart v Canadian Broadcasting Corp (1997 OJ) 23

The Client Relationship (forming/ending) 23

Choice of Client 24

BC Code 2.1-5(c) 24

Acceptable to reject client if: 24

Where client or cause is unpopular but lawyer can still reasonably represent, must consider (Proulx & Layton – crim context): 24

Two perspectives on client selection 24

Criminal defence context: 25

Forming the Relationship 25

Descoteaux v Mierzwinski: S-C relationship established before retainer signed - first dealings 25

Terminating the Relationship 26

BC Code s3.7-1 26

Withdrawal from Criminal Proceedings 26

BC Code 3.7-4 26

Factors for court to consider in allowing withdrawal: 26

R v Cunningham (2010 SCC): Cannot terminate if it will put client rights in jeopardy 26

Duty of Loyalty 28

Conflicts of Interest & Consent 28

Bright line rule (R v Neil 2002 SCC – cited in McKercher) 28

R v Neil (2002 SCC) – Advocate’s Duty of Loyalty 29

CNR v McKercher (SCC 2013) – Conflict b/c adverse interests 29

Bright line rule (R v Neil 2002 SCC) 30

Sexual Relationships with Clients 31

Law Society of Upper Canada v Hunter (2007 LSUC Hearing Panel) – Sexual relationship with client not per se prohibited 31

Personal relationships between lawyers 32

Duty of Confidentiality 32

BC Code: S 3.3 32

Examples 33

Descoteaux v Mierzwinski: duty created at first contact 34

Exceptions to the Duty of Confidentiality 34

Authorization by the client (BC Code 3.3-1(a)) 34

Public Safety Exception 34

Test for public safety exception 34

BC Code 3.3-3 35

Smith v Jones: Illustrates public safety exception 35

Solosky: Public interest can outweigh s-c privilege for inmates 36

Breaching Confidentiality to Protect Reputation 36

Collecting Legal Fees 37

R v Cunningham – Duty of confidentiality in withdrawal from rep (non payment) 37

In order to get advice about proposed conduct 37

Ethics in Advising & Negotiation: Key Duties 38

1: Competency 38

2: No illegality 38

Dishonesty, Fraud by Client (BC Code 3.2-7) 38

Test Cases 39

Law Society of Upper Canada v Sussman (1995 LSUC Disc. Cttee) – Counseling to Disobey a Court Order (Sanctioned) 39

Circumstances in which you can counsel a client to disobey a court order: 39

Money Laundering and other Fraudulent Activities 40

No-cash rule (really a low-cash rule) – Law Society Rules 3-51.1 40

Client Identification Rules (FLSC model rule) 41

Federation of Law Societies of Canada v Canada (AG) BCCA (on appeal) 41

Counselling vs Advocating - David Luban: Risks for In-House Lawyers 42

3. Honesty 43

Lying - Stephen Pitel 43

Lying in Negotiations 44

BC Code 5.1-2: lying to tribunals, judiciary 44

Law Society of Newfoundland and Labrador v Regular – lying to other legal counsel 45

Law Society of Alberta Code of Conduct 6.02(2) 46

Court: Advocacy and civility 47

Ethics at Trial 47

Witness Preparation 47

R v Sweezey: Sanctions for improperly counseling witness 47

Cross-Examination 48

R v Lyttle (SCC): Scope of Cross-Examination – good faith basis 48

R v R (AJ): Content of cross-examination 48

Bring All Relevant Case Law to Judge 49

General Motors Acceptance Corp of Canada v Isaac Estate – Failure to Bring Relevant Decision to Judge 49

Does Civility Matter? – Alice Woolley (she says not really) 49

Definition: Civility 50

Civility in the Legal Context: Negative Consequences 50

Gender, Diversity, and Civility – Amy Salyzyn: gendered nature of civility debate 51

R v Felderhof (2003 CR): High threshold for incivility between counsel 52

Marchand v Public General Hospital Society of Chatham (2000 ONCA): Cited for high threshold for incivility 53

Role of Crown Counsel 54

Ethical Duties of Crown & Areas of Scrutiny 54

Actual role of the prosecutor 54

Ethical Duties of Crown Counsel 55

Overzealous Advocacy 55

R v Boucher (1955): Inflammatory jury address = violates 55

Krieger v Law Society of Alberta (SCC 2002): Crown core functions not subject to Law Soc. 56

Duty of Defence Counsel 57

Officers of the Court – special duties in crim context (applies to CROWN too) 57

Must not mislead the court 57

Must point out irregularities in conduct of trial 57

Duty not to make frivolous arguments 57

Duty of civility 58

Duties to the Client 58

Resolute Advocate 58

Confidentiality 58

Defending a guilty client: don’t judge! 58

Marshall Inquiry: Belief in guilt compromises ability to mount defence 59

Custody and Control of Real Evidence (& duty to disclose) 59

R v Murray 59

What should you do with real evidence? 60

Model Code Commentary (not adopted in BC) 61

Plea Bargaining 61

BC Code 5.1-7 61

Four Main Ethical Obligations of Defence in Plea Bargain 61

R v(K)S: Must admit factual and mental elements of guilty plea 62

Checks on defence counsel behaviour: less than crown 62

Ethics for Corporate/Government Counsel 63

Professional responsibility: Milton Regan, Jr. 63

“Corporate Counsel as Corporate Conscience” Paul Paton, 63

BC Code of Conduct: Dishonesty when client is an organization 63

Wilder v Ontario (Securities Commission) (OJ): OSC has jurisdiction to make orders against lawyers 64

HSBC: Tips and Situation 65

Access to Justice 65

Recent Reports on Access to Justice 66

Code of Professional Conduct 67

Criticizing courts and tribunals: a proper balance 67

Competency and Access to Justice 67

Assessing for Family Violence – example of contextual nature of judgments 67

Diversity in the Legal Profession 68

Diversity of Areas of Practice 68

Other considerations 69

Access to Justice and Children 69

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