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Published online by Cambridge University Press: 09 June 2015
Since the late 1970s American law journals have published literally thousands of articles on the problem of lawyers’ ethics. In these articles American scholars lament the current state of the legal profession and suggest that something has gone seriously wrong with legal practice and with the way lawyers conceive the idealsand norms of that practice. A few defenders of current ethical standards remain, but the dominant tone of current scholarship is highly critical of lawyers’ seeming ability to remove their “professional” actions from the scrutiny of basic precepts of ordinary morality. In contrast with this American proliferation of critical perspectives on legal ethics, little Canadian scholarship on the subject of lawyers’ ethics exists; as Gavin MacKenzie put it in his 1993 guide to lawyers’ professional responsibility and discipline, Canadian literature on legal ethics is “embarrassingly sparse”. A few American articles on legal ethics have been published in Canadian
1. The following is a by no means exhaustive list of some of the most important and recent treatments of the subject of legal ethics. Allegretti, Joseph, “Rights, Roles, Relationships: The Wisdom of Solomon and the Ethics of Lawyers” (1992) 25 Creighton L. Rev. 1119;Google Scholar Atkinson, Rob, “Beyond the New Role Morality for Lawyers” (1992) 51 Md. L. Rev. 853;Google Scholar Cohen, Harry, “Toward A Philosophy or Theory of the Legal Profession—Monroe Freedman’s “Understanding Lawyers’ Ethics” (1991) 16 Jour, of the Legal Prof. 5;Google Scholar Elkins, James R., “The Moral Labyrinth of Zealous Advocacy” (1992) 20 Capital Univ. L. Rev. 735;Google Scholar Ellman, Stephen, “The Ethic of Care as an Ethic for Lawyers” (1993) 81 Geo. L. J. 2665;Google Scholar Gordon, Robert W. & Simon, William H., “The Redemption of Professionalism?” in “The Law Firm as a Social Institution” (1985) 37 Stan. L. Rev. 271;Google Scholar Hazard, Geoffrey C. Jr., “The Future of Legal Ethics” (1991) 100 Yale L.J. 1239;CrossRefGoogle Scholar Hazard, Geoffrey C. Jr., “Personal Values and Professional Ethics” (1992) 40 Cleveland St. L. Rev. 133;Google Scholar Kleinberger, Daniel S. “Wanted: An Ethos of Personal Responsibility—Why Codes of Ethics and Schools of Law Don’t Make for Ethical Lawyers” (1989) 21 Conn. L. Rev. 365;Google Scholar Koniak, Susan P., “The Law Between the Bar and the State” 70 N. Carolina L. Rev. 1391;Google Scholar Luban, David, Lawyers and Justice, An Ethical Study (Princeton, NJ: Princeton University Press, 1988);Google Scholar Luban, David “Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice” (1990) 49 Md. L. Rev. 424;Google Scholar Kronman, Anthony, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: Harvard University Press, 1993);Google Scholar Rhode, Deborah L., “Institutionalizing Ethics” (1991) 44 Case Wstrn L. Rev. 665;Google Scholar Shaffer, Thomas L., American Lawyers and Their Communities: Ethics in the Legal Profession (Notre Dame: University of Notre Dame Press, 1991);Google Scholar Simon, William H., “Ethical Discretion in Lawyering” (1988) 101 Harv. L. Rev. 1083;CrossRefGoogle Scholar Wasserman, David, “Should a Good Lawyer do the Right Thing? David Luban on the Morality of Adversary Representation” (1990) 49 Md. L. Rev. 392;Google Scholar Wasserstrom, Richard, “Lawyers as Professionals: Some Moral Issues” (1975) 5 Hum. Rts. 1.Google Scholar
2. Some defences of the current state of legal ethics include: Fried, Charles, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale L.J. 1060;CrossRefGoogle Scholar Freedman, Monroe, Lawyers’ Ethics in an Adversary System (1975);Google Scholar Lawry, Robert P., “The Central Moral Tradition of Lawyering” (1990) 19 Hofstra L. Rev. 311;Google Scholar Stier, Serena, “Legal Ethics: The Integrity Thesis” (1991) 52 Ohio St. L.J. 551.Google Scholar
3. MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility and Discipline (Toronto, ON: Carswell, 1993) at 6 (hereinafter MacKenzie).Google Scholar
4. Haber, J.G. & Baumrin, B.H., “The Moral Obligations of Lawyers” (1988) 1 Can. J. of L. & Juris.105 Google Scholar (reprinted from “Philosophy & Law Newsletter“, published by the American Philosophical Association); Lee Firak, Nancy, ’“Ethical Fictions as Ethical Foundations’: Justifying Professional Ethics” (1986) Osgoode Hall L.J. 35 (Nancy Firak was Assistant Professor of law at Northern Kentucky University at the time of publication).Google Scholar
5. Orkin, Mark, Legal Ethics: A Study of Professional Conduct (Toronto, ON: Cartwright and Sons, 1957)Google Scholar; Smith, Beverley G., Professional Conduct for Canadian Lawyers (Toronto, ON: Butterworths, 1989);Google Scholar MacKenzie, supra. This is not to suggest that these books do not contain critical aspects, or that they merely enumerations of Law Society rules, but rather that they are, at base, trying to do something quite different from the American literature 1 am discussing.
6. And 1 should emphasize that my paper will in no way rest on such a claim.
7. With, of course, the important exception of Quebec. I should emphasize that my study of Canadian legal culture is inadequate regarding the issue of the uniqueness ofQuebec legal culture and practice. Any further elaboration of the arguments made here must occur with the proviso that Quebec is culturally and legally special, so that my conclusions may simply be inapplicable to it.
8. This latter suggestion will obviously be tentative given that it ismade in the absence of a survey of Canadian legal practice; it is made primarily to suggest the direction that such a survey might take.
9. Alberta already has rules of professional conduct closer to the American model; Ontario is thinking of following suit.
10. Susan Koniak has identified such stories as part of the legal profession’s “nomos” or law: Koniak, supra note 1 at 1402.
11. My discussion of the Kaye, Schoier debacle is taking from Beck, Susan & Orey, Michael, “They Got What They Deserved: Asset Freeze and All, Justice was Done in the Government’s Case Against Kaye, Schoier” (1992) Am. Lawyer 437 (hereinafter Beck).Google Scholar
12. This despite the fact that Lincoln was not involved in litigation with the regulatory agencies. This fact was one of the controversial points regarding Fishbein’s advocacy although I will not be emphasizing it here.
13. Beck at 439.
14. Beck at 447.
15. My description of the Singer, Hutner case is taken from Lawry, supra note 2 at 327–32.
16. Cited in Luban, 1988, supra note I at 54. But cf.infra note 54.
17. Rhode, supra note 1 at 666.
18. Luban, 1988, supra note 1 at 7.
19. Luban, 1988, supra note I at 7. Koniak, supra note 1, has described “confidentiality, and particularly the duty to keep client confidences from the state” (1427), as the central principle which separates the “law” or “nomos” of the bar from that of the state. It is a norm “so central to group definition … that the group perceives threats to the norm as threats against the group itself (1427). Elkins, supra note 1, has suggested that lawyers in fact “internalize the notion of zealous advocacy” so that “it becomes a habit and a way of life … The habit of zealousness is internalized as a way of knowing and embedded in our sense of professionalism” (739). Hazard, 1991, supra note 1, describes the lawyers’ ethical duties as “a picture of protagonists who are faithful to client interests under a governing but qualified obligation of truthfulness in dealing with the courts (in their role as advocates) and in conducting business transactions (in their role as legal counsellors). The structure of the Rules is simultaneously a self-definition and a reflection of the functions that the profession’s clientele call upon it to perform.” (1249).
20. Simon also rejects the use of any other categorical principle.
21. Simon, supra note 1 at 1113.
22. Ibid, at 1113–14.
23. Nole that Luban rejects altogether the idea that moral non-accountability is an acceptable part of a lawyer’s role morality.
24. Luban, 1990, supra note 2 at 427.
25. Rhode, supra note 1.
26. Kronman, supra note 1; Gordon & Simon, supra note 1.
27. Gordon & Simon, supra note 1 at 234.
28. Ibid, at 235.
29. Kronman, supra note 1 at 364.
30. Disciplinary proceedings reported in the N.Y. L.J.
31. Law Society of Upper Canada, I Disciplinary Digest 1–5.
32. 60–70%
33. 25%
34. 38%. The Ontario numbers may appear less striking than those from New York; however, the reports in the Disciplinary Digest do not suggest that the use of the rules in Ontario is much more comprehensive than that in New York. The allegations against lawyers which did not relate to financial mismanagement or failure to comply with formal requirements of the law society (filing Forms 2/3 and replying to Law Society correspondence) tended to result from the collapse of a lawyer’s practice rather than from the breach of specific provisions of the Law Society’s Rules of Professional Conduct (which, it should be noted, closely resemble the CBA rules). As Gavin MacKenzie has said “Everyone who works with Canadian rules of professional conduct quickly learns that they are of limited use in answering practical questions of how lawyers should conduct themselves in specific situations” (MacKenzie, supra note 3 at 25–5).
35. 35. Because I am looking at the rules for aspirational rather than practical purposes, I have not looked into the question of how the rules are interpreted in practice. Since my concern is not with the rules as they are applied, but is rather with the rules as they are written, such questions of interpretation seem less important.
36. Gavin MacKenzie gives a brief summary of the history of both the ABA and the CBA rules. See MacKenzie, supra note 3 at 25–2 — 25–6.
37. Although I acknowledge that this is speculation.
38. In particular, they are differences regarding the degree to which a lawyer must put his client’s interests above all others.
39. The definition is taken from the Oxford English Dictionary.
40. And I think the note’s use of the dictionary definition of integrity suggest thai it is.
41. Arendt, Hannah, Eichmann in Jerusalem: A Report onthe Banality of Evil (New York: Viking Press, 1963).Google Scholar
42. Postema, Gerald, “Self-Image, Integrity and Professional Responsibility” in The Good Lawyer, David Luban, ed. (Totowa, NJ: Rowman and Allanheld, 1984) at 309.Google Scholar
43. That put forward by the “Kutak Commission”—the American Bar Association Special Commission on the Evaluation of Professional Standards.
44. “A lawyer may reveal [confidential] information to the extent the lawyer reasonably believes necessary:& (2) to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property interests of another.” Cited in Koniak, supra note 1 at 1441.
45. Cited in Koniak, supra note 1 at 1444.
46. One potential criticism of this argument arises from the fact that one of the few differences betweenthe CBA Code and the Rules of Professional Responsibility enacted by the Law Society of Upper Canada is that the Law Society rules do not have the mandatory exception to the principle of confidentialityfound in the CBA. The Law Society rules have the permissive and court facilities exceptions only. Thus it may be that the opposition to a broader exception in Canada simply focused on the provincial barassociation (which, as will be discussed in Part IV below, tend to be much more powerful than the American counterparts) rather than the CBA. I have no evidence at this time on the relative vitality of the CBA and the Law Society, although given the debate surroundingthe recent CBA report on the status of women in the profession, it may be plausible to maintain that it is significant that the CBA wasable to qualify the rule of confidentiality while the ABA was not. Moreover, if this is not so it remains the case that the Law Society exception, even if not mandatory, is broader than that in the ABA Model Rules.
47. And it may be that this provision suggests that there is no room for moral non-accountability at all within the standard conception.
48. “My view is that as a privileged member of society it behooves you at some point in time in your professional career to dedicate your skills for a limited period to the public practice of law in the common good” Callaghan, F.W., “Practical Responsibilities of Members of the Bar” (1987) 5 Gazette 71 Google Scholar (Speech made at Call to the Bar 1987, London, Ontario, April 15, 1987); “Never forget that the legal system in which your marshal your skills does not exist for the sake of lawyers … It is not the playground of lawyers but rather the field of vindication for the public interest and the rights of individuals. As part of that system it is part of your obligation to ensure that it really does serve the public as best it can” Campbell, Archie, “Values and Obligations” (1987) 9 Gazette 162 (Speech at Call to the Bar 1987, Toronto) (hereinafter Campbell);Google Scholar Johnson, D.L., “The Role of the Lawyer in our Society” (1987) 13 Gazette 119 (speech to University of Western Ontario convocation, 1987) (hereinafter Johnson)Google Scholar.
49. Finlayson, George D., “The Over-Lawyered Society” (1981) Gazette 123 Google Scholar (address at the Convocation and the Call to the Bar ceremony in London on April 15, 1981); Finlayson, George D. “The Lawyer As A Professional” (1980) 2 Gazette 229 (Call to the Bar Ceremonies, April 1980) (hereinafter Finlayson, 1980).Google Scholar
50. Honsberg, John, “Legal Rules, Ethical Choices and Professional Conduct” (1991) 10 Gazette 114 (hereinafter Honsberg).Google Scholar
51. Ibid, at 115.
52. In the Law Society of Upper Canada’s Code of Professional Responsibility. These notes are identical to those in the CBA Code, Chapter I, discussed above.
53. I am not sure that Honsberg’s strong interpretation of the integrity rule is supported by the text of the rule, or would be that used by a bar association whichapplied it. Moreover, it is potentially inconsistent with the idea, discussed below, that even unpopular clients are entitled to legal representation. The key point here, however, goes not to whether this is, or is not, the best interpretation of the rule, but rather to the idea that the principle of integrity is important enough in the Canadian Bar’s nomas to allow this kind of interpretation to be made. The important point is that the interpretation is possible, not that itis accurate.
54. La Forest, G.V., “Integrity in the Practice of Law” (1987) 2 Gazette 41 at 42.Google Scholar Interestingly, La Forest quotes a 19th century response to Lord Brougham made by the Lord Chief Justice, Sir Alexander Cockburn: “My Noble and learned friend Lord Brougham said that an advocate should be fearless in carrying out the interests of hisclient; but I couple that with this qualification and this restriction—that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interests of his client per fas, not per nefas; it is his duty to the utmost of his power, to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and justice.” This quotation provides, if nothing else, a counter-quote for use against those who would see the principle of partisanship as a timeless notion under attack only because of the mushy sentiments of the late 20th century. It may also suggest that while the U.S. standard conception can be understood as developed from a 19th century English ideal, so can the quite different Canadian standard conception.
55. Cherniak, Earl A., “The Ethics of Advocacy” (1990) Lectures LSUC 275.Google Scholar
56. Ignoring the limited and elite nature of Globe and Mail readership.
57. Meechan, Mary, “More Than a Mere Citizen: The Special Responsibilities of The Lawyer in To-Day’s Society” (1980) 14 Gazette 284 at 292.Google Scholar
58. Arthur, A. Wishart, Q.C., “Law—The Great Profession” (1973) 7 Gazette 127 at 132Google Scholar (Speech to Academic Convocation, Toronto, March 23, 1973).
59. Johnson, supra note 48 at 121.
60. Callaghan, F.W., “Practical Responsibilities of Members of the Bar” (1982) 1 Gazette 71 at 75Google Scholar; Willis, John, “What I Like and What I Don’t Like about Lawyers” (1970) 4 Gazette 52 at 58.Google Scholar
61. LeDain, Gerald, “1976 Convocation of Osgoode Hall Law School of York University” (1976) 10 Gazette 221 at 227.Google Scholar
62. Stephenson, Bette, “The Social Contract of A Self Governing Profession” (1980) 3 Gazette 255 at 256.Google Scholar (Speech at Call to the Bar Ceremony, Toronto, 1980). It should be noted that Bette Stephenson was Minister of Education at the time and was not a lawyer; however, a similar point is made, at least implicitly, by Sydney L. Robins, in a speech given at the Advocates Society Annual Dinner in 1972: Robins, Sydney L., “Our Profession and the Winds of Change” (1972) 6 Gazette 137.Google Scholar
63. Although in light of what I say below regarding “unpopular clients” the cases in which this refusal would be justified is rare. More common is the notion that through independence from her client the lawyer will take a pro-active stance in turning that client away from morally doubtful courses of action.
64. Willis, John, “What I Like and What I Don’t Like About Lawyers” (1970) 4 Gazette 52 at 58.Google Scholar
65. Ibid.
66. Robins, Sydney L., “Our Profession on Trial” (1973) 7 Gazette 1 at 5:Google Scholar “Every citizen must be able in time of need to find … an advocate who will put his case before any tribunal, no matter how difficult or unpopular it may be”.
67. Ibid, at 6.
68. Campbell, supra note 48 at 166.
69. Honsberger, supra note 50 at 115.
70. Johnson, supra note 48 at 122.
71. Finlayson, 1980, supra note 49 at 230 and 235.
72. The category is provided by the Canadian Abridgement which indexescases under the category of a lawyer’s “Duty to Others”. I looked at Abridgementcases included under this heading and decided by any provincial court of appeal subsequent to 1970.
73. Cassey v. Morrison (1993) Ont. C.A (unreported); R. v. Graff (1993), 80 C.C.C. (3d) 84 (Alta C.A.): Granville Savings and Mortgage Corp. v. Slevin (1992), 93 D.L.R. (4th) 268 (Man. C.A.); Everingham v. Ontario (1992), 88 D.L.R. (4th) 755 (Ont. Div. Ct.); Brosseau v. Brosseau (1989), 63 D.L.R. (4th) 111 (Alta. C.A.); Commerce Capital Trust Co. v. Berk (1989), 57 D.L.R. (4th) 759 (Ont. C.A.); Kutilin v. Auerbach (1988), 54 D.L.R. (4th) 552 (B.C.C.A.); Szarfer v. Chodos (1988), 54 D.L.R. (4th) 383 (Ont. C.A.); Re Abacus Cities Ltd., [1988] 1 W.W.R. 78 (Alta. C.A.); R. v. Sweezey (1987), 39 C.C.C. (3d) 182 (Nfld. C.A.); Korz v. St. Pierre (1987), 43 D.L.R. (4th) 528 (Ont. C.A.); Garrant v. Moskal, [1985] 6 W.W.R. 31 (Sask. C.A.); Klingspon v. Ramsay, [1985] 5 W.W.R. 411; R. v. Elliott (1975), 28 C.C.C. (2d) 546 (Ont. C.A.); R. v. DePatie, [1971] 1 O.R. 698 (C.A.).
74. Elliott, supra note 73 at 549.
75. Sweezey, supra note 73 at 188.
76. Where the role of zealous advocate is accepted even by critics of the standard conception.
77. Szarfer v. Chodos (1986), 27 D.L.R. (4th) 388 at 405 (Ont. H.C.J.) (affirmed, supra note 73).
78. I admit that this argument may seem a bit tenuous and making too much out of a comment which comes only late in the judgment, where the court considers the issue of exemplary damages. Nonetheless, it seemed to me to be, perhaps because of the association with traditional morality arising from the adultery aspect of the case, reflective of an attitude to the lawyer's obligations as rooted notions of morality and ethics more general than the specific idea that a lawyer cannot misuse information received in confidence.
79. [1989] 2 W.W.R. 289 (S.C.C.) (hereinafter Andrews).
80. Le Dain J. heard the case but took no part in the judgment which accounts for the unusual six person composition.
81. Andrews at 326 (per Wilson J.).
82. Andrews at 327.
83. Andrews at 319 (per Mclntyre J.).
84. Remembering particularly, here, the rules regarding mandatory withdrawal.
85. CBA Code, Ch. XIII.
86. A paradigmatic example of this shift is demonstrated by the growthof Skadden, Arps. While Skadden is the firm perhaps most closely linked with the Rambo litigation tactics of the early 1980s, it is also a firm which has prided itself on the openness of its recruitment policies. See Caplan, Lincoln, Skadden: Power, Money, and the Rise of a Legal Empire (New York: Farrar Straus Giroux, 1993) at 156–59.Google Scholar
87. If the Canadian model is closer to Kronman’s model of the lawyer-statesman it may or may not be because the current model of Canadian legal ethics is closer to the model which existed in the United States prior to the 1960s and to which Kronman’s book looks back. I have no position on this question, having compared only the current U.S. model to the current Canadian model.
88. It may be that the danger of creating an elitist profession arisesin the works of Simon and Luban as well in so far as they require that the lawyer assess the moralityof a client’s aims before pursuing them. To the extent that this is so it may simply be that the attempt to reduce zealous advocacy has within it the inherent risk of creating the elitist/exclusionary profession. If this is the case it only means that the complex relationship between the benefits and problems of the Canadian model is likely to continue in attempts to resolve this problem.
89. The term is Deborah Rhode’s: see Rhode, supra note 1.
90. Glenn, H. Patrick, “Professional Structures and Professional Ethics” (1990) 35 McGill L.J. 424.Google Scholar
91. Ibid, at 431.
92. This is simply a difference in starting point: if there is a relationship between professional structures and ethical aspirations it is likely to be a dialectical one with each reinforcing and shaping the other in important ways. Thus, while 1 start with aspirations and move to structures, and Glenn starts with structures and moves to aspirations/practice, the key point, based on identifying the importance of the relationship between these things, remains the same.
93. I also differ from Glenn inso far as my scope is at once narrower (Glenn considers Europe, the U.S. and Canada) and more detailed.
94. McKinney’s 1994 New York Rules of Court §1200: Appellate Division, All departments-Disciplinary Rules of the Lawyers’ Code of Professional Responsibility.
95. Law Society Act, R.S.O. 1990, c. L.8
96. By which 1 mean external to those actually organized by the Law Society itself. And it should be noted that the reach of the Law Society extends beyond those activities it controls directly; in particular, the Law Society’s requirements impose constraints on law school curriculum in so far as there are certain basic courses that a law school must provide in order for its graduates to be eligible for call to the Ontario Bar.
97. For rules regarding attorney admissions see McKinney’s 1994 New York Rules of Court §602 (Supreme Court, Appellate Division, First Dept.); §690 (Supreme Court, Appellate Division, Second Dept.); §805 (Supreme Court, Appellate Division, Third Dept.); §1022 (Supreme Court, Appellate Division, Fourth Dept.).
98. Phone conversation with Law Society staff member, November 1994.
99. The courthouse, not the law school.
100. 12.5% of what Ontario lawyers pay.
101. McKinney’s 1994 New York Rules of Court §118.1. Attorneys in both New York and Ontario are also obligated to pay interest received from general trust accounts to charitable organizations which direct the funds to legal aid. In Ontario this organizationis run by the Law Society, tinder the auspices of the Law Society Act, and uses the funds it receivesfrom these and other sources to benefit legal aid, legal education and law libraries, as well as to help defray the costs of class actions. (Law Society Act, s. 55).
102. The Benchers are senior members of the profession elected to theoffice. The procedure for discipline is set out in the Law Society Act, s. 33.
103. Law Society Act, s. 44(1).
104. McKinney’s 1994 New York Rules of Court § 1200.
105. The disciplinary procedures for each department are codified in:McKinney’s 1994 New York Rules of Court §603 (Supreme Court, Appellate Division, First Dept.); §691 (Supreme Court, Appellate Division, Second Dept.); 806 (Supreme Court, Appellate Division, Third Dept.); § 1022 (Supreme Court, Appellate Division, Fourth Dept.).
106. Discussed in Part I, supra. See text accompanying note 25.
107. Note that Gordon “ Simon, supra note 1, also believe thatit is through institutional structures that lawyers can foster an ethically beneficial professional identity.