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Published online by Cambridge University Press: 09 June 2015
Lawyers in the Province of Ontario are regulated by the Law Society of Upper Canada, which has produced the Professional Conduct Handbook. Ensuring compliance by its members with the rules contained in the Handbook is part of the profession’s commitment to public service and of its role as a self governing body. As a former treasurer, Laura Legge, expressed it:
We are the governing body of the lawyers in the province.... We must be there to protect the public and to see that there are qualified lawyers to give service.... We cannot represent the interest of the profession, only insofar as the interest of the profession needs to be represented to protect the public.
This research was sponsored under a strategic grant from the Social Sciences and Humanities Research Council of Canada. The project is endorsed by the Law Society of Upper Canada and the Canadian Bar Association and has received organizational and financial support from the Westminster Institute for Ethics and Human Values.
1. Law Society Act, R.S.O. 1990 c. L-8.
2. The Law Society of Upper Canada, Professional Conduct Handbook (Toronto: Law Society of Upper Canada, 1962, as amended to May 26th, 1995)
3. Legislative Assembly of Ontario, Standing Committee on Procedural Affairs, record of proceedings, 15th September, 1983, afternoon sitting, quoted by Mew, Graeme “Lawyers: The Agony and Ecstasy of Self-Government” (1989) 9 210 Google Scholar at 215.
4. See, Robinson, Darryl “Ethical Evolution: The Development of the Professional Conduct Hanbook of the Law Society of Upper Canad’ (1995) 29 The Law Society of Upper Canada Gazette 162”95.Google Scholar This work was done under the auspices of this research project, supervised by Professor M.A. Wilkinson, and financially supported by the firm of Osier, Hoskin & Harcourt. The history of the Canadian Bar Association’s development of its code of ethics is chronicled by Pue, W. Wesley “Becoming ‘Ethical’: Lawyers’ Professional Ethics in Early Twentieth Century Canada” (1990) 20 Man. L.J. 227.Google Scholar
5. See,for example, Greenspan, Edward “The Quality of Life and the Practice of Law” (1992) 26 Law Soc. Gaz. 86.Google Scholar
6. Rhode, Deborah L. “Ethical Perspectives in Legal Practice” (1985) 37 Stanf. L.R. 589. at 590.CrossRefGoogle Scholar
7. See, Daniels, Ronald J. “Growing Pains: The Why and How of Law Firm Expansion” (1993) 43 U. of Tor. L.J. 147.CrossRefGoogle Scholar(includes analyses of interviews conducted with senior partners in 40 leading Canadian law firms in 1989–90); Stager, David A.A. & Foot, David K. “Changes in Lawyers Earnings, the Impact of Differentiation and Growth in the Canadian Legal Profession” (1988) 13 Law and Soc. Inquiry 71(statistical analysis based on evidence in the 1970 and 1980 censuses).CrossRefGoogle Scholar
8. The other papers in this issue represent some of the fruits of the theoretical branch of the project.
9. The Practice Advisory Service was established by the Convocation of the Law Society of Upper Canada in 1980. It provides advice and assistance to lawyers who contact it with a problem which has arisen during practice. Patricia Rogerson of the Practice Advisory Service reports that about 800 calls were received in 1993.
10. Barry Hoffmaster is Professor of Philosophy at the University of Western Ontario and Director of the Westminster Institute for Ethics and Human Values. Don Buckingham was formerly Visiting Professor at the Faculty of Law at the University of Western Ontario and Assistant Director at the Westminster Institute for Ethics and Human Values. He is now an Associate Professor of Law in the Working Group on Agriculture, Law and the Environment at the University of Saskatchewan.
11. The recent difficulties being experienced by the Law Society of Upper Canada may make this a very timely inquiry. See, for example, Stager, David A.A. & Canon, Margaret “Uncivil Society: Legal overseer Susan Elliot must try to stifle an Ontario Lawyers’ revolt and restore the reputation of Canada’s most influential and mismanaged law society” (1995) 12 (5) The Globe and Mail Business Magazine 108.Google Scholar
12. Discipline of lawyers is handled through the courts in the United States.See, Patrick Glenn, H. “Professional Stimulus and Professional Ethics” (1990) 35 McGill L.J. 424.Google Scholar In Ontario, the self governing mechanism of enforcement through the discipline committee and then through Convocation of the Law Society is at least as rigorous, if not more rigorous, than court enforcement.See, Middlemass, Jim “Denizens of the discipline process: Lawyers who represent colleagues in trouble argue before one of the toughest benches around: Convocation” (1993) 2 (5) The National 30.Google Scholar
13. See, Christie, Ronald J. Barry Hoffmaster, C. & Stewart, Moira A. “Ethical Decision Making by Canadian Family Physicians” (1987) 137 Can. Med. Ass’n J. 891;Google Scholar Christie, Ronald Freer, Charles Barry Hoffmaster, C. & Stewart, Moira “Ethical Decision-making by British General Practitioners” (1989) 39 J. of the Royal Col. of Gen. Practitioners 448.Google ScholarPubMed Hoffmaster, C.B. Stewart, M.A. & Christie, R.J. “Ethical Decision-Making by Family Doctors in Canada, Britain and the United States” (1991) 33 Soc. Science and Med. 647.CrossRefGoogle ScholarPubMed Barry Hoffmaster, C. Stewart, Moira A. & Christie, J. “A Survey Method for Investigating Ethical Decision-Making in Family Practice” (1992) 24 Family Medicine 433.Google Scholar
14. Singleton etal. report that C. Argyris found that a questionnaire irritated a significantly higher proportion of top-level managers than did an interview with similar content. See, Singleton, Royce A. Jr., Straits, Bruce C. & Miller Straits, Margaret Approaches to Social Research 2d ed. (New York: Oxford University Press, 1993).Google Scholar Argyris, C. “Some Unintended Consequences of Rigorous Research” (1968) 70 Psychological Bulletin 185.CrossRefGoogle ScholarPubMedCited ibid, at 242.
15. DeMaio demonstrated the “social desirability” response bias problem in 1984; T.J. DeMaio, “Social Desirability and Survey Measurement: a Review” in Turner, C.F. & Martin, E. eds, Surveying Subjective Phenomena vol.2 at 257. (New York: Russell Sage Foundation).Google ScholarCited in Singleton etal., ibid, at 286.
16. See, Boyd, Harper W. Jr., Westfall, Ralph & Stasch, F. Stasch Marketing Research: Text and Cases 5th ed. (Homewood, IL: Richard D. Irwin, 1981).Google Scholar
17. The researchers were thus trying to avoid the biasing effect of the subjects’ expectations. See, Singleton etal., supra note 14 at 189ff.
18. As will be further described below, the data gathering was conducted in a structured design that will permit a combination of quantitative and qualitative analytic techniques—thus permitting the researchers maximum flexibility without sacrificing methodological rigor. See, Sandstrom, Alan R. & Sandstrom, Pamela E. “The Use and Misuse of Anthropological Methods in Library and Information Science Research” (1995) 65 (2) Library Quarterly 161.CrossRefGoogle Scholar
19. See, (1992) 14(2) Knowledge: Creation, Diffusion Utilization: this issue was devoted to papers about scientific misconduct and includes various approaches to research.
20. Ethical Conflicts in Information and Computer Science, Technology and Business (Wellesley, MA: QED information Sciences, 1990).
21. Supra note 13.
22. Dewdney, Patricia & Harris, Roma M. “Community Information Needs: The Case of Wife Assault” (1992) 14 Library and Information Science Research 5 Google Scholar(winners, for this paper, of the 1991 Jesse Shera Award for Research given by the American Library Association).
23. This was one explicit reason for the use of this approach by Dewdney and Harris, ibid., who presented subjects with a hypothetical scenario involving a battered neighbour’s request for help.
24. Indirect questioning is relatively infrequently used today because its validity and reliability are questionable; see, Singleton etal., supra note 14 at 271, citing L.H. Kidder … D.T. Campbell, “The Indirect Testing of Social Attitudes” in Summer, C.F. ed., Attitude Measurement 333 (Chicago: Rand McNally, 1970).Google Scholar
25. See, Harris, Roma M. “The Information Needs of Battered Women” (1988) 28 Reference Quarterly 62,Google Scholarwhere 40 residents of a shelter were asked how they made sense of their worlds and used resources in so doing. See, also, Dewdney, Patricia … Ross, Catherine Sheldrick “Flying a Light Aircraft: Reference Service Evaluation from a User’s Point of View” (1994) 34 (2) Reference Quarterly 217.Google Scholar (This article was winner of the 1993 Research Paper Competition of the Association for Library and Information Science Education and recently also received a 1996 Reference Service Press Award.)
26. Even so. a handful of lawyers cited this concern about confidentiality as a reason for not participating in the final project.
27. The comparative strengths and weaknesses of asking subjects to report on their own experiences, as opposed to asking them to report on their views of what others should do. was canvassed by Buzzelli, Donald E. “The Measurement of Misconduct” (1992) 14 (2) Knowledge: Creation, Diffusion and Utilization 205.CrossRefGoogle Scholar
28. See, “Demographic Questions” section of Appendix B.
29. A response rate of 90%, which encouraged the researchers to be optimistic about practitioners’ involvement in the full study. This optimism was borne out in the study, as noted below.
30. This may indicate a more distinct separation into speciality areas than was the case for the practitioners of family medicine surveyed earlier. See, Supra note 13.
31. In making this choice, the researchers are aware that they will be unable to make certain claims to automatic generalizability of their results. In particular, the range of problem areas and number of cases within each area represented by the interviews may not reflect accurately the proportions of those problems encountered by practitioners in Ontario. However, the researchers plan to compare their results with other external evidence in an attempt to assess the representativeness of the findings in this regard.
32. Kim Roebuck, a graduate of the Graduate School of Library & Information Science at the University of Western Ontario was instrumental in helping to unearth this, and other, relevant information for the project. Sources consulted included, Statistics Canada, Urban Areas (Ottawa: Statistics Canada, 1992); Statistics Canada, Population and Dwelling Counts (Ottawa: Statistics Canada, 1992); Canadian Markets 1992 66th ed. (Toronto: Financial Post Publications, 1992); Statistics Canada, Profile of Census Divisions and Subdivisions in Ontario, Part A (Ottawa: Supply and Services Canada, 1992).
33. Supra note 6 at 591. The ability to segregate responses from large firms should allow some comparison with other research findings such as those of Nelson, Robert L. “Ideology, Practice & Professional Autonomy: Social Values and Client Relationships in the Large Firm” (1985) 37 Stan. L.J. 503.CrossRefGoogle Scholar This was a case study of large firms in one city, viz., Chicago.
34. Partners, associates, and employees were all included. For the sampling frame, no distinction was made as to the form of association with the firm. However, this information was elicited during the interviews.
35. Only the large centres and the metropolitan centre had firms this size:
36. Only the metropolitan centre had firms this size.
37. See, for example, Wright, Peter “What is a Profession” (1951) 29 Can. B. Rev. 748.Google Scholar at 753.
38. One reason for the change involved an aspect of the researchers’ own obligations as members of the Law Society of Upper Canada, which occurred to the team in the process of refining the methodology after the experience of the pretest. The empirical researchers, who are both members of the Bar of Ontario, would probably themselves be under a duty to report any breaches of ethics which they heard during the interviews, pursuant to Rule 13.1. On the other hand, law students are not members of the Law Society of Upper Canada and therefore would not be subject to that duty to report. As arranged in the final study, the content of the interviews was not seen by the researchers until after the consent of the participants to use the interviews had been received and filed and all identifying information had been removed from the transcripts. Therefore the subjects could be assured of complete anonymity by the time the content of their conversation was reviewed by other members of the Bar. The researchers were also free to concentrate on the content of the transcripts entirely from a research point of view. The researchers are very much indebted to the fine work of Terra Strong, Melissa MacKewn, and Monica Song.
39. The researchers gratefully acknowledge the assistance received by the team from Patricia Dewdney, Associate Professor at the Graduate School of Library and Information Science, and the access she provided to methodological materials used in her research, see supra notes 22 and 25.
40. The manual had been updated since the completion of the pretest. Such sources as Aburatani, Jun “Psychological Analysis of Ordinary People and the Structure of Interviews” (1990) Journal of Advertising Research 47 Google Scholarwere used in the training of the interviewers and preparation of the supporting material for the research.
41. The information upon which the interview had been arranged (in terms of firm size) was verified during each interview, which occasionally resulted in reclassification.
42. Students involved in this process include Terra Strong, Larry Yelen, Calvin Ho, and Alan Tonner.
43. The percentage of transcripts edited by the subjects was 40%. Of these roughly 10% were changes to the material itself, such as further deletions over confidentiality concerns, with the remaining 90% being changes purely of a grammatical nature.
44. For help in analyzing the transcripts the research team decided to employ AskSam for Windows database software. This database program allows for search and retrieval of transcripts based on freeform te t of pre-defined fields. As inductive coding of the transcripts will be undertaken for the main study, the use of the search capabilities within pre-defined fields will be extremely useful.
45. Based on the number of interviews actually completed, as indicated in Diagram 2, and including two interviews which were unable to be transcribed due to technical difficulties. Percentages are liable to slight variation as transcript approvals are still arriving as this article goes to press.
46. Toronto and the large centre were transcribed last and are therefore the jurisdictions where late arriving transcript consents are expected to increase the percentages slightly.
47. At this point the project is being ably assisted by law student Lloyd R. Starratt.
48. Krippendorff, Klaus Content Analysis: An Introduction to its Methodology (Newbury Park, CA: Sage, 1980).Google Scholarat 72.
49. This is discussed in Babbie, Earl The Practice of Social Research 6th ed. (Belmont, CA: Wadsworth Publishing Company, 1992).Google Scholarat 318–19.
50. The transcripts also provide a rich source of data on contrasts between “what people do” and “what people say they do” in the evidence provided about how these practitioners viewed their particular problems and solved them; what they said about their views in general; and how the researchers independently viewed the same problems. See, supra note 18 at 191.
51. The number of responses are given in each cell with the response rate percentages shown in brackets.