The First Thing We Do, Let S Kill All the Lawyers Henry VII, Part II, Act 4
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“The first thing we do, let’s kill all the lawyers” Henry VII, Part II, Act 4
RELATIONSHIP FLOW CHART
CLIENT
CPC 3 “client” any person or organization to whom the lawyer renders or undertakes to render professional services; also means a person who consults a lawyer and has reasonable grounds to believe that a lawyer-client relationship exists MCPC 1.1-1 Definitions- “client” means a person who a. consults a lawyer and lawyer accepts to render legal services b. having consulted a lawyer, client concludes that the lawyer has agreed to serve and includes a client of the law firm for whom the lawyer works. Commentary: 1) Relationship can arise without formality. 2) Lawyer is client of the corporation, not of the agent. 3) Client does not include near-client unless reasonable expectation.
CLIENT SELECTION
CPC 24 A lawyer must respect the right of a client or prospective client to choose his Proulx & Layton, Ethics and Canadian Criminal Law: lawyer. ● Counsel must reject an available retainer where the representation would CPC 25 A lawyer must at all times acknowledge a client's right to consult another lawyer, undermine a proper client-lawyer relationship or require the lawyer to engage in a member of another professional order or any other competent person. He must unethical conduct. These are: cooperate with the person the client has consulted. ○ Conflict of interest CPC 27 A lawyer must act pursuant to a mandate given to him by a client or authority.// Or mandate given to him by another lawyer on behalf of a client, in which case the other ○ Potential to be a witness lawyer's client is also considered to be his client. ○ Lack of competence CPC 32 A lawyer may agree to act for a client no matter what his opinion may be on the ○ Continuing retainer with another lawyer client's guilt or liability. ○ Illegal purpose CPC 33 MCPC 4.1-1 [4] Lawyer may refuse to act for a client, subject to his obligations of ● Not obliged to accept all clients, but no discrimination on same grounds professional conduct. generally prohibited by human rights legislation. Non-discriminatory choice in CPC 41 Lawyer must try to dissuade a client from exercising a recourse or filing abusive client selection is justified by the competence standard. For example, lawyers proceedings // If the client persists, the lawyer must refuse to act for him in such recourse can decide to represent only wives in divorce, and this would not be or proceedings. discriminatory but rather an ideological position. A lawyer should refuse where CPC 28 A lawyer must determine together with the client the terms, conditions and scope the quality of representation would suffer, tantamount to the issue of of the mandate given.// Lawyer must obtain the client's consent to the mandate, paying incompetence. CHARTER particular attention and care when the client is vulnerable. CPC 31 MCPC 3.2-1A Limited scope mandates ● The unpopular or repugnant client problem. (1) Necessary to bolster lawyer’s CPC 49 MCPC 3.7-7 A lawyer must cease to act for a client, except where a tribunal role morality, (2) The lawyer is not the judge, and may be in error, (3) Access to orders otherwise: (1) if the client revokes his mandate; (2) if, notwithstanding the lawyer's justice for all clients, systemic reasons, “last lawyer in town”. advice, the client or a representative of the client persists in contravening a legal provision ● No cab-rank rule in Canada. or in inciting the lawyer to do so; (3) if the lawyer determines that he does not have the ● Authors suggest lawyers disclose to potential client any personal moral competence required to continue to perform the mandate; o r (4) if the client persists in misgivings the lawyer may have about representation. exercising a recourse or filing proceedings that the lawyer considers abusive. ● Position is ambiguous (difference between MacKenzie and Hutchinson CPC 76 MCPC 3.4-1 Avocat ne doit pas personnellement agir dans un litige s’il sait ou positions) in Canada, generally that lawyers should be slow to exercise refusal devrait savoir qu’il y sera convoqué comme témoin. of mandate when client would have difficulty in obtaining representation. Lawyer must weigh moral discomfort with the importance of the representation for the client. MCPC 6.3-5 No discrimination against any person ● Private opinion about guilt of the client is not a basis for declining retainer. ● IF RETAINER IS REFUSED: Help find suitable lawyer, Clarity about not accepting the work, timeliness of work (statute barred example) should be mentioned, returning documentation promptly, duty of confidentiality is owed. OFFER OF SERVICE, MARKETING AND FEES
OFFER OF SERVICE
MCPC 4.1-1 l’avocat peut offrir ses services professionnels à des clients éventuels par n’importe quel moyen. MCPC 4.1-2 Restrictions quant aux moyens. In offering legal services, means must not be (a) false or misleading, (b) amount to coercion, duress, harassment, (c) take advantage of vulnerable/traumatized, (d) otherwise justice in disrepute.
MARKETING CPC 143-144 Name of firm CPC 145 no statement of gratitude to be used in marketing CPC 146 conditions for advertising fees CPC 147 rules for advertising lump-sum fees CPC 148 must abide by advertised fees for 90 days, or lower fees CPC 151-153 use of the symbol of the Barreau MCPC 4.2-1 Marketing must be (a) true, (b) not misleading, (c) in interest of public and professionalism MCPC 4.2-2 Advertising of fees rules MCPC 4.3 Marketing specialty
FEES CPC 99 Before agreement, ensure client has all useful information regarding his financial terms and obtain his consent.// Keep client informed of changing costs. CPC 100 Explanations to understand fees. CPC 101 A lawyer must charge and accept fair and reasonable fees and disbursements// Ditto retainers. CPC 102 The fees are fair and reasonable if they are warranted by the circumstances and proportionate to the professional services rendered. Factors to determine fees: (1) experience; (2) the time and effort required and devoted to the matter; (3) the difficulty of the matter; (4) the importance of the matter to the client; (5) the responsibility assumed; (6) the performance of unusual professional services or professional services requiring special skills or exceptional speed; (7) the result obtained; (8) the fees prescribed by statute or regulation; and(9) the disbursements, fees, commissions, rebates, extrajudicial costs or other benefits that are or will be paid by a third party with respect to the mandate the client gave him. CPC 103 Interests agreed in writing. MCPC 3.6-1 Lawyer must not charge or accept any amount for a fee unless it is fair and reasonable; depends on: (a) time and effort, (b) difficulty...etc. CCP 4(2) proportionality requirement of civil procedure applies to lawyer’s fees. ENDING THE RELATIONSHIP
CPC 48 Unless it is at an inopportune time, a lawyer may, for serious reasons, cease acting for a client. Serious reasons: (1) when there is a loss of confidence between the lawyer and the client; (2) when the client has deceived the lawyer, failed to cooperate with the lawyer or acted without taking the lawyer's advice into account; (3) when the client, after reasonable notice, refuses to pay disbursements and fees to the lawyer or a provision therefor; or (4) when the lawyer is in a situation of conflict of interest or in a context in which his professional independence could be called into question. CPC 49 A lawyer must cease to act for a client, except where a tribunal orders otherwise: (1) if the client revokes his mandate; (2) if, notwithstanding the lawyer's advice, the client or a representative of the client persists in contravening a legal provision or in inciting the lawyer to do so; (3) if the lawyer determines that he does not have the competence required to continue to perform the mandate; o r (4)if the client persists in exercising a recourse or filing proceedings that the lawyer considers abusive. CPC 51 + 52 How to cease relationship and what to do pre and post
MCPC 3.7-1 Lawyer must not withdraw except for good cause and with reasonable notice MCPC 3.7-2 Optional withdrawal- serious loss of confidence MCPC 3.7-3 Non-payment of fees
DUTIES
DEVOIRS ENVERS LE CLIENT
DUTY OF COMPETENCE
CPC 10 Lawyer must not claim competence if he’s Guindon v. The Queen SCC Alice Woolley: incompetent; can’t claim someone else is competent if FACTS: G is a family law lawyer with no experience in tax law. She is ● Competence is an ethical issue. Lawyers they’re incompetent. approached by promoters of a leveraged donation program. Participants must be conscientious and diligent. CPC 20 Lawyer owes his client duties of integrity, acquire timeshare units of a resort and exchange before they are built and ● Negligence-- standard of reasonably competence, loyalty, confidentiality, independence, donate them to a charity at market value (with attendant tax competent solicitor (not necessarily impartiality, diligence and prudence consequences). G is asked to write an opinion letter on the beneficial tax related to ethical standard) CPC 21 A lawyer must engage in his professional consequences of the project and does it for a small fee, asking the activities with competence. To this end, he must promoters to have the opinion read by tax lawyers and accountants for develop his knowledge and skills and keep them up to verification. She writes the letter, saying she had read over supporting Floyd & Gallagher, Legal Ethics, Narrative date. documentation which she never did. The project is a sham: participants and Professional Identity: The Story of David CPC 29 MCPC 3.1-2[5]-[7] Before accepting or buy units and don’t donate them, while still getting their tax slips, signed Spaulding: pursuing a mandate, a lawyer must consider his by G. ● “Failures in communication, competence competence + get help. L’avocat peut prendre mandat NOTES: The case is constitutional once it reaches the SCC, but and diligence are the basis for the même si ses compétences sont limitées, avec le conversation revolved around competence. G was not aware of the tax overwhelming majority of grievances filed consentement, s’il prend les moyens raisonnables pour sham and was naive. She was convinced by her cousin (promoters) to against lawyers...and most complained obtenir de l’assistance. support the deal. about in legal malpractice cases.”
MCPC 3.1-1 Definition of competence MCPC 3.1-2 Standard of competent lawyer MCPC 3.1-2 [3] Factors to judge competence DUTY OF HONESTY AND CANDOUR
CPC 37 Lawyer must be honest and candid when Spaulding v. Zimmerman US 1962 (Leading debate) Floyd & Gallagher, Legal Ethics, Narrative advising clients. FACTS: S was a victim in a serious car accident. Insurance companies and Professional Identity: The Story of David CPC 40 Submit all settlement offers for both sides conducted examinations of him to determine the extent of Spaulding: CPC 45 Lawyer must notify the client of any fact his injuries, but only Z’s doctor discovered that his life was at risk from a ● Virtue ethics philosophy learned by him in the performance of his professional serious brain aneurysm which may or may not have been caused by the ● Carnegie Report (US, 2007): states that services which, in the lawyer's opinion, may be a accident. Counsel for Z decided not to reveal this information while law schools should develop “normative breach of the law by the client.// Organisation negotiating settlement. S did not become aware of this condition until two apprenticeship” that imparts rules of CPC 46 Lawyer must not elude or attempt to elude his years later, and requested that the trial court vacate the prior settlement at conduct and ethics. civil liability with respect to the performance of a that time. mandate. HELD: The court vacated the settlement because S was a minor at the ● This can be done through narrative STORIES and seeing people instead of CPC 47 Lawyer must notify his client of any fact, time of the accident and the court has discretionary powers. Usually logical categories. “To abstract from circumstance or omission that could result in prejudice courts can vacate settlements if there has been a mutual mistake (both people to principles or rules in the name to the client's rights or recourses, unless the lawyer can parties) or a duty to disclose, which there wasnt in this case. of legal reasoning, to depersonalize remedy such fact, circumstance or omission easily and RATIO: For our purposes: Defendant counsel (Z) had no ethical duty to clients and their disputes, can cause in a timely manner. reveal the existence of the aneurysm. It was actually in his client’s interest great harm to both the people and the that the aneurysm not be revealed. law itself.” NOTES: ● Narrative provides a moral compass. MCPC 3.2-2 Honest, candid and inform client of all ● Example of role morality pushed to the extreme. Defendant counsel ● There are consequences for the lawyer information that may affect client interest lets S (minor) run around with an aneurysm because he has no codal to immoral (although of unethical) MCPC 3.2-1 Quality of service: Report on progress of duty to warn him. conduct: the lawyer in the case was file be reasonably available, convey any settlement ● Example also of plaintiff counsel’s lack of competence- had they asked shunned because his conduct was offer, encourage settlement, return calls, be civil for the medical reports, defendant counsel would have had to deliver, considered distasteful. thus disclosing the aneurysm. ● Lawyer fo Z should have shared ● Example of duty of confidentiality and how the lawyer’s duty runs information with his client instead of counter to what most people consider correct. assuming position. “Lawyers owe it to ● What about personal responsibility? Who pays if the lawyer discloses? clients to help them make the best Shouldn’t the Z’s lawyer be able to disclose the aneurysm and pay decisions they can.” damages--if he feels morally implicated (Holmes)? DUTY OF CONFIDENTIALITY / SECRET PROFESSIONNEL
CPC 14 Lawyer must not help or, through Smith v. Jones SCC Duty of confidentiality is an ETHICAL rule- encouragement or advice, facilitate conduct by a client FACTS: The accused was charged with the assault of a prostitute. He wider than SCP, covers information obtained that the lawyer knows or should know is unlawful or confessed his plans of kidnapping, sexually assaulting and murdering a from third parties. fraudulent. prostitute (and, in the future, of possibly doing the same to a number of SCP is a substantive rule, covers CPC 15 Lawyer must not conceal or knowingly omit to prostitutes) to his psychiatrist. The psychiatrist sought to break the doctor- communications between lawyer and client. disclose what the law obliges him to disclose or help patient confidentiality based on the public safety exception. ● Privilege belongs to the client and anyone conceal or omit to disclose what the law obliges RATIO: only he can waive it. that person to disclose. 1) Solicitor-client privilege is subject to a public safety exception ● Both duty and privilege live CPC 20 Lawyer owes his client duties of integrity, when there is a "clear, serious and imminent" danger to an FOREVER. competence, loyalty, confidentiality, independence, identifiable group of persons, including risk of bodily harm or ● If an information is NOT protected by impartiality, diligence and prudence death. SCP but is protected by CPC 60 Lawyer must ensure the confidentiality of all 2) Un préjudice psychologique grave peut constituer des blessures information concerning the affairs and activities of a confidentiality, the lawyer must not graves s’il perturbe considérablement la santé ou le bien-être de client of which the lawyer becomes aware in the course disclose it unless there is a legal la personne. of the professional relationship. requirement or falls under exception. NOTES: CPC 61 Everyone lawyer works with must protect confidential information // Organisation must have ● the disclosure should be limited so that it includes only the Jamal et Lussier, Le secret professionnel de means to protect confidential information information necessary to protect public safety. l’avocat: ce que tout avocat doit savoir selon CPC 63 Lawyer must not use confidential information la SCC: with a view to obtaining a benefit for himself or for R v. McClure SCC ● Critères pour établir l’existence du another person. FACTS: Appeal by complainant in sex case from trial order for access by secret professionnel: 1) Communication CPC 64 Lawyer must not accept a mandate if he has accused to complainant's civil lawyer's file allowed and order set aside. entre un avocat et son client: distinction reason to believe that doing so entails or is likely to HELD: Grounds not made out for complainant's solicitor-client privilege to entre faits et communications. 2) Qui entail the communication or use of confidential yield to accused's right to make full answer and defence. comporte une consultation ou un avis information concerning another client. RATIO: In some limited circumstances, the solicitor-client privilege may juridiques: cadre habituel et ordinaire de CPC 65 Lawyer may communicate confidential yield to allow an accused to make full answer and defence as per s.7 of la relation professionnelle. 3) Que les information in the following situations: (1) with the the Charter. There must be no other way to raise reasonable doubt. parties considèrent de nature express or implied authorization of the client; (2) if an NOTES: confidentielle: Présomption réfragable express legal provision orders or authorizes him to do ● Test: innocence at stake ⇒ The privilege should be infringed only de confidentialité prima facie. so; (3) in order to collect his unpaid fees before a where core issues going to the guilt of the accused are involved and ● Secret professionnel = PJF s7 + tribunal; (4) in order to defend himself in the event of there is a genuine risk of a wrongful conviction. protection de vie privée s8. proceedings, complaints or allegations calling his ● Test applied in 2-stages: ● Exemples d’exceptions: professional competence or conduct into question; or (5) to identify and resolve conflicts of interest arising 1) the accused seeking production of a solicitor-client ● sécurité publique from a change of firm by a lawyer or from changes to communication must provide some evidentiary basis upon which ● danger imminent de mort ou the composition or ownership of a firm, but only if the to conclude that there exists a communication that could raise a blessures graves. information necessary for this purpose, namely, the reasonable doubt as to his guilt. At this stage, the judge has to ● sécurité nationale decide whether she will review the evidence. names of current and former clients and the summary ● lorsque l’innocence d’un accusé est 2) If the trial judge is satisfied that such an evidentiary basis exists, nature of the mandates entrusted by such clients, will en jeu et divulgation est nécessaire she must examine the solicitor-client file to determine whether, in not jeopardize professional secrecy or if doing so will pour une défense pleine et entière. not result in prejudice to such clients; (6) in order to fact, there is a communication that is likely to raise a reasonable ● pour déceider de la validité d’un k de prevent an act of violence, including a suicide, where doubt as to the guilt of the accused. fiducie à la suite du décès du the lawyer has reasonable cause to believe that there is ● If the second stage of the test is met, then the trial judge should constituant. an imminent danger of death or serious bodily injury to order the production but only of that portion of the solicitor-client file a person or an identifiable group of persons. that is necessary to raise the defence claimed. ● communications de nature CPC 66 People with whom lawyer can communicate in criminelles. case of 65(6). Canada (PG) c. Chambre des notaires QCCA ● Le privilège appartient au client. FACTS: De nombreux notaires reçoivent des demandes péremptoires formulées sous l'autorité de l'article 231.2 de la Loi de l'impôt sur le Hutchison: MCPC 3.3-1 Lawyer must be confidential unless: a) revenu par des fonctionnaires de l'Agence du revenu du Canada (ARC) ● Devoir de confidentialité découle de authorized, b) required by law or court, c) required by requérant des informations ou des documents quant à leurs clients. deux sources principales: 1) le droit de law society, d) otherwise permitted by this rule. L'omission de faire parvenir ceux-ci à l'ARC peut entraîner des la preuve (privilège avocat-client et MCPC 3.3-2 Confidential information cannot be used accusations pénales par voie de procédure sommaire. Certains notaires privilège relatif au litige, “litigation without consent. Relates se réclament du droit au secret professionnel. privilege” a subset of SCP); 2) devoir MCPC 3.3-3 Future harm exception HELD: Les demandes péremptoires ne sont pas constitutionnelles. général de confidentialité (professional MCPC 3.3-5 Disclose conf information to collect fees RATIO: Est inadéquat le régime de saisie qui «ne traite pas directement rules). MCPC 3.3-6 Disclose to another lawyer to secure du droit que le détenteur du privilège, le client, devrait avoir pour veiller à ● Non seulement de voir de non advice legal or ethical la protection adéquate de ses droits» et qui peut faire en sorte que «le divulgation des infos confidentielles, MCPC 3.3-3 Disclose information to resolve conflicts of client ne sache même pas que son privilège est menacé». mais également de protection face aux interest in case of changes in firm or organization, but NOTES: tiers parties. only when doesnt compromise SCP ● Pour que ses droits soient suffisamment protégés aux termes de ● Litigation privilege protects information l'art. 8 de la Charte (“unreasonable search and seizure”) , il faut in the context of litigation impérativement que le détenteur du secret professionnel soit notifié personnellement de la saisie afin d'avoir lui-même l'occasion de QC CHARTER 9 Every person has a right to non- Dodek, “overriding the privilege: exceptions”: veiller à la sauvegarde de ses droits. Lavallée v. Canada. disclosure of confidential information. DISCRETIONARY: ● Public-safety exception: clear, serious R v. Cunningham SCC (psychological or physical) and FACTS: Cunningham is a criminal defence lawyer who represented an imminent. Smith v Jones accused person charged with sexual assault offences. Legal Aid requested updated financial information from the accused, who failed to ● Innocence at stake: McClure. respond. Cunningham brought an application to be removed as counsel of ● Wrongful conviction. record due to the absence of funding for her services ● National security. RATIO: Although the court has the authority to require counsel to ● Statutory exceptions: very rare and continue to represent the accused, such discretion should be exercised sparingly, and only when necessary to prevent serious harm to the contested in Canada. administration of justice. ● Money laundering
Foster Wheeler- leading QC case embracing SCP doctrine from the SCC about secret professionnel. DUTY TO AVOID CONFLICTS OF INTEREST
MCPC 1.1-1 Definitions: MacDonald Estate v. Martin SCC 1990 (risk of disclosure) MCPC 3.4-1 [12] Le standard de conflits “conflict of interest” means the existence of a FACTS: Appeal from decision allowing appeal from decision declaring d’intérêts est déontologique alors que le substantial risk that a lawyer’s loyalty to or that a law firm was ineligible to continue to act as solicitor of record for standard fiduciaire est juridique. representation of a client would be materially and respondent. Student articled to solicitor representing defendant appellant adversely affected by lawyer’s own interest or duties to in 1983 and later became associate of law firm representing plaintiff Bright Line Rule: prohibits a lawyer or law firm another client, a former client or a third person. respondent in 1987. Appellant sought a declaration that the respondent's from representing one client whose legal MCPC 3.4-1 Lawyer is not permitted to act or continue solicitors should be removed as solicitors of record for the respondent on interests are directly adverse to the to act for a client where there is a conflict of interest, the grounds of conflict of interest. immediate legal interests of another client except where permitted by Code. HELD: the solicitor in question was directly involved in the matter while even if the matters are unrelated unless the MCPC 3.4-1 [12] Lors de conflits d’intérêts, l’ordre she was an articling student. clients consent. Neil + McKercher professionnel applique les normes éthiques. Les T RATIO: the appearance of conflict alone was sufficient to warrant removal judiciaires, quant à eux, appliquent les principes en of the law firm. Divided loyalties, or perception of divided matière fiduciaire pour veiller à l’administration NOTES: loyalties, on the part of the lawyer, adéquate de la justice. ● three competing values: 1) that the high standards of the legal compromise the representation of a client. MCPC 3.4-2 Consent trumps. profession and the integrity of the justice system be maintained; 2) MacDonald that the litigant should not be deprived of the choice of counsel CPC 1.1-1 //+ DEFINITION OF CONFLICT The risk without good cause; and 3) that reasonable mobility among the legal Consent may be explicit or implicit. must be more than a mere possibility- genuine, serious profession was desirable. risk. ● If it was established that the solicitor had a previous relationship with Commentary: “substantial risk” must be significant and the client which was sufficiently related to the retainer from which the plausible even if it is not certain or even probable that client sought to have the solicitor removed, the solicitor ought to be Cone of silence: oath of silence taken by material adverse effect will occur. removed unless the solicitor could show that no information was lawyer not to disclose information putting the CPC 20 Lawyer owes his client duties of integrity, imparted that could be relevant. firm in conflict of interest competence, loyalty, confidentiality, independence, impartiality, diligence and prudence R v. Neil SCC 2002 (bright line rule on conflict of interest) Current clients with opposing interest in CPC 71 Lawyer must avoid any situation of conflict of FACTS: L'accusé, un parajuriste, a été inculpé de 92 chefs d'accusation, related matter- NO interest. compris dans cinq actes d'accusation distincts, d'avoir contrevenu à la Current client against former client in related CPC 72 There is a conflict of interest when there is a Legal Profession Act de l'Alberta. L’accusé était représenté par un cabinet matter- NO substantial risk that the lawyer's own interests or his qui représentait aussi Canada Trust pour une question de fraude dans Adversarial position with respect to legal work duties to another client, a former client, or another une affaire de divorce qui contenait des documents contrefaits par which lawyer performed for the former client- person would adversely interfere with his duties to the l’accusé. NO client and, in particular: (1) when he acts for clients with RATIO: Malgré qu'en sa qualité de fiduciaire, le cabinet ne pouvait servir Current clients with adverse (legal) interests conflicting interests; or (2) when he acts for clients deux maîtres à la fois, puisque la conduite du cabinet n'a pas porté in unrelated matter- NO, unless clients whose interests are such that he might tend to favour atteinte à l'équité du procès concernant le divorce et que la confidentialité consent or professional litigant R v. Neil certain among them or that his judgment and loyalty des renseignements n'était pas en cause, l'accusé n'avait pas droit à un Acting against former client in “fresh” may be unfavourably affected. // Applies to all firm’s arrêt des procédures (et ne peut donc demander réparation, mais peut unrelated matter- OK clients porter plainte à l’ordre professionnel). Clients with competing business interests- CPC 73 Lawyer who notices or anticipates that the NOTES: OK interests of a representative of the client and those of the client may differ must inform the representative of ● La règle générale est qu'un avocat ne peut représenter un client dont his duty of loyalty towards the client. les intérêts sont directement opposés aux intérêts immédiats d'un CPC 74 To decide any question concerning a conflict of autre client actuel et ce, même si les deux mandats n'ont aucun interest, consideration must be given to the higher rapport entre eux. interests of justice, the explicit or implicit consent of the ● 4 dimensions of duty of loyalty: 1) conflict of interest; 2) commitment parties, the extent of prejudice for each of the parties, (resolute advocacy); 3) candour on matters relevant to the retainer; 4) the time elapsed since the situation arose that could confidentiality. give rise to the conflict, as well as the good faith of the parties. CPC 75 Where a lawyer who engages in his Canadian National Railway v McKercher LLP SCC 2013 MCPC 3.4- professional activities within a firm is in a conflict of 1[8] interest, every other lawyer in the firm must take FACTS: Appeal from SKCA judgment setting aside a decision reasonable measures to ensure that confidential disqualifying the firm McK from acting against CN. CN was a former client information in the file involving the conflict of interest is of the firm. The D accepted a retainer to represent a class action against not disclosed to him. Moreover, the lawyer who is in a CN. CN applied for an order removing McK as solicitor of class action on conflict of interest and every other lawyer in the firm the grounds that it has breached its duty of loyalty. must see to it that such measures apply to the other HELD: Disqualification of the firm in the class action. persons with whom they collaborate when engaging in RATIO: A breach of the bright line rule normally attracts the remedy of their professional activities. // Effectiveness of disqualification MCPC 3.4-1 [1]. If the bright line rule does not apply, then measures judged by: (1) the size of the firm; (2) the you can consider whether there is a substantial risk that the lawyer’s precautions taken to prevent access to the confidential representation of the client would be materially and substantially affected. information by the lawyer who is in a conflict of interest; MCPC 3.4-1 [2]. (3) the instructions given as to the protection of NOTES: confidential information involved in the conflict of ● Lawyers owe a duty of loyalty to clients. This duty has three salient interest; and (4) the isolation of the lawyer in a conflict dimensions: (1) a duty to avoid conflicting interests; (2) a duty of of interest with respect to every person in the firm who commitment to the client's cause; and (3) a duty of candour. has access to the file. ● With respect to the duty to avoid a conflict of interest, the general "bright line" rule was that a lawyer, and by extension a law firm, CPC 83- 86 Joint mandates (two clients) could not concurrently represent clients adverse in interest without CPC 87-88 Acting against former clients obtaining their consent, regardless of whether the client matters CPC 89 Change of firm were related or unrelated. ● McKercher's termination of its existing retainers with CN breached its duty of commitment to its client's cause, and its failure to advise CN of its intention to accept the class action retainer breached its duty of candour to its client. FIDUCIARY DUTY (LEGAL/EQUITY DUTY)
Strother v. 3464920 Canada Inc SCC 2007 FACTS: appeal from a judgment allowing an appeal in part from a trial judgment dismissing an action by a client against a former lawyer for breach of fiduciary duty. S didn’t gave an honest answer to client on ways to avoid new tax amendments. RATIO: The relationship between a lawyer and client is governed by their retainer agreement, but overlaid by fiduciary obligations, which outlast the mandate. The duty of loyalty, and particularly the fiduciary relationship, prevents lawyers from benefitting from using lawyer-client relationship to obtain a personal benefit.
Galambos v Perez SCC 2009 FACTS: G has a law firm and P is a bookkeeper and manager of the firm. The firm is in financial trouble and P advances sums amounting to $200,00 to the firm without G’s knowledge or consent. G’s firm helped P carry out a few limited scope mandates for her personal issues. G’s firm goes bankrupt, and P is an unsecured debtor. Trial court says P is simply an unsecured debtor; CA says G and P are in fiduciary relationship and duties are owed. HELD: Appeal dismissed- Trial court is right! There was no fiduciary relationship between G and P because (1) P was not in a position of power and influence, not vulnerable and did not relinquish her decision-making power, (2) G did not undertake to be fiduciary, and not all power-dependency relationships are fiduciary, (3) no adhoc fiduciary duty. Moreover, no conflict of interest with the firm’s duties to her in the limited scope mandates and the firm’s interest in receiving the advances. RATIO: No fiduciary duty; no conflict of interest.
Szarfer v Chodos 1986 FACTS: The plaintiff claimed that he suffered traumatic neurosis as a result of discovering that his lawyer was having an affair with his wife (legal secretary). He claimed against the lawyer for breach of fiduciary duty and negligence. HELD: Action allowed. RATIO: The fiduciary relationship between a lawyer and his client forbids a lawyer from using any confidential information obtained by him for the benefit of himself or a third person to the disadvantage of his client. NOTES: ● The plaintiff had retained the lawyer to prosecute an action for wrongful dismissal. As a result of this action the lawyer learned of the plaintiff's marital and financial difficulties (privileged information by SC relationship). ● The Court found that the injury to the plaintiff was not caused by the adultery (damages for adultery are prohibited under Family Law Reform Act). It was caused by the lawyer's use of confidential information for his own purposes.
LSUC v George Hunter 2007 FACTS: H had and affair with XY, while retained by her in a family law matter after XY ex-husband challenges the custody regime. XY and the member agree that the relationship was "consensual" in the sense that XY voluntarily participated in the sexual/romantic relationship. XY maintains that H initiated the sexual/romantic relationship using confidential information to take advantage of her. HELD: H breached his conduct obligation. RATIO: H had a conflict of interest because his romantic interest in XY conflicted with his representation and advices to her. NOTES: ● The member had a duty to provide objective, disinterested professional advice to XY. The sexual/romantic relationship had the significant potential of jeopardizing the member's ability to provide such advice. ● Rules of conduct do not create absolute prohibition against such conduct. But it raises serious doubt
Stewart v. Canadian Broadcasting Corp. RATIO: Counsel has the discretion to publicize information in the public domain respecting the case of a former client; however this does not relieve counsel of their fiduciary duty of loyalty. Dormant duties can wake up!
3 - DEVOIRS ENVERS L’ADMINISTRATION DE LA JUSTICE
DUTY TO SERVE THE ADMINISTRATION OF JUSTICE
MCPC 5.1-1 représentation en justice. Doré v Barreau du Québec SCC 2012 Proulx and Layton MCPC 5.1-1[8] juriste doit éviter de soulever des FACTS: D defends his client in Court and is severely criticized by the Conflict of values in case of perjury objections frivoles et vexatoires. judge. He writes the judge a letter with a bunch of personal attacks. ● Duty of loyalty to the client MCPC 5.1-1[10] client admissions of guilt, with factual JUDICIAL HISTORY: ● Right against self-incrimination (droit and mental elements → lawyer can take objection to (1) Disciplinary Council = administrative tribunal au silence) jurisdiction of the court, form of indictment or (a) Council says letter was offensive and amounted to ● Justice system’s function of truth admissibility of evidence, but cannot suggest another misconduct. It rejects D’s claim of freedom of speech seeking guilty party or call evidence that the lawyer believes to and finds that the limit to the right is reasonable. ● Right to testify in one’s own defense be false and (2) Appeal to Tribunal des professions = D argues that sanction Monroe Freedman’s “trilemma” MCPC 5.1.2 (a) malice, (b) assisting in dishonesty, c) violates freedom of expression. TDP finds that the sanction is a ● Duty to acquire full knowledge of relationship with judifical officer, (d) influencing the minimal restriction of FOE. case v. maintaining client confidence tribunal, (e) (3) Judicial Review to Superior Court = upheld TDP v. candid to the court. MCPC 5.1-2A preuve matérielle incriminante (4) Appeal to Court of Appeal = Full Oakes analysis, upheld the ● If client gives false testimony, one of MCPC 5.1-2A [3] mesures à prendre en cas de these duties is breached: if counsel possession d’une preuve matérielle incriminante. reprimand. HELD: Misconduct found. does not seek full knowledge RATIO: (1) Claims of FOE infringement, and maybe other Charter rights (competence), if he tells Devoirs généraux claims, will not be subjected to Oakes in administrative tribunals. Instead, (confidentiality) and if he goes on CPC 111 devoir de servir la justice the proportionality exercise will concern balancing the Charter values with (misleading the court, candour) CPC 112 devoir de fermeté et dignité dans l’action pour the statutory objectives, asking how the Charter value will best be ● Freedman prioritizes confidentiality le client et courtoisie devant les tribunaux protected in light of those objectives. (2) Review of administrative and is ok with using the perjury- his CPC 113 devoir de coopération avec intervenants du decisions will balance different considerations. The question will be opinion is #shocking to most. système de justice. whether the decision-maker has unreasonably limited a Charter right. The Proulx recommends: Devoirs envers le tribunal decision should not improperly impair the Charter guarantee. BEFORE CPC 114 devoir de présence au T NOTES: 1. Acquire knowledge that the client intends CPC 115 devoir de ne pas encourager à dire des ● Assumed that administrative discretion is exercised in light of to perjure- (1) knowing the facts are false, (2) choses que l’avocat ne pourrait pas dire. intention to mislead CPC 116 devoir de ne pas induire ou tenter d’induire le constitutional guarantees ● Administrative decision-maker has the best position to weigh 2. Admonish client to truth : it’s a crime, many T en erreur. consequences, i’ll leave you! or other threats charter values in the context of specific facts CPC 117 devoir d’honnêteté quant à la preuve. (within bounds of Nix v Whiteside example) CPC 118 devoir de ne pas aider une personne à se ● Lawyers have a duty to speak their minds freely, but with 3. Vérifier si le parjure est évité soustraire à une ordonnance du tribunal. dignified restraint. 4. Remedial measures (if risk of perjure): Devoirs envers une partie ou son avocat CPC 119 devoir de ne pas induire en erreur. a) Se retirer, mais cela a des désavantages: Law Society of Upper Canada v Joseph Groia ONSC 2015 (Pb transférer à un autre avocat, costs to CPC 120 devoir de réserve face aux communications FACTS: G is accused of incivility after the conclusion of a case in front of avec une personne représentée par un avocat. client, alerte couronne d’un possible the OSC (Ontario Securities Commission). Throughout the case, G made parjure, Fuite d’informations R v Jenkins CPC 121 devoir d’information à la partie adverse des repeated allegations of prosecutorial misconduct though he had b) refuser de l’appeler comme témoin communications hors du tribunal avec le J. insufficient evidence to stay the proceedings on this basis. His allegations (critiques: this is using confidential info, Devoirs en regard des témoins were alleged to amount to disruption of the trial. He also made a series of right to testify) CPC 122 devoir de ne pas laisser un témoin ou partie criticisms throughout the proceedings, notably regarding the Court’s mentir sur son identité competence and against his opposing counsel. c) adopter l’approche du open-narrative: CPC 123 restrictions quant au paiement de frais pour HELD: Misconduct found. Càd éviter les témoignages parjures. les témoins RATIO: Incivility can be claimed for conduct other than personal attacks, C’est une option intermédiaire, mais Devoirs en regard des jurés including repetitive disruptions of trial. l’approche est rejetée ABA model Code CPC 124 crim ⇒ pas de communication NOTES: art 3.3. Knowling facilitating perjury. CPC 125 devoir de divulguer des conflits d’intérêts de ● Line between vigorous (“zealous”) advocacy and uncivil d) Laisser le client témoigner sans parjure: jurés behaviour. (be cautious). difficult- how will you know what they will CPC 126 devoir de divulguer l’inconduite de jurés say? CPC 127 pas de communication sauf dans les cas ● Law Society of Upper Canada v Clark: “Raise fearlessly every issue, advance every argument, and ask every question, e) Divulguer le parjure – inutile selon prévus par la loi. Jenkins CPC 128 aucune discussion avec les jurés après le however distasteful…”. AFTER procès au sujet des délibérations. ○ Groia cases tempers this definition of resolute advocacy. a) Make sure it’s true! CIVILITY ● Morden, ACJ ON: “Civility is not just nice, its a duty that keeps b) Admonish client to correct perjury. CPC 4 L’avocat agit avec honneur, dignité, intégrité, the adversary system together.” Authors believe lawyers should cut the respect, modération et courtoisie. ● Two pronged est for incivility in Groia: examination short to prevent completed CPC 14 ne pas aider, ou par encouragement ou ○ (1) (a) Conduct that is rude, unnecessarily abrasive, perjury. conseil, faciliter une conduite qu’il sait ou devrait savoir sarcastic, demeaning, abusive or of any like quality (b) c) Withdraw illégale ou frauduleuse de la part du client. that attacks the personal integrity of opponents, parties, d) Disclose witnesses or of the court, where there is absence of e) Pretend nothing happened (not a good MCPC 2.1 Lawyer must be courteous and civil with all good faith basis for the attack or the individual counsel thing). and good faith has a good faith basis for the belief but that belief is not MCPC 3.2-7 & 3.2-8 malhonnêteté, fraude commise an objectively reasonable one. par un client. ○ (2) bring the administration of justice into dispute, or MCPC 7.2-1 Lawyer must be courteous and civil with would have the tendency to do so. CRITIQUES OF CIVILITY all ● “A lawsuit is not a tea party” MCPC 5.1-5 R v Murray ONSC 2000 ● Does concern about civility chill FACTS: M is a member of the Ontario Bar and certified as a specialist in effective representation? ILLEGALITY criminal litigation by LSUC. Retained in a case of murder and ● Silence lawyers from calling others MCPC 3.2-7 & 3.2-8 malhonnêteté, fraude commise rape.Accused of attempt to obstruct justice (criminal charge) for retrieving out par un client. and keeping for 17 months two video tapes that constituted ● Diversity CPC 14 ne pas aider, ou par encouragement ou instrumentalities of crime as they were created and used in commissions ● Confuses incivility for other ethical conseil, faciliter une conduite qu’il sait ou devrait savoir of sex assaults and other offences. obligations such as access to judicial illégale ou frauduleuse de la part du client. HELD: Acquitted. reasonable doubt as to intent. system CPC 49 A lawyer must cease to act for a client, except RATIO: 1) Concealment of evidence is tricky on the grounds of ethics but where a tribunal orders otherwise: (2) if, will not necessarily amount to criminal charge if it is in a defence strategy. notwithstanding the lawyer's advice, the client or a 2) Material objects are not covered by SCP, only communications representative of the client persists in contravening a NOTES: legal provision or in inciting the lawyer to do so; ● absent solicitor-client privilege there was no legal basis permitting concealment of the tapes. ● The Court, although skeptical of the accused's evidence, was satisfied that a defence strategy of the use of the tapes at trial was "reasonably feasible", and accepted the accused's evidence of his intent to reveal the tapes at trial as "one that might reasonably be true”. ● “I want to make clear that my function in this case is limited to deciding if Murray has committed the crime of attempting to obstruct justice, not to judge his ethics. While ethics may integrate with the issue of mens rea, ethical duties do not automatically translate into legal obligations”.
R v Stinchcombe SCC 1991 (prosecution lawyer) FACTS: The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. Defence counsel was informed of the existence but not of the content of the statements. His requests for disclosure were refused. During the trial defence counsel learned that the witness would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the contents of the statements to the defence. The trial judge dismissed the application. CA refused also. HELD: Appeal allowed, new trial ordered. RATIO: The Crown has a legal duty to disclose all relevant information to the defence, whether exculpatory or inculpatory. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. NOTES: ● The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege (with witnesses, for example) which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. McClure ⇒ innocence at stake.
THEORY & QUOTABLES
TOPIC/ QUOTE/ MAIN IDEA LINKS W/ CASE LAW + DUTIES + CODAL ARTICLES THEME James Rachels: “Today no single theory dominates moral philosophy. For a long time, utilitarianism held centre-stage… there are now a number of competing” Moral schools of thought in moral philosophy. Philosophy Utilitarianism (act- Bentham - “Greatest happiness of the greatest number”, and expanded by John Stuart Mill and Henry Sidgwick to become leading moral utilitarianism) philosophy of 19th century. Criticisms: (1) Backward looking-reasons/ time: promises made cannot be honored if they are less valuable in utilitarian terms when they are meant to honored than when they were given. (2) Too demanding: sees no difference between obligatory actions and supererogatory actions which are “saintly”. (3) No special value of personal relationships. (4) “Rights” based criticisms: Cases where pursuing greatest good can bring one into conflict with rights, i.e. killing one to save a few, etc. In short, utilitarianism cannot account for retributive justice or distributive justice. (5) “Character”: Value of doing moral things because one wants to do it rather than because one has to. This supposedly makes us better humans. Intuitionism W.D. Ross: We owe duties that are independent of one another: to keep our promises, to be grateful, to distribute fairly, to self-improve, etc. These are not reducible to a general principle and cannot be ranked in importance. There is no general answer and we must make a judgement call at each turn. “Systematic description of what ‘sensible people’ happen to think.” Rule-utilitarianism Principle of utilitarianism should be applied to rules, not acts.
Motive-utilitarianism Sidgwick: We should not aim to attain happiness by calculation, but simply set out to live according to motives that promote the general welfare. Reflective equilibrium John Rawls’s A Theory of Justice: “Reflective equilibrium”: ongoing process of synthesis between rules/ principles and intuition-based moral analysis yields a desirable moral norm (equilibrium). Social contract tradition (veil of ignorance): Rawls believes rules should be made as if we were ignorant of personal qualities (race, class, etc). Social contract view Morality is a set of rules that rational people will agree to adopt to further their own interests. “Its really inconvenient to live in a society where it’s ok to murder people”. Hume claimed that we have “benevolent sentiments” that make us care about other people. Contract theorists do not see this as true or necessary. Kantian approaches Kant: Autonomous agent must only act on principles that he would be willing everyone follow as universal law. Morality is not found in intuition, emotion or social agreement, but rather in decisions taken by the individual and for the individual. #categoricalimperative Virtue ethics Modern moral philosophy has been asking the wrong questions. GEM Anscombe: Instead of asking what should we do, it should ask who should we be. Like Aristotle, this view is concerned with ethical practice over a lifetime. Virtue is developed through practical experience and character-building. But how do we decide which are virtuous qualities? Feminist scholars like virtue ethics because it gives space for “typically feminine values” and recognizes the importance of values that govern small-scale human relationships. No theory Thomas Nagel argues that it’s too complicated and diverse to theorize.
Role Morality Tim Dare, “The Standard Conception of the Lawyer’s Role” ● Principle of partisanship: sole allegiance is to the client, “aggressive and single-minded pursuit of the client’s objectives” ○ Critique: Lawyers become morally insensitive. ● Principle of neutrality: Lawyer must not allow their view of the morality of client’s objectives to affect the zeal of pursuit of legal objectives. ○ Critique: Respecting our freedom existentially means not denying our possibilities for choosing to act otherwise (Postema), we evade our freedom by avoiding responsibility. ● Principle of non-accountability: Role-obligations of lawyers are distinct from those of ordinary morality. A lawyer is not to be judged by the moral status of their client’s projects. ○ Critique: Institutional morality does not shield the lawyer from being judged as immoral (Luban) ● Role morality: each person has many roles (father, mother, son, etc.) that create different moral contexts defined and measured against what is appropriate. Becoming a lawyer means ○ Disconnecting from morality means being less able to serve clients who often seek more than legal advice. Also bad for lawyers who often experience a moral crisis. ○ Kronman: revival of lawyer-statesman: guiding clients and communities to choices where there are no mechanical answers.
CPC 32 A lawyer may agree to act for a client no matter what his opinion may be on the client's guilt or liability. Calling, Julian Webb, “Being a Lawyer/ Being a Human Being” Profession, or ● History: Noblesse oblige to new contractualism Business? ● Deontic (rules- what) v. aretaic (virtue ethics- who) is a false dichotomy. ● Role-morality is false moral neutrality, and is no basis for ethics ● Problem with role-morality is that many become their professional being (Hegelian self-realisation) ● Virtue ethics: what if you can’t change your character? And what about people acting “uncharacteristically”? “The New MacFarlane CPC 42 Throughout the course of a mandate, the lawyer must inform and Lawyer” ADR is the solution to all our problems and reconciliatory practice should be the advise the client about all available means for settling his dispute, including new way, getting rid of the adversarial nature of lawyering. dispute prevention and resolution methods. Lamed: Perhaps, but ADR is not always accessible. Vocation Vocation: In Floyd & Gallagher, Legal Ethics, Narrative and Professional Identity: Spaulding v. Zimmerman The Story of David Spaulding quoting Frederick Buechner “The place where RATIO: When information is confidential but not privileged, that information may your deep gladness and the world’s deep hunger meet.” Finding a vocation only be produced to the other party when legal rules requiring production are depends on finding yourself! invoked or exception to confidentiality applies.
Access to Alice Woolley AG v. Christie SCC justice ● Access to justice problem as three main assumptions: (1) access is RATIO: There is no right to general representation in Canada where “life and important to ensure rights, (2) access to justice necessitates counsel, liberty” are not concerned, in part because McLachlin J does not want to impose (3) counsel is too expensive for many people. the systemic burdens involved in recognizing this right (access to justice scheme ● Poor and vulnerable are particularly prone to legal problems and they for all). are the least able to have access to justice. Section 10(b) of Charter provides right on arrest or detention ● Canadian jurisdictions have attempted to bridge the access to justice “Lawyers are a vital conduit through which citizens access the courts, and the gap: legal aid. law.” (para 22) ○ Eligibility based on family income and family size. Some financial contributions in ON. Quebec has just heightened its CPC Preamble WHEREAS the practice of the profession of lawyer is based on limit to $19, 202 the following values and principles which a lawyer must take into consideration in all circumstances: (1) compliance with legal provisions and preservation of the rule of law; Report of the Canadian Forum on Civil Justice Action on Access to Justice in (2) access to justice Civil and Family Matters ● Everyday legal problems. CPC 34 A lawyer must inform his client without delay when he believes the ● Nearly 12 million Canadians will experience at least 1 legal problem in client qualifies for legal aid. a given 3 year period. 40% of marriages will end in divorce. ● Problems multiply when untreated. Legal problems lead to more legal MCPC 4.1-1 [1] [2] [3] problems and cross with social or health related problems. ● Solutions: Institutional solutions (create local and national access to justice mechanisms), Innovation goals (Refocus justice system to address everyday legal problems, make essential legal services available to everyone, make courts accessible multi-service centres for dispute resolution, legal education agenda), Research goals (gather data, promote funding strategy)
Deborah Rhode, “Reforming American Legal Education and Legal Practice” ● Should the regulatory framework of legal sector be reworked to promote competition, innovation and public and consumer interest? ● Role of legal education in promoting Access to Justice: ○ Greater diversity in ○ Challenge rankings system ○ Curtail accreditation requirements ○ Value skills training ○ Vary program length based on practice ○ Law schools could vary in the specialities offered, reliance on adjunct and online
PRO BONO: Pros: ● Access to justice. Rights-based or utilitarian morality. ● Legal profession has monopoly on legal services. It is like CSR of lawyers. ● Encourages a socially conscious culture among lawyers. ● Let’s distribute legal services instead of #cashmoney. Cons: ● Only provides a partial solution to systemic problem. ● Discretionary, lawyer chooses his pro bono cause. May lead to inequitable treatment and discrimination. ● If pro bono is mandatory, it shouldn’t be called pro bono, it should simply be our job. ● Mandatory pro bono is not fair, big firms will be able to do it, not small firms or solo practitioners. In-House Sung Hui Kim, The Ethics of In-House Practice” Chap 10 MCPC 3.2-3 l’avocat agit pour l’organisme et non ses représentants Practice Ambiguity and internal contradiction in the job description: corporate decision- MCPC 3.2-3 [1] verify the agent’s actual or ostensible authority! maker vs mere adviser. The client is the organization, but the lawyer deals with MCPC 3.2-8 up-the-ladder protocol the authorized constituents. ● If lawyers believes that its organization violation of the law will amount In case of non satisfaction of up-the-ladder requirement, lawyer may withdraw. to substantial prejudice, it may report confidential information outside But what does it entail in the case of employee relationship (in-house)? Model the organization. isn’t tailored to this reality. ● Illegal conduct posing an insubstantial risk of harm is excluded from the lawyer’s formal gatekeeping jurisdiction, only when there is a In-house counsel is bound by the solicitor-client privilege and the duty of substantial risk of harm and illegal conduct. In this latter case, lawyer confidentiality. must report to the board and/or enforcement agencies. Lawyer still has to respect solicitor-client privilege if info relates to legal advice Grey zone: unlawful action but immaterial risk of harm, where risk to the (but not business dealings) organization is minimal, deference to business decision. Alayne Fleischmann case with JPMorgan. she went up-the-ladder and now is Where unlawful action and material risk of harm, then up-the-ladder protocole. unemployed.
Dec 2013- 4,600 / 30,000 lawyers in house in ON In house grown by ⅓ since 2012 Due to the effects of 2008, insourcing legal fees can save companies cash #money. Government Dodek Chap 10 in Woolley MCPC 5.1-3 devoir en tant que procureur Lawyer ● Lack of focus in codes on public lawyers. “the orphan of legal ethics”. MCPC 5.1-3 [1] le juriste a comme but premier non pas de chercher à ce que ● As public servants, government lawyers also have a duty to uphold the l’accusé soit condamné, mais plutôt de veiller à ce que la justice soit faite au moyen d’un procàs impartial sur le fond. Boucher v. The Queen rule of law. “The key difference btwn the gvt lawyer and the private lawyer is that the gvt lawyer serves the public interest exclusively, if indirectly and derivatively, over and above any private interests”. Prosecute based on evidence, not on public opinion, not because of pressure Lawyers for the state have a double obligation- to the public and to their client. from courts. AG’s independence from judicial review in the matter of prosecutorial discretion (authority is delegated to AG from the sovereign, protected from interference by Edgar Smith other arms of government. Exposed the failure of the ministry of justice to ensure charter compliance with Crown is not free from its ethical dilemmas, as it also expected to be adversarial legislation. R v Rose Report up- the latter → requirement to report wrongdoing. It the reporting doesn’t yield satisfaction, then lawyer faces conundrum. R v. Stinchcombe
Regulation PROCESS: Finney v. Barreau du Quebec SCC (5) Complaint to syndic FACTS: Lawyer B acts in both an incompetent and unacceptable way, lauching In Canada, a guerrilla against former clients. Despite the Barreau’s knowledge, it takes them self-regulation (6) Disciplinary Council = administrative tribunal several years to discipline him. Finney seeks civil liability damages from the + legislation (7) Appeal to Tribunal des professions = “correctness” standard Barreau. REASONING: Did the Barreau’s handling of Finney’s complaints amount to bad (8) Judicial Review to Superior Court = standard of “reasonableness” Bar civil faith within the meaning of s.193? Dunsmuir v New Brunswick liability Yes: the SCC gives “bad faith” a broad meaning, which encompasses gross immunity is to (9) Appeal to Court of Appeal fault and recklessness. Barreau is responsible for Finney’s moral injury. give sufficient RATIO: When the Barreau act with recklessness or gross fault in the latitude to Alice Woolley performance of its duties, e.g. disciplining a member, it can be held civilly liable. perform its Reasons for self-regulation: Bad faith doesn’t need intentional fault. duties (1) Self-regulation is undertaken in the public interest to ensure legal services are provided to the public ethically and only by persons CCQ 1376 The rules set forth in this Book apply to the State and its bodies, and qualified to do so. to all other legal persons established in the public interest, subject to any other (2) Preserve a monopoly over legal services (market theory) - 128.1-128.2 rules of law which may be applicable to them. Loi sur le Barreau (3) Keep lawyers and clients free from threat of the State Professional Code: 23. The principal function of each order shall be to ensure the protection of the public. // For this purpose it must in particular supervise the (4) Structural functional approach: Only members in the profession have practice of the profession by its members. the knowledge to assess each other’s conduct (5) Professions is seen as a source of community in an individualist society Professional Code: 193. Prohibits prosecution for actions undertaken in good (shared education, language, etc. faith
Self-regulation is a dominant trait of a learned profession, along with: · autonomous governing body Parizeau v. Barreau du Quebec QCCA · restricted admission into the profession FACTS: Star family lawyer radiated from the Bar, asking for reinstatement. Is · particular responsibility to client the Tribunal des professions an appeals court? · furtherance of not only an individual but a collective interest RATIO: Le Tribunal des professions exerce une fonction et une compétence d'appel. La norme de contrôle applicable à sa décision est celle de l'erreur manifeste et dominante (test du caractère raisonnable). Il s'agit de l'erreur qui Roman Aydogdu, “La responsabilité sociale de l’avocat” détermine l'issue du litige en ce que la conclusion du décideur des faits ne peut ● Au moyen-âge, les avocats se retrouvent dans un néant social. Entre tenir, rendant ipso facto cette décision déraisonnable. l’État et le marché. NOTES: La décision du TP n’était pas déraisonnable et la CS lui devait ● Pour sortir de cet enjeu, ils concluent une alliance avec le public, afin déférence sur cette base. Au lieu, CS a appliquée la norme de la décision de créer un barreau, afin de garantir l’indépendance des avocats. correcte, ce qui était une erreur. ● Le mandat des avocats est passé de la sphère judiciaire à la sphère publique. Law Society of Upper Canada v. Burgess #good character ● RSA vient du mouvement anglo-saxon de RSE. FACTS: Burgess has completed the bar admission cycle and her articles: she ● RSA devient une internalisation des externalités (limitation de l’accès à seeks admission to the bar. In the Good Character section of her application, she lies about never receiving an allegation of academic misconduct, when in la justice) crées par le monopole de l’exercice du droit pour les fact she did receive such an allegation for plagiarizing a paper during her B.A. membres du Barreau. She subsequently misrepresents the nature of the misconduct both to the Law ● RSA tend à rétablir la confiance du marché envers le Barreau. Society and to reference-letter writers. She eventually admits the truth. RATIO: Dishonesty, e.g. concealing academic misconduct, is inconsistent with the “good character” requirement and is part of competence; it prevents admission to the bar, until the law society is satisfied that the applicant has become of good character. The Bar decides what constitutes good character, showing its power vis a vis admissions. Codes Donald Nicolson, “Making lawyers moral? Ethical codes and moral character” ● Professional codes of conduct cannot perform the task of ensuring lawyers uphold high ethical standard. ● Codes have the potential to impact lawyer behaviour, but will have limited impact if lawyers are not committed to acting ethically and possess the sort of character to do the “right moral thing”. Virtue ethics ● Codes have a role to play, based on their form: “aspirational” (guide rather than direct behaviour) v. “disciplinary” (duties focusing on prohibition). ● What’s wrong with codes? Rest: moral behaviour involves four components: moral sensitivity, judgment, motivation, courage. Even if people know what is moral (first two) they will not put it into practice (second two) unless they develop practical wisdom (Aristotle) which enables them to see how to act in practical situations and will lead to virtue. ● What is right? Diversity of lawyers’ backgrounds means we have to write it down. Politically, the public asks for more professional accountability. Virtue ethics is conservative and risky, and is too vague to guide moral behaviour. Codes can help develop “professional moral character”; Aristotle argued that rules help develop wisdom. ● What is the right type of code? No code can be totally clear, everything can be interpreted. The trend is for disciplinary codes. But without more aspirational ideals, ethical behaviour will disappear and rule adherence will lead to mindless conformity to the rules. Lawyers will not know how to deal with novel situations (“moral muscles”). Ethics will be reduced to risk management in order to avoid consequences, as well as “creative compliance”. ○ SO? “A contextual code”! Achieving the right balance between “enforceability and insubstantiality”. Distinguish, but present, both ethical norms (contextual) and conduct norms (disciplinary). ○ Instead of promoting lawyers representing DESPITE moral objections in cases of power imbalances, a contextual code could push lawyers to redress these imbalances.
Alice Woolley Codes have two main functions: ideological and regulatory Criticisms of codes: ● Codes serve the interest of the profession, not the public ● Ineffective means of regulation because the profession is too varied Duties envers CPC 129 preserving the honour, dignity and reputation of his profession and to maintaining the public's confidence in the profession. la profession CPC 130 education CPC 131 development CPC 132 Lawyer must collaborate with other lawyers in the interests of clients and the sound administration of justice. // He must therefore avoid any unfair practice or any conduct towards another lawyer which could abuse the other lawyer's good faith or trust. He must also avoid criticizing, in an unrestrained or unfounded manner, his competence or conduct, the quality of his services or his fees. CPC 133 warn against admission of bad lawyers to the bar CPC 134 Tell on other lawyers when they: (1) the unlawful custody or use of monies or other property held in trust; (2) the termination of the practice of the profession; (3) the inability to practise the profession; (4) participation in an unlawful act when practising the profession; (5) a health condition that could materially prejudice a client; (6) conduct that raises a doubt as to his honesty, loyalty or competence; or (7) the performance of any act whose nature or seriousness is such that it could adversely affect the honour, dignity or reputation of the profession or the public's confidence in the profession. CPC 135-138 Disciplinary