2007 ORIENTATION LEGAL ETHICS AND PROFESSIONALISM (Professor David M. Tanovich)

Why Think About Ethics and Professionalism? Philosophical Perspective Simon’s lament “ No social role encourages such ambitious moral aspirations as the lawyer’s, and no social role so consistently disappoints the aspirations it encourages.”

Philosophical Perspective

Simon’s lament

“ No social role encourages such ambitious moral aspirations as the lawyer’s, and no social role so consistently disappoints the aspirations it encourages.”

What kind of a lawyer do I want to be? What is my role as a lawyer? If I am a facilitator of justice as the legal profession demands that I be, what is justice? Justice for whom? Contextual thinking Empowerment for social justice lawyering

What kind of a lawyer do I want to be? What is my role as a lawyer?

If I am a facilitator of justice as the legal profession demands that I be, what is justice? Justice for whom?

Contextual thinking

Empowerment for social justice lawyering

Realities of Practice Inevitable tensions will arise in a profession where there are conflicting duties Duty to client Duty to the public Duty to other lawyers Duty to the profession Duty to self

Realities of Practice

Inevitable tensions will arise in a profession where there are conflicting duties

Duty to client

Duty to the public

Duty to other lawyers

Duty to the profession

Duty to self

“ Because I Don’t Want To Be Disbarred!” Lawyers are bound by the Rules of Professional Conduct and subject to discipline by the Law Society of Upper Canada

“ Because I Don’t Want To Be Disbarred!”

Lawyers are bound by the Rules of Professional Conduct and subject to discipline by the Law Society of Upper Canada

Rule 6.11(1) A lawyer is subject to the disciplinary authority of the Society regardless of where the lawyer’s conduct occurs 6.11(2) (Professional Misconduct) The Society may discipline a lawyer for professional misconduct. 6.11(3) (Conduct Unbecoming a Lawyer) The Society may discipline a lawyer for conduct unbecoming a lawyer.

Rule 6.11(1)

A lawyer is subject to the disciplinary authority of the Society regardless of where the lawyer’s conduct occurs

6.11(2) (Professional Misconduct)

The Society may discipline a lawyer for professional misconduct.

6.11(3) (Conduct Unbecoming a Lawyer)

The Society may discipline a lawyer for conduct unbecoming a lawyer.

Professional Misconduct (Rule 1.02) Conduct in a lawyer’s professional capacity that tends to bring discredit upon the profession Breaching the Rules Misappropriation of trust funds Conduct that is prejudicial to the administration of justice

Professional Misconduct (Rule 1.02)

Conduct in a lawyer’s professional capacity that tends to bring discredit upon the profession

Breaching the Rules

Misappropriation of trust funds

Conduct that is prejudicial to the administration of justice

Conduct Unbecoming (Rule 1.02) Conduct in a lawyer’s personal or private capacity that tends to bring discredit upon the legal profession Criminal conduct that reflects on a lawyer’s honesty or fitness as a lawyer Exploitation Dishonest conduct

Conduct Unbecoming (Rule 1.02)

Conduct in a lawyer’s personal or private capacity that tends to bring discredit upon the legal profession

Criminal conduct that reflects on a lawyer’s honesty or fitness as a lawyer

Exploitation

Dishonest conduct

Public Demands It Concern over ethical standards with high-profile cases like Ken Murray and most recently Conrad Black’s lawyers

Public Demands It

Concern over ethical standards with high-profile cases like Ken Murray and most recently Conrad Black’s lawyers

Questions To Ponder Do law schools pay enough attention to ethics? Mandatory class (6 law schools in Canada) First year or upper year Pervasive teaching Is there the commitment from faculty?

Do law schools pay enough attention to ethics?

Mandatory class (6 law schools in Canada)

First year or upper year

Pervasive teaching

Is there the commitment from faculty?

Can ethics be taught? Ethics as morality (am I a good person?) Ethics as role morality (am I pursuing justice?) Ethics as rules (am I following the rules?)

Can ethics be taught?

Ethics as morality (am I a good person?)

Ethics as role morality (am I pursuing justice?)

Ethics as rules (am I following the rules?)

Will peer pressure and the economic realities of practice inevitably trump ethical conduct? If yes, how do we address this?

Will peer pressure and the economic realities of practice inevitably trump ethical conduct?

If yes, how do we address this?

Who should decide the ethical standards of the profession? Benchers (elected by lawyers to govern the Law Society of Upper Canada) Judges Politicians

Who should decide the ethical standards of the profession?

Benchers (elected by lawyers to govern the Law Society of Upper Canada)

Judges

Politicians

Who should regulate the conduct of lawyers? Law Society (Canada) Courts (United States) Independent Body (England and New Zealand) Government

Who should regulate the conduct of lawyers?

Law Society (Canada)

Courts (United States)

Independent Body (England and New Zealand)

Government

The Meaning of Professionalism Chief Justice of Ontario Advisory Committee on Professionalism “Elements of Professionalism” (2001) Scholarship Integrity Honour Leadership Independence Pride Spirit and Enthusiasm Civility and Collegiality Service to the Public Good Balanced Commercialism

Chief Justice of Ontario Advisory Committee on Professionalism “Elements of Professionalism” (2001)

Scholarship

Integrity

Honour

Leadership

Independence

Pride

Spirit and Enthusiasm

Civility and Collegiality

Service to the Public Good

Balanced Commercialism

A Professionalism Crisis? What are some of the problems with the profession?

What are some of the problems with the profession?

Systemic Biases Entrance to law school Choice of area of practice Mobility 2006 data of BAC students 55.8% female 19% racialized 1.5% Aboriginal

Systemic Biases

Entrance to law school

Choice of area of practice

Mobility

2006 data of BAC students

55.8% female

19% racialized

1.5% Aboriginal

Barriers to Justice Cost Time Cultural competence of lawyers

Barriers to Justice

Cost

Time

Cultural competence of lawyers

Corporatization of Legal Practice Disciplinary Enforcement Public Perception Macleans Article – “Lawyers Are Rats” Why did the profession react so strongly?

Corporatization of Legal Practice

Disciplinary Enforcement

Public Perception

Macleans Article – “Lawyers Are Rats”

Why did the profession react so strongly?

Legal Ethics: The Tensions What two ethical issues arose on the facts of The Practice episode?

What two ethical issues arose on the facts of The Practice episode?

The Ethical Issues Whether the defendant’s lawyers should disclose the potentially fatal medical condition of the plaintiff to the plaintiff against the client’s instructions? Whether Eugene should report Jimmy’s breach of the Rules to the Bar?

Whether the defendant’s lawyers should disclose the potentially fatal medical condition of the plaintiff to the plaintiff against the client’s instructions?

Whether Eugene should report Jimmy’s breach of the Rules to the Bar?

Issue#1: Disclosure Of Medical Condition Episode is based on one of the most famous ethics cases: Spaulding v. Zimmerman , 116 N.W.2d 704 (Minn. S.C., 1962)

Episode is based on one of the most famous ethics cases: Spaulding v. Zimmerman , 116 N.W.2d 704 (Minn. S.C., 1962)

What are the competing professional duties involved in whether the medical condition should have been disclosed?

What are the competing professional duties involved in whether the medical condition should have been disclosed?

Duty to the client (confidentiality) What is the scope of a lawyer’s duty of confidentiality? What is the difference between confidentiality and privilege? Important to distinguish between client’s interests and legal rights Duty to the court (candor) Duty to the public (public safety)

Duty to the client (confidentiality)

What is the scope of a lawyer’s duty of confidentiality?

What is the difference between confidentiality and privilege?

Important to distinguish between client’s interests and legal rights

Duty to the court (candor)

Duty to the public (public safety)

Issue #2: Whistleblowing What are the relevant professional duties governing Eugene’s decision whether to report Jimmy?

What are the relevant professional duties governing Eugene’s decision whether to report Jimmy?

Duty to the profession Duty to the firm

Duty to the profession

Duty to the firm

Sources of Ethical Reflection Where might you turn to resolve these competing duties and decide how to act? Personal Morality Rules of Professional Conduct Role Morality

Where might you turn to resolve these competing duties and decide how to act?

Personal Morality

Rules of Professional Conduct

Role Morality

Personal/Common Morality Jimmy What is the “right” thing to do? What are some of the problems with relying on personal morality to resolve ethical issues?

Personal/Common Morality

Jimmy

What is the “right” thing to do?

What are some of the problems with relying on personal morality to resolve ethical issues?

Ontario Rules of Professional Conduct (LSUC) Professional Consensus Formal Justice --- Eugene Anarchy --- Bar Ruling

Ontario Rules of Professional Conduct (LSUC)

Professional Consensus

Formal Justice --- Eugene

Anarchy --- Bar Ruling

Ontario Rules of Professional Responsibility (first published in 1964) (CBA Code published in 1920) Rule 1.03(1)(d) “ The rules are intended to express to the profession and to the public the high ethical ideals of the legal profession.”

Ontario Rules of Professional Responsibility (first published in 1964) (CBA Code published in 1920)

Rule 1.03(1)(d)

“ The rules are intended to express to the profession and to the public the high ethical ideals of the legal profession.”

The set the minimum standards of conduct for lawyering in the province “ The governing body enacts rules of professional conduct on behalf of those it represents. These rules must be taken as expressing the collective views of the profession as to the appropriate standards to which the profession should adhere.” [ MacDonald Estate v. Martin (1990), 77 D.L.R. (4 th ) 249 at 256 (S.C.C.) (Sopinka J.)]

The set the minimum standards of conduct for lawyering in the province

“ The governing body enacts rules of professional conduct on behalf of those it represents. These rules must be taken as expressing the collective views of the profession as to the appropriate standards to which the profession should adhere.” [ MacDonald Estate v. Martin (1990), 77 D.L.R. (4 th ) 249 at 256 (S.C.C.) (Sopinka J.)]

These standards can be enforced through disciplinary proceedings [see Rule 1.03(1)(e) which states that “the rules are intended to specify the bases on which lawyers may be disciplined”] Or costs, including personal costs

These standards can be enforced through disciplinary proceedings [see Rule 1.03(1)(e) which states that “the rules are intended to specify the bases on which lawyers may be disciplined”]

Or costs, including personal costs

The Rules are not intended to be exhaustive Rule 1.03(f) Rules of professional conduct cannot address every situation, and a lawyer should observe the rules in the spirit as well as in the letter.

The Rules are not intended to be exhaustive

Rule 1.03(f)

Rules of professional conduct cannot address every situation, and a lawyer should observe the rules in the spirit as well as in the letter.

Establish rules governing the practice of law including: Competence (Rule 2.01) Confidentiality (Rule 2.03) Conflicts of Interest (Rules 2.04 and 2.05) Fees (Rule 2.08) Withdrawal (Rule 2.09) Advertising (Rules 3.04 and 3.05) Advocacy (Rule 4.01) Civility (Rules 4.01(6) and 6.03) Supervision of students, employees (Rules 5.01 and 5.02) Sexual harassment (Rule 5.03) Discrimination (Rule 5.04) Duty to report breach of rules (Rule 6.03(3))

Establish rules governing the practice of law including:

Competence (Rule 2.01)

Confidentiality (Rule 2.03)

Conflicts of Interest (Rules 2.04 and 2.05)

Fees (Rule 2.08)

Withdrawal (Rule 2.09)

Advertising (Rules 3.04 and 3.05)

Advocacy (Rule 4.01)

Civility (Rules 4.01(6) and 6.03)

Supervision of students, employees (Rules 5.01 and 5.02)

Sexual harassment (Rule 5.03)

Discrimination (Rule 5.04)

Duty to report breach of rules (Rule 6.03(3))

Each rule has a set of commentaries which in some cases serve an explanatory function, in others, impose additional duties

Each rule has a set of commentaries which in some cases serve an explanatory function, in others, impose additional duties

Some rules are mandatory, discretionary while others exhort Rule 2.01(2) “A lawyer shall perform any legal services on a client’s behalf to the standard of a competent lawyer.” Rule 2.03(3) “… the lawyer may disclose … confidential information where it is necessary to do so in order to prevent death or harm …” Rule 1.03(1)(c) “a lawyer has … a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.

Some rules are mandatory, discretionary while others exhort

Rule 2.01(2) “A lawyer shall perform any legal services on a client’s behalf to the standard of a competent lawyer.”

Rule 2.03(3) “… the lawyer may disclose … confidential information where it is necessary to do so in order to prevent death or harm …”

Rule 1.03(1)(c) “a lawyer has … a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.

Are law students bound by the Rules of Professional Conduct? “ Lawyer” defined in Rule 1.02 “a member of the Society and includes a law student registered in the Society’s pre-call training program” However, there is the UofW Faculty of Law, Policy Statement on Student Discipline

Are law students bound by the Rules of Professional Conduct?

“ Lawyer” defined in Rule 1.02 “a member of the Society and includes a law student registered in the Society’s pre-call training program”

However, there is the UofW Faculty of Law, Policy Statement on Student Discipline

“ The spirit and intent of the Code which requires civility, candor, honesty and adherence to sound moral principle shall be observed by all law students in their personal and academic behaviour …” Page 4 --- Code refers to Ontario Rules of Professional Conduct

“ The spirit and intent of the Code which requires civility, candor, honesty and adherence to sound moral principle shall be observed by all law students in their personal and academic behaviour …”

Page 4 --- Code refers to Ontario Rules of Professional Conduct

Dean Elman in “Creating a Culture of Professional Responsibility and Ethics: A Leadership Role for Law Schools” (8 th Colloquium on Professionalism, 2007) “ Indeed, this provision [Rules of PC apply to students “engaged in activities analogous to the practice of law such as mock trials and mooting”] has been interpreted very broadly over time to include almost any student activity to which the Code of Professional Conduct could be applied.”

Dean Elman in “Creating a Culture of Professional Responsibility and Ethics: A Leadership Role for Law Schools” (8 th Colloquium on Professionalism, 2007)

“ Indeed, this provision [Rules of PC apply to students “engaged in activities analogous to the practice of law such as mock trials and mooting”] has been interpreted very broadly over time to include almost any student activity to which the Code of Professional Conduct could be applied.”

In addition to integrity (e.g. cheating), our disciplinary code requires our students to ensure that they act civilly and in a non-discriminatory fashion to one another and in their contacts with third parties For example, a private blog by a law student that posted discriminatory jokes or comments would be a violation of the Code Law School Disciplinary Code is arguably even broader in its application than Rules because they do not make a distinction between public and private conduct

In addition to integrity (e.g. cheating), our disciplinary code requires our students to ensure that they act civilly and in a non-discriminatory fashion to one another and in their contacts with third parties

For example, a private blog by a law student that posted discriminatory jokes or comments would be a violation of the Code

Law School Disciplinary Code is arguably even broader in its application than Rules because they do not make a distinction between public and private conduct

Law Society Act , R.S.O. Chapter, L.8 Licensing Good character requirement (2) It is a requirement for the issuance of every licence under this Act that the applicant be of good character. 2006, c. 21, Sched. C, s. 23 (1).

Law Society Act , R.S.O. Chapter, L.8

Licensing

Good character requirement

(2) It is a requirement for the issuance of every licence under this Act that the applicant be of good character. 2006, c. 21, Sched. C, s. 23 (1).

LSUC Good Character Form 12 questions Question #10 While attending a post-secondary institution, have allegations of misconduct ever been made against you, or, have you ever been suspended, expelled or penalized by a post-secondary institution for misconduct? If yes , attach written details of the allegation and suspension, expulsion and penalty imposed on you to this application.

LSUC Good Character Form

12 questions

Question #10

While attending a post-secondary institution, have allegations of misconduct ever been made against you, or, have you ever been suspended, expelled or penalized by a post-secondary institution for misconduct? If yes , attach written details of the allegation and suspension, expulsion and penalty imposed on you to this application.

How prevalent is cheating in law school? “ The Great University Cheating Scandal” (9 February 2007) (Macleans Magazine) More than 50% of university students admit having cheated (University of Guelph study) US study of graduate students 56% business students admitted cheating 54% engineering students On-line survey (February 2006) (500 respondents) by Lori Shaw, Dean of Students at Dayton School of Law (Student Lawyer, ABA) 2.3% of law students admitted cheating 4/5 who witnessed an instance of cheating reported it

How prevalent is cheating in law school?

“ The Great University Cheating Scandal” (9 February 2007) (Macleans Magazine)

More than 50% of university students admit having cheated (University of Guelph study)

US study of graduate students

56% business students admitted cheating

54% engineering students

On-line survey (February 2006) (500 respondents) by Lori Shaw, Dean of Students at Dayton School of Law (Student Lawyer, ABA)

2.3% of law students admitted cheating

4/5 who witnessed an instance of cheating reported it

2001 University of Toronto marks scandal 24 students were disciplined for falsifying December grades to Bay Street (Toronto) firms 17 were suspended for one year plus a notation on their record Cowan, “Atonement: When 24 Students at UofT’s Faculty of Law Lied About Their Grades to Land Summer Jobs, They Tarnished the School’s Reputation and Risked their Own Futures” (2002), 36 Toronto Life 57 Why did so many first year students feel the need to falsify their December grades to the Bay street firms?

2001 University of Toronto marks scandal

24 students were disciplined for falsifying December grades to Bay Street (Toronto) firms

17 were suspended for one year plus a notation on their record

Cowan, “Atonement: When 24 Students at UofT’s Faculty of Law Lied About Their Grades to Land Summer Jobs, They Tarnished the School’s Reputation and Risked their Own Futures” (2002), 36 Toronto Life 57

Why did so many first year students feel the need to falsify their December grades to the Bay street firms?

One of the students who falsified his grades commented: “ The day I walked into orientation, I didn’t even know what a Bay Street firm was … All of a sudden, orientation was full of T-shirts and paraphernalia from the firms. People were saying ‘You’ve got to get in with Torys or McCarthys!’ It was a whirlwind.”

One of the students who falsified his grades commented:

“ The day I walked into orientation, I didn’t even know what a Bay Street firm was … All of a sudden, orientation was full of T-shirts and paraphernalia from the firms. People were saying ‘You’ve got to get in with Torys or McCarthys!’ It was a whirlwind.”

2004 Bar Admission Cheating Probe (LSUC) 13 articling students were investigated for allegedly sharing and copying work based on e-mail exchanges sent to LSUC and admissions “ Hey guys, here’s the motion.” “ Mine looks just like everyone else’s. think I should change it more?” “ Make sure to make some cosmetic changes so that things do not seem similar.” Other students admitted collaborating but insisted that they did not know what they did was wrong Probe ended abruptly with no disclosure of the investigation or sanctions Tyler, “Cheating Probe Ends Abruptly” Toronto Star (16 July 2004)

2004 Bar Admission Cheating Probe (LSUC)

13 articling students were investigated for allegedly sharing and copying work based on e-mail exchanges sent to LSUC and admissions

“ Hey guys, here’s the motion.”

“ Mine looks just like everyone else’s. think I should change it more?”

“ Make sure to make some cosmetic changes so that things do not seem similar.”

Other students admitted collaborating but insisted that they did not know what they did was wrong

Probe ended abruptly with no disclosure of the investigation or sanctions

Tyler, “Cheating Probe Ends Abruptly” Toronto Star (16 July 2004)

What steps need to be taken to root out cheating in law school? There seems to be some evidence of a relationship between cheating in professional school and practice 2005 New England Journal of Medicine study showed that doctors disciplined by medical boards are three times more likely to have been singled out for unprofessional conduct during medical school

What steps need to be taken to root out cheating in law school?

There seems to be some evidence of a relationship between cheating in professional school and practice

2005 New England Journal of Medicine study showed that doctors disciplined by medical boards are three times more likely to have been singled out for unprofessional conduct during medical school

Harsher penalties and more consistent enforcement Encourage reporting of incidents Changing law school culture of competition Instilling an ethic of professionalism from day one and in all law school activities

Harsher penalties and more consistent enforcement

Encourage reporting of incidents

Changing law school culture of competition

Instilling an ethic of professionalism from day one and in all law school activities

What guidance do the Rules provide to resolve the disclosure of confidential information issue?

What guidance do the Rules provide to resolve the disclosure of confidential information issue?

Rule 2.03 (Duty of confidentiality) Rule 2.03(3) (Public Safety Exception) Can you disclose medical condition under this exception? Public Safety Exceptions In Other Provinces British Columbia (future crime exception) Smith v. Jones (1999), 132 C.C.C. (3d) 225 (SCC) (authorized by law) What decision would you make if acting in these provinces?

Rule 2.03 (Duty of confidentiality)

Rule 2.03(3) (Public Safety Exception)

Can you disclose medical condition under this exception?

Public Safety Exceptions In Other Provinces

British Columbia (future crime exception)

Smith v. Jones (1999), 132 C.C.C. (3d) 225 (SCC) (authorized by law)

What decision would you make if acting in these provinces?

Rule 4.01 (The Lawyer as Advocate) Rule 4.01 (Commentary) sets out many of the basic ethical obligations of criminal lawyers. See also 4.01(2); 4.01(3) (prosecutors); Rule 4.01(8) (guilty pleas) Rule 4.01(1) (duty of candor) Rule 4.02(e) (specific duty not to mislead the court)

Rule 4.01 (The Lawyer as Advocate)

Rule 4.01 (Commentary) sets out many of the basic ethical obligations of criminal lawyers. See also 4.01(2); 4.01(3) (prosecutors); Rule 4.01(8) (guilty pleas)

Rule 4.01(1) (duty of candor)

Rule 4.02(e) (specific duty not to mislead the court)

What guidance do the rules provide with respect to the whistleblowing issue?

What guidance do the rules provide with respect to the whistleblowing issue?

Rule 6.01 (Responsibility to the Profession) (integrity) Rule 6.01(3) (Duty to report misconduct) Would Eugene have an ethical duty to report Jimmy under this Rule?

Rule 6.01 (Responsibility to the Profession) (integrity)

Rule 6.01(3) (Duty to report misconduct)

Would Eugene have an ethical duty to report Jimmy under this Rule?

What if Rules silent or there is a discretion? Where do you go to fill in the gap? What if you, like Jimmy, are not prepared to follow the Rules? Is lawyer nullification ever ethical?

What if Rules silent or there is a discretion? Where do you go to fill in the gap?

What if you, like Jimmy, are not prepared to follow the Rules? Is lawyer nullification ever ethical?

Role Morality What is it? “… set of norms, standards and values that govern the conduct of individuals when acting as lawyers. It is the profession’s ‘professional conscience.’”

Role Morality

What is it?

“… set of norms, standards and values that govern the conduct of individuals when acting as lawyers. It is the profession’s ‘professional conscience.’”

Where do these norms and standards come from? Expectations (what role should lawyers play in our society) Codes of conduct Jurisprudence

Where do these norms and standards come from?

Expectations (what role should lawyers play in our society)

Codes of conduct

Jurisprudence

Reconstruction of role morality from the “hired gun” to a “facilitator of justice” Evolution of the Rules Rule 2.03(3) (Public Safety Exception) Rule 5.04 (Non-Discrimination Rule) Applies to everyone the lawyer has contact with Substantive equality Duty to take reasonable steps

Reconstruction of role morality from the “hired gun” to a “facilitator of justice”

Evolution of the Rules

Rule 2.03(3) (Public Safety Exception)

Rule 5.04 (Non-Discrimination Rule)

Applies to everyone the lawyer has contact with

Substantive equality

Duty to take reasonable steps

Speeches from the leading members of the bar and bench Jurisprudence --- cases like Smith v. Jones (1999), 132 C.C.C. (3d) 225 (S.C.C.) and R. v. Lyttle (2004), 180 C.C.C. (3d) 476 (S.C.C.)

Speeches from the leading members of the bar and bench

Jurisprudence --- cases like Smith v. Jones (1999), 132 C.C.C. (3d) 225 (S.C.C.) and R. v. Lyttle (2004), 180 C.C.C. (3d) 476 (S.C.C.)

What is justice? Fairness --- ensuring that your client and/or the other party have the opportunity to obtain what they are entitled to under the law properly interpreted --- protecting your client’s legal rights Equality --- ensuring that both parties and those impacted by the litigation or dispute are treated in a non-discriminatory fashion Responsibility --- harm reduction

What is justice?

Fairness --- ensuring that your client and/or the other party have the opportunity to obtain what they are entitled to under the law properly interpreted --- protecting your client’s legal rights

Equality --- ensuring that both parties and those impacted by the litigation or dispute are treated in a non-discriminatory fashion

Responsibility --- harm reduction

Minimum ethical obligations imposed on lawyers by a justice-seeking ethic (pages 317-318 of Law’s Ambition)

Minimum ethical obligations imposed on lawyers by a justice-seeking ethic (pages 317-318 of Law’s Ambition)