1. Introduct Intr oduction ion to Legal Lega l Ethics Eth ics (Chapter (Chapte r 1) A. Introduc Intr oduction tion [Law Society of BC v a!our ]: Advertising; ]: Advertising; Law Society Society have jurisdiction to discipline discipline conduct unbecoming unbecoming of a lawyer with respect of the content of lawyers advertising o Vancouver.. He advertised the services provided by his "acts# J was a senior lawyer practicing in North Vancouver law frm and, as a conseuence, was !ound guilty o! "conduct unbecoming# a member o! the $aw %ociety by the $aw %ociety o! &ritish 'olumbia. (he $aw %ociety)s ability to regulate members) advertising was challenged as contrary to !ederal competition legislation. (he challenge was unsuccess!ul. *n the course o! its decision, the &ritish 'olumbia 'ourt o! +ppeal considered the powers o! the $aw %ociety o! &ritish 'olombia to regulate pro!essional misconduct. o Issue# oes the $aw %ociety o! &ritish 'olumbia have -urisdiction to discipline lawyers !or advertising prices o! their services /es, s, the $%&' does have -urisdiction to discipline conduct unbecoming o! a lawyer that could $eld# /e o e0tend to content o! lawyer)s advertisements. *t is a broad power meant to protect the 1integrity o! the legal pro!ession). [%rescott v LSBC]: Benchers of Law Society are guardians of proper standards of professional and ethical conduct o &atio# (he 1&enchers) 2$aw %ociety o! 3pper 'anada is governed by the board o! directors, who are 4nown as the "benchers#5 are the guardians o! proper standards o! pro!essional and ethical conduct. o 6ne o! the most important statutory duties possessed by the benchers is that o! disciplining lawyers who !ail to observe the proper standards o! conduct and7or ethics which are necessary to 4eep the pro!ession that very high plane o! honesty, integrity and e8ciency which i s essential to warrant the continued confdence o! the public in the pro!ession. B. 'hat are Lawyers ethics and professional regulation (he defnition o! "legal ethics#: $awyer)s ethics deals with the ethical obligations o! the practicing lawyer, both as individuals and as members o! organisations. $awyers) ethics addresses the constraints on lawyers conduct: the rules, principles and legal obligations with which l awyers are reuired to comply in conducting their legal practice. *t also addresses the moral or ethical aspirations o! the practicing lawyer 9 the type o! decision ma4ing process and decisions which an ethical lawyer will employ and ma4e. "%rofessional regulation # is also concerned with the ethics o! legal practice. *ts concern e0ists however, at the level o! regulation and regulation and governance: governance: how do we determine and en!orce ethical constraints on lawyer conduct +s presently structured, structured, all 'anadian lawyers are regulated in signifcant part through a !orm o!
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"sel!;regulation# "sel!;regulation# in which the rules o! ethical conduct, the standards !or admission to the pro!ession, and the en!orcement o! those rules and standards, are set by lawyers themselves. C. Source Sou rces s *n determining what constitutes ethical conduct, a lawyer can loo4 to a number o! sources !or guidance. (hese include: o 'ase law and legislation o
. 'ase $aw and $egislation 'ase law and legislation 2including regulations5 place constraints on what lawyers can and cannot do in legal practice. (he law o! 1negligence) obliges lawyers to meet meet certain basic standards standards o! competence. competence. o o (he law o! 1fduciary duties) duties) obliges lawyers to act with loyalty in !urthering !urthering the interests interests i! their clients, and to put the interests o! their clients be!ore those o! themselves, or others. o (he law o! 1contracts) 1contracts) governs the the specifc obligations obligations a lawyers has to a client under a retainer retainer agreement 2whether written or oral5. o (he law on 1ta0ation 1ta0ation o! legal !ees), in which clients or lawyers obtain obtain court assessment assessment o! a lawyers bill bill and an order reuiring the bill to be paid as assessed, provides guidance guidance on a lawyers ethical obligations when charging a client. o 'ases dealing with the law o! 1evidence) and, i n particular, the doctrine o! 1solicitor;client 1solicitor;client privilege), are essential !or understanding the lawyer)s obligation o! confdentiality to clients. (he rules o! court and the cases interpreting those rules have dealt with lawyer ethics in the conduct o! an action. ?.
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B. $aw %ociety isciplinary ecisions $aw %ociety disciplinary decisions are publically available through law society websites, Cuic4law and 'an$**. isciplinary decisions provide insight into the meaning o! provisions o! the 'odes o! 'onduct. (hey also indicate how law societies generally generally defne pro!essional pro!essional misconduct 2misconduct 2misconduct by the lawyers lawyers when practicing law5 and the conduct unbecoming 2misconduct 2misconduct by the lawyer outside o! his or her legal practice5. isciplinary decisions set out the standard o! proo! !or establishing that a lawyer has committed pro!essional misconduct and the sorts o! sanctions that may be imposed. isciplinary decisions provide, however limited guidance to lawyers because they address only a narrow range o! lawyer conduct, concentrating mostly on clear legal violations such as stealing !unds !rom clients, or on a lawyers re!usal to comply with law society regulatory reuirements. reuirements. D. =rinciples =rincipl es or "norms# Eith respect to all these sorts o! uestions important sources o! guidance are principles or "norms# "norms# that apply to the wor4 that lawyers do. =rinciples or norms play an additional role o! importance. (o (o act ethically, lawyers need to be sensitive to when an ethical issue has arisen they need to have the -udgment to respond to that ethical situation appropriately, and they need to have the motivation and courage to put their response into action. *. So+e 'ays of thin,ing a!out -nor+al ethics (philosophical schools of thought on ethics) >. Virtue @thics Aristotelian virtue ethics ethics e0plains ethical action through the combination o! human character, practical -udgment and orientation orientation towards human Aourishing. *t suggests that individuals possess virtues 2or vices5 which orientate them towards 2or away ! rom5 ethical conduct. (hus, a lawyer !aced with a dilemma will resolve resolve that dilemma through exercising judgment about how those virtues are appropriately balanced in the circumstances. (he circumstances. (he lawyer will recognise the importance of the virtues of loyalty, loyalty, honesty, care, compassion, justice and integrity to the situation, and will exercise judgment as to what those vi rtues reuire given the particular circumstances. o @F: (o (o understand virtue ethics, consider the !ollowing problem: Jac4 and Jane both wor4 !or a government agency responsible !or combatting terrorism. terrorism. (he agency has apprehended F, and has e0cellent grounds !or believing that F and others have been conspiring to set oG e0plosive devices at the 'anadian National @0hibition on the !ollowing day. day. F)s co;conspirators have not been !ound. F re!uses to tal4. Should !ac" and !ane torture # to obtain information to prevent the execution of the conspiracy
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+nswer: + virtue ethics based response to this problem would consider it through the applicable virtues which might include, respect, dignity, compassion, -ustice and !airness. *t would then be assess the !acts and how diGerent responses to the !acts 2torture or not5 would accord with the virtues. (he ethical answer to the uestion would be that most consistent with the pursuit of the virtues as properly assessed through the j udgment of what the facts reuire . ?. 3tilitarianism 2'onseuentialism5 3tilitarianism rests on the premise about human beings want to maximise their$ self%interest$ and will see" to do so. so . Humans possess "instrumental rationality# 9 they can identi!y and will act to pursue their own interests. 3tilitarianism also asserts the additional premise that a society in which overall human interests are ma0imised is the best society. society. (he general aim o! a society should be to achieve " the greatest good for the greatest number #. number #. or the utilitarian, the most ethical action is that which is li "ely to do the greatest good for the greatest number , or, or, where that is not possible, to do the least amount of harm to the fewest number of pp l. urthermore, urthermore, in its most sophisticated !orms, utilitarianism is not so much a means o! reaching ethical decisions as it is a way o! -udging whether a decision is ethical. However, i! a!ter the !act it is apparent that an action has had terrible conseuences, conseuences, those conseuences -usti!y assessing the action as bad or unethical. o @F: (o (o understand the application o! utili tarianism, consider again the Jac4 and Jane torture hypothetical. (he utilitarian analysis o! the problem would reuire consideration o! the conseuences o! the torture torture choice. Ehat would happen to F, to Jac4 and Jane and to others i! they torture F Ehat will happen to F, to Jac4 and Jane and to others others i! they do not torture F Ehat are the conseuences o! a rule prohibiting torture in this situation +nswer: (he ethical response should aim to ma0imise the positive conseuences, and minimise o the negative conseuences, that are are possible given the !acts at issue, and given the rules that could be developed to decide what to do in the !ace o! those !acts. B. Iantian7eontological Iantian7eontological (heories (heories o! o!
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universal law, that is, those that could apply to evert other !ree 2reasoning5 person. (he !undamental moral reuirement reuirement which !ollows !rom the application o! the categorical imperative i s that you must treat every every person as having a free will, and you must not not ma"e any other person merely a means means for the exercise of of your own free will. will. 'ou 'ou must treat every every person as an end, end, and not merely as means means (i.e& end ) main objective; means ) getting to a given goal*. o @F: Iantian also applies to Jac4 and Jill)s ethical dilemma over whether to torture F. o +nswer: (he answer it gives to the torture hypothetical would !ocus on articulation and application o! the appropriate moral law as derived !rom the categorical imperative. &ecause the incentive !or torture is entirely conseuentialist, conseuentialist, it is unli4ely that a moral rule could -usti!y it torturing a person to achieve one)s own 2or societies5 goal would seem a prima !acie denial o! that person)s moral agent, and treatment o! him as merely a means. D. =ostmodernism Ehat postmodernism identifes as impossible is a calculus through which moral ideas or -udgments can be tested and per!ected. *t posits that ethical decisions must be made through individual -udgment and moral institutions, through the sub-ective viewpoint o! the individual ma4ing them. +n ethical individual will ta4e responsibility !or a decision that he or she ma4es, and be accountable !or it, but he or she will not be aided in ma4ing that decision by abstract or ob-ectively oriented attempts to !ollow a rule, or to assess the decisions conseuences. conseuences. o @F7+nswer: i! Jac4 and Jill are postmodernists they must apply their individual -udgment and moral institutions to determine the ethical7right!ul response to F. urther, and importantly, they must accept that they are the ones who made the decision and ta4e responsibility !or i t. + postmodernist Jac4 and Jill must be prepared prepared to e0plain e0plain why they decided to torture F 2i! they did so5 and why why they decided not to torture ' 2i! they did not do so5. No euation or analytical calculus)s will identi!y the correct correct solution to the problem !or them 9 they must simply apply their intuitions and -udgment, ma4e a decision, provide -ustifcations and ta4e responsibility !or the decision they have made. . =luralism =luralism asserts both that there are various values, and, that there are various ways o! identi!ying which values are important. *t simply asserts that the attempt to fnd a single uni!ying value or way o! identi!ying values is misguided and impossible.
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@F7+nswer: (he Jac4 and Jill pluralist is, li4e the postmodernist, postmodernist, also somewhat unconstrained in how to assess the torture problem. (he pluralist may consider virtues, conseuences and the possibility o! applying a universal rule. + pluralist will not be neutral in assessing whether to torture torture F, but also will not be !ound by one particular way o! reasoning through through the problem. *n the end, li4e postmodernists, postmodernists, the pluralist will be reuired to e0ercise -udgment, to e0plain the decision and to ta4e responsibility responsibility !or what that person has done. E. 'hat does it +ean to !e an ethical Lawyer *n reading this section, you can consider what mode o! ethical thought: virtue ethics, conseuentialism, Iantiasm, postmodernism or pluralism 9 best e0plains these competing conceptions, and would be most use!ul in attempting to apply them to an actual ethical problem. >. $oyal +dvocacy o 1Loyalty ) is the core moral reuirement or or value traditionally value traditionally associated with legal practice. 'ommentators who emphasise the i mportance o! loyalty have analogiKed the lawyer;client lawyer;client relationship to "!riendship# in order to e0plain what loyalty reuires. [', ried: "(he $awyer as a riend]: " + lawyer is a !riend i n regard to the legal system. He is someone who enters into a personal relation with you. (hat means that li4e a !riend, he acts in your interests, not his own or rather he adopts your interests at his own. &ut within that limited domain the intensity o! the identifcation with the clients) interests is the same. o $oyalty brings two central obligations to the lawyer;client relationship: relationship: irst, it reuires the lawyer to place the interests of the client above those of other people . %econd, it reuires the lawyer to place the interests of the client above his or her own. [%trother v 'anada] +s recently described by the %upreme 'ourt: " + !undamental duty o! a lawyer is to act in the best interest o! his or her client to the e0clusion o! all other adverse interests, e0cept those duly disclosed by the l awyer and willingly accepted by the client#. o Ehy does a lawyer have a duty o! loyalty to a client @ach individual in society is autonomous and, as such, is entitled to be !ree !rom unwarranted state inter!erence. Laintaining ones autonomy !rom improper state inter!erence reuires reuires every person to have the right to access the -ustice system. o (he !ollowing e0cerpt e0cerpt de!ends the 1loyal 1loyal advocacy) conception conception o! the lawyers lawyers role *t relies relies on the idea o! law as a !orm o! "social settlement#, arguing that the !unction o! the lawyer is to help law achieve that purpose. ['oolley# -In *efence of /ealous Advocacy #]: defends the +loyal advocacy$ conception of the lawyers role and relies on the idea of law as a form of +social settlement$, arguing that the function of the l awyer is to help achieve that purpose (i.e.& +social settlement$*. o
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+ duty o! loyalty is intertwined with the fduciary nature o! the lawyer;client relationship. $oyalty is o!ten cited as one o! the defning characteristic o! a fduciary. fduciary. iduciary iducia ry duties are o!ten called into e0istence to protect relationships o! importance to the public including, as here, solicitor and client. isloyalty is destructive o! that relationship. (he aspects o! the the duty o! loyalty relevant relevant include: 2i5 (he duty duty to to avoid avoid conAi conAicti cting ng inter interest estsMin sMinclu cludin ding g the lawye lawyers rs perso personal nal inter interest est 2ii5 + duty duty o! commit commitment ment to the the clients clients caus cause e 2somet 2sometimes imes re!e re!erre rred d to as "Kealo "Kealous us representation# represen tation#55 !rom the crime counsel is retained, not -ust at trial, i.e. ensuring that a divided loyalty does not cause the lawyer to "so!t;peddle# his or her de!ence o! a client out o! concern !or another clientMand 2iii5 + duty o! o! candour candour with with the client client on on matters matters releva relevant nt to the the retainer retainer.. *! conAict conAict emerg emerges, es, the client should be among the frst to her about it. *n her dissenting -udgment in [ %trother v 'anada], cLachlin argued that it is improper to "superimpose# a fduciary duty o! loyalty beyond that contracted !rom between the parties . However, Binnie [< v Neil], writing !or ma-ority, disagreed, holding that fduciary duties "may include obligations that go beyond what that parties e0pressly bargained bargained !or#. (he duty o! loyalty to a client can arise under contract, but more obviously arises under the fduciary obligation 'onsider whether Lc$achlin or &innie J)s approach to a lawyers obligations is pre!erable in light o! the !ollowing case. [S2arfer v Chodos ]: 0iduciary duty- conict of interest; lawyer breaches /duciary duty by having an a1air with clients wife o "acts# (he de!endant ', was the 2plaintiG %)s ; client5 lawyer in a personal in-ury claim. *n the course o! his representation o! the plaintiG, the de!endant lawyer learned about di8culties in the plaintiG)s marriage. (he de!endant 4new the plaintiG)s wi!e because she had wor4ed !or him occasionally as a legal secretary. secretary. *n Lay >OP>, the de!endant and the plaintiG)s wi!e had an aGair, which lasted Q wee4s. (he plaintiG discovered discovered the aGair and was devastated. He had had e0isting psychological psychological problems o! which which the de!endant was also aware as a result o! his representation. o Issue# id the de!endant lawyer breach his fduciary duty by having an aGair with his clients wi!e /es es $eld# / o o &atio (Callaghan)# 2he /duciary relationship between a lawyer and his client forbids a lawyer from using any con/dential information obtained by him for the bene/t of himself or a third person or to the disadvantage of his client . (he highest and clearest duty o! a fduciary is to act to advance the benefciaries interest and avoid acting to his detriment. + fduciary cannot permit his own interest to come into conAict with the interest i! the benefciary o! the relationship. 6nce the fduciary relationship
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is established, the onus is on the trustee to prove that he acted reasonably and made no personal use whatsoever o! the confdential in!ormation. %uch conduct vitiates trust and i s a breach o! the conAict o! interest rule o Application# *n engaging in se0ual intercourse with the plaintiG)s wi!e, the de!endant was acting in his own interest and to his personal beneft. * cannot help but conclude that his actions were also to the detriment o! his clients) interests. 3pon discovery o! the aGair, the clients trust in the solicitor was destroyed. %uch conduct which vitiates trust, the essential element o! a solicitor 9client relationship, and results in physical i n-ury to the cli ent, is a breach o! the conAict;o!;interest conAict;o!;interest rules re!erred to above. (he de!endant has not discharged discharged the onus o! proving proving that he acted acted reasonably reasonably in the circumstances. circumstances. (hat in itsel! is su8cient to hold him liable !or damages. damages. ?. (he $awyer $awyer as Loral +gent in =ursuit =ursuit o! Justice o (he !ollowing case arguably arguably demonstrates demonstrates the strength strength o! both Lu!an and Si+ons point o! view, inso!ar as it suggests that a lawyer who focuses exclusively on the interests of his client may improperly lose sight of other moral values, including the obligations imposed by the l awyer$s legal duty to protect the fair administration of justice. justice . ollowing the case will be an e0cerpt !rom $uban)s !amous critiue o! Kealous advocacy, and his assertion o! the irreducible importance o! ordinary morality. morality. o [& v urray3: 3x of case where a lawyer who focuses exclusively on the interests of his client, improperly loses sight of other moral values (legal duty to protect the fair administration of justice 4 in this case*. o &ernardo)s counsel5 removed videos !rom crime scene not !ound by police on his "acts: L 2=aul &ernardo)s client)s instructions, and maintained possession without notifcation to authorities. 'harged with attempt to obstruct -ustice. L held tapes !or purpose o! supporting client)s de!ence 2Iarla Homol4a was actually responsible !or deaths o! victims5. o *ssue: Eas it unethical to handle physical evidence without con!ronting the police reasonable ble doubt as to whether L was acting with the intention to obstruct $eld# (here was no reasona o -ustice he was acuitted acuitted because he may have believed that that under the circumstances circumstances that that he had no legal duty to disclose the tapes until resolution discussions !or trial. o &atio# $awyer has a duty to provide authorities i! they come i nto the possession o! physical evidence 2either 2either (i* immediately turn over the physical evidence to the prosecution; (ii* deposit them with the trial judge; (iii* di sclose their existence to the prosecution and prepare to do battle to retain them5. them5. + lawyer should also be reuired to in!orm a client o! his7her ethical obligations be!ore accepting the item, including the possibility o! having to hand the evidence over to the court or the prosecution. o [Lu!an# -4he Adversary Syste+ E5cuse3# 5ritici6es +6ealous Advocacy$ and asserts the importance of ordinary morality
Argu+ent: the adversarial system 2legal system in common law where two advocates represent parties5 is not very accurate at uncovering truth, with the e0ception o! where uestions o! l aw are argued. Ehen lawyers are attempting to 4eep evidence !rom being admitted, or distorting the meaning o! their evidence, in-ustice is done. @0amples include intimidating claimants so they do not go to trial. *! pro!essional obligation or or legal rules conAict with moral obligations, the lawyer must must obey moral obligations, and disobey l egal7pro!ession egal7pro!essional al rules. B. *ntegrity Ehat does maintaining integrity maintaining integrity reuire reuire o [Eoolley: Eoolley: "*ntegrity in Realousness#]: 1integrity 1 integrity ) is a response to the problem o! conAicts between pro!essional and personal morality. morality. @ither pro!essional or o! personal moral claims must be sacrifced. Ehat emphasising integrity does is assert that lawyers should, where possible, avoid circumstances where personal and professional morality are li"ely to conict 2by, !or e0ample, selecting clients whose moral claims the l awyer can respect5. *n addition, integrity directs the lawyer to be fully cogni6ant of, and responsible for, her choices in circumstances of moral conict . conict . Eolley suggests that a lawyer must 7recognise and ta"e responsibility for the extent to which her professional life reuires her to do things that conict with what, outside of her profession, she would /nd morally unacceptable8 +nd, unacceptable8 +nd, i! choosing to privilege personal morality over pro!essional obligation, she must ta4e responsibility !or that too. ["arrow# -Sustaina!le %rofessionalis+ ]: argues that the traditional +loyalty$ based visions nor the alternative justice%see"ing narratives capture the current complexities of the modern practice of law, and articulates a new concept for the lawyers role 7substantial professionalism8 o arrow, it is sa!e to conclude that the evolving characterisation o! the lawyer Argu+ent# +ccording to arrow, as an "ethical pro!essional# is one that involves a fusion fusion o! o! personal personal and professional professional attributes. attributes. arrow suggests that we are engaging in " a new discourse for lawyers and the legal profession that is see"ing to become personally, politically, ethically, ethically, economically, and professionally sustainable. 9t i s a disclosure that ma"es meaningful space for a lawyers own principles, interests, and life preferences by balancing with other important interests 4 i ncluding, but not dominated by, those of the client client .. *n summary, arrow)s arrow)s view is consistent with the premise that personal values and e0periences are relevant to the development o! a strong pro!essional identity. *n reading the !ollowing -udgment, consider whether !ollowing a model o! sustainable pro!essionalism pro!essionalism could have changed counsel !or the de!endant)s assessment assessment o! their obligations to the plaintiG at the point o! settlement [Spaulding v /i++er+an]: Lawyer has no speci/c ethical obligation to disclose the plainti1$s potentially life threatening condition o
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"acts# the de!endants had reached a settlement with the plaintiG !or in-uries he had suGered in an automobile accident. (he medical report given to the de!endants indicated that the plaintiG was suGering !rom an aneurysm which had not been detected by the plaintiGs own physician. (he de!endants did not disclose the medical report to the plaintiG. (he plaintiG later discovered the e0istence o! the aneurysm and sought to set aside the settlement. Issue: what are the obligations o! the de!endant)s lawyer with in!ormation regarding to a 1potentially li!e;threatening conditions) conditions) that de!ences doctors had !ound in discovery where the plaintiGs are unaware o! the potentially li!e threatenin threatening g condition $eld# the de!endant)s lawyer had no specifc ethical obligation to disclose the plaintiG)s potentially li!e threating condition.
