Dispatches From the Front Lines of Canadian Legal Ethics

Slaw.ca Legal Ethics Column, December 16, 2019.

Found online at: http://www.slaw.ca/2019/12/16/dispatches-from-the-front-lines-of-canadian-legal-ethics/

On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date.

Thematic Index

Access to justice (see presentations #3 and #11 below)
Zealous advocacy and its limits (see presentations #1 and #2 below)
Harassment and discrimination within the profession (presentations #16, 17, 18)
Teaching ethics in law school (presentations #6, 7, 8, 9)
The Regulation of Judges (presentations #12, #15)
The limits of “business-like” lawyer behaviour (advertising & fees) (presentations #10, #11)
Lawyers’ relationship to power, including political power (presentations #9, #13, #19, #20), corporate power (presentations #4), and racial privilege (presentation #13)

Summary Notes

1. Deanne Sowter (U. Toronto): “The Bounds of Legality for Family Lawyers: Is the Law Enough?”

How should family lawyers deal, ethically, with problematic and/or over-aggressive client instructions?
The law already REQUIRES lawyers to restrain their zealous advocacy in the family law context, we just need to make that more clear.
Family litigation can be used strategically to control an ex-spouse and cause harm to them. Is it ethical for family lawyers to be part of such strategies? Is the HARM inflicted on the ex-spouse ethically irrelevant?
The “standard conception” of legal ethics says that lawyer must pursue client interests right up to bounds of legality, and is not accountable for harm caused in so doing. Is this acceptable for family law practice?
Lawyers should respect the autonomy of clients, respect their right to make their own moral decisions (within the bounds of law)
however unique features of existing family law DO affect the appropriate lawyer role, including Best Interests of Child standard, existing ethical rules re conflict resolution:\

2. Emanuel Tucsa (Osgoode): “Partisanship and the Client Perjury Trilemma”

Lawyer partisanship = alignment of a lawyer with a cause or person — “taking a side.”
The “objective partisan assumption” is that lawyers can make independent ethical evaluations of client behaviour, while also remaining loyal to clients partisan
Cognitive biases toward optimism, confirmation of existing beliefs make it much more difficult for lawyers to neutrally assess the behaviour of their own clients
The perjury trilemma: lawyers have duties to (1) be competent, (2) preserve client confidences, and (3) be honest in court. It can be IMPOSSIBLE to honour all three simultaneously, e.g. when the client wants to give false testimony.
Our response to the trilemma should be informed by an understanding of lawyers’ cognition patterns qua humans

3. Jennifer Leitch (Osgoode): “Taking Self-Represented Litigants Seriously: The Collective Responsibility of the Legal Profession”

The access to justice conversation is among academics and regulators; it is not yet a live conversation among real lawyers
Few people in this room (filled with relatively well-heeled professionals) would be able to afford a lawyer representing them in litigation.
If #A2J is a crisis, then we must start treating it like a crisis. What is the profession’s collective ethical responsibility vis-a-vis access to justice?
The lawyer’s right to make a living cannot trump the rights of ordinary people to access justice
Here is the Canadian Lawyer survey, (referred to by Jennifer Leitch) showing rising legal fees and profitability of family law: https://t.co/V9nvz6Ipzo?amp=1
Pro bono and legal aid, the two old standby responses to #A2J, are inadequate and we need to consider more radical solutions
Lawyers protest that letting non-lawyers do legal work would erode quality. However the medical context shows the capacity of multiple professionals, with different skills and pay-grades, to operate ethically:
Capping legal fees should “not be outside the realm of possibility”
We need to consider different ways to make legal aid as universal and comprehensive as health care in Canada
Law students have extremely high expectations re their future earnings, most in the class she teaches would not accept even a guaranteed salary of $150k / year

4. Mahnam Malamiry (Osgoode): “The Embedded General Counsel: Ethics and Independence in Toronto Mining Companies”

Mining companies work internationally, engage in ethically contentious behaviours. How do General Counsel lawyers within these corporations reconcile business pressures with legal ethics?
Rule of Professional Conduct 3.2-8 requires corporate lawyers to refuse illegal client instructions, and ultimately withdraw (quit job) in the face of persistently illegal/unethical instructions. Can they actually do so?
Malamiry interviewed general counsel lawyers in Cdn mining companies, re whether and how they can act ethically resisting business pressures. They described the pressure to become a profit centre, rather than just a cost centre, within the corporation
Lawyers within mining companies described isolation of being the only lawyer, as opposed to being in community of other lawyers (in a law firm). This makes legal ethics tougher to hold on to
Mining company General Counsel are sometimes women, the CEOs are almost always men. There are gender dynamics in the effort to assert legal ethics against business imperatives
Mining company general counsel told Mahnam Malamiry about ethical challenges of responding to corporate demand for “loophole lawyering”
Business ideology consistently DOMINATES legal ethics, and dominates the ideology of law, within the operations of Toronto mining companies

5. Trevor Farrow (Osgoode) “Justice Research: Next Steps”

Justice is NOT featuring prominently in the public discussion in Canada, including in the election debate
The Cost of Justice project, developed by Trevor Farrow, to measure the financial impact of civil justice and lack thereof
Investing in Justice: the new CFCJ report showing the return on investment from legal aid, justice system improvements. Overall argument: investing $1 in justice yields $1 + x in the long run: https://t.co/AnHYMyJ0bt?amp=1
“Measuring the Impact of Legal Service Interventions” — a longitudinal study, following clients, to track the effect of justice-system interventions. This is the next project for the CFCJ.
Return on investment arguments may eventually be fine-grained and precise enough to justify spending government money on civil justice INSTEAD of spending it on something else. We’re not there yet

6. Pooja Parmar (Victoria): “The West Coast is the Best Coast: Legal Ethics at UVic”

The Victoria Law course in Legal Ethics & Professionalism Course reflects the values of the institution. https://uvic.ca/law/assets/docs/pcisspring2020/202001-360-legal-ethics-parmar.pdf
A law school course graded on a pass/fail basis, like Legal Ethics at Vic. Law,, must grapple with risk that students won’t take it seriously
100%-final-exam courses in law school are seriously problematic. They deprive students of any meaningful feedback
The Victoria Law Legal Ethics course involves ample student written work and presentations. This produces spontaneous opportunities to teach ethical points re professionalism and civility
Some law students think a bad mark in legal ethics means you are unethical. In fact, we must explain that this usually just means you have not learned and performed well in the course

7. Paul Maharg (Osgoode): “Simulated Client: A Portrait of the Ethics Tutor as Outsider”

Simulated client method = trained actor plays role of client, and closely observes and evaluates the law student who is interviewing them. This focuses law students on client experience
Simulated Client method developed to assess law students’ ability to practice competently and ethically, especially in client interviewing
The Simulated Client method was borrowed from medical education. Formative and summative evaluation can be delivered, interviewing skills evaluated in a MUCH more reliable and valid way than old fashion law-school teaching
Client interviewing & counselling are essential skills for ALL lawyers. Neither GPA nor LSAT predicts performance on this key skill. However performance in Simulated Client exercises DO predict this
Simulated clients, who are lay people, are DISRUPTIVE, demonstrating the “cognitive poverty of conventional law school assessment. They become co-producers, and co-assessors of legal knowledge, breaking up lawyers’ monopoly in law school

8. Heidi Matthews & Ian Stedman (Osgoode): “Student Podcasting in Ethical Lawyering”

This session was recorded live as a podcast, it will be broadcast on https://www.stitcher.com/podcast/hmod-heidi-matthews-on-demand
Osgoode Hall 1L students prepare a 15 minute podcast about a legal ethics question
They responded to this podcast assignment with surprisingly LITTLE kvetching, impressive creativity and technical skills
Many 1L students reluctant to speak in front of peers. Podcast assignment makes it easier for the shy to contribute — even if they know that other students will hear them
Unlike writing, podcasting in pairs lets students practice constructive adversarialism. Many students used better English when they were podcasting than they did when writing
In 2019, law students must be learn to engage and communicate effectively in new, interactive media such as podcasting:

9. Leslie Walden (Ottawa): “Incorporating Government Lawyers into Legal Ethics Teaching”

15-25% of Canadian lawyers work in the public sector: Leslie Walden
Government lawyers are perhaps the most tightly regulated lawyers in Canada. Subject to multiple sources of law, ethics, employment expectations
Many Ottawa Common Law JD students feel they need to take an upper year ethics elective just to pass the Bar Exam (in addition to the mandatory ethics course)
Public sector lawyers must wear many hats, involving multiple — sometimes competing — ethical obligations. Law students should know this, should not assume that all law practice is private practice

10. Brooke Mackenzie (U. Toronto): “Regulation of Lawyer Advertising in Light of LSO Jurisprudence”

Rampant concerns in Ontario re “referral mills” and misleading flat fee advertising, and fake awards being advertised by lawyers. This led to Law Society rule reforms, subsequent set of disciplinary decisions
Raft of recent cases of lawyers misleading website visitors, suggesting falsely that they have huge law firms and undefeated record of wins
Claims of qualitative superiority are RAMPANT in Canadian legal services market. Mackenzie argues that Law Society of Ontario discipline is selective re this. It may be biased against small firms.
The Law Society should help lawyers comply with advertising rules — perhaps by checking ads before they run — instead of just disciplining them afterwards.

11. Noel Semple (Windsor): “Regulation of Time-based Legal Fees”

I argued that regulation of time-based legal fees in Canada is much too ambiguous. For more, see my three previous Slaw columns on the topic. I’m working on the article version.

12. Richard Devlin (Dalhousie): “Disciplining Judges: Contemporary Controversies and Challenges”

Devlin’s talk built on his pioneering scholarship about the regulation of judges. See his important 2016 book, authored with Adam Dodek: https://www.e-elgar.com/shop/regulating-judges
His new book will identify the most important controversies and challenges in judicial regulation worldwide.
The question is not just “who guards the guardians,” but also HOW?
Designing a regulatory regime for judges is an act of statecraft, given the important and complex role they play in modern democracies
In civilian jurisdictions where judges are part of the civil service, the promotion and assignment process is an effective form of judicial discipline. Not so in common law countries given judicial independence from government
To what extent can we regulate judges informally, through the “quiet word in the ear” or peer pressure?
There is great diversity of regulatory approaches to judges: many jurisdictions (including, arguably, Canada) have no clear binding rules enforceable through discipline
Judges can often escape all discipline by retiring. Should they be allowed to “go quietly into the night” no matter how badly they behaved?

13. Allan Hutchinson (Osgoode): “Old Roles and New Roles: David Wilkins and Legal Ethics”

Legal ethicists continue to “bleach out” professionalism and diversity, argues. Hutchison.
Professionalism is a facade, covering up privilege of white legal establishment.
Here is the David Wilkins piece “Identities and Roles: Race, Recognition, and Professional Responsibility” which is the jumping-off point for Hutchison’s talk: https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3028&context=mlr
While Wilkins was talking about how black lawyers can work within system of white privilege, Allan Hutchison wants to scrutinize behaviour of white / privileged lawyers
Any approach to legal ethics that creates contradiction between personal integrity and professionalism is unsustainable
The ideology of neutrality and detachment from personal values is beaten into law students, rendering them all the same — no matter how diverse they were when they started law school
Neutrality and detachment are privileges of the powerful
The standard account tells lawyers that they are never responsible for the values or goals of those they represent. This is wrong, especially for privileged insiders within the legal profession

14. KEYNOTE Address: PROF. REBECCA ROIPHE : “Prosecutorial Independence During the Trump Administration.”

The rule of law requires neutral mechanisms to hold powerful people to account. That in turn necessitates prosecutorial independence
Comparing SNC-Lavalin and the Trump administration, Canada seems to have a more robust entrenchment of prosecutorial independence.
Prosecutorial independence is in tension, and must be balanced with, the value of accountability for prosecutors.
“Lock her up” : Trump has repeatedly called for prosecutions of Hilary Clinton. This has been major test of prosecutorial independence principle in USA
Trump’s rhetorical attacks on Mueller Inquiry may have undermined Mueller’s ability to reach a conclusion about obstruction of justice. They arguably forced Mueller to be cautious, in order to defend the Justice Department
Rhetorical attacks on prosecutors cast doubt on rule of law, may lead to soft-peddling prosecutions of well-connected criminals
Some argue that the President is the chief executive, and prosecution is an executive function, therefore the President logically can control it. Trump has adopted this view, e.g. with references to “my Department of Justice”
the history of prosecutorial independence, and relationship of Attorneys-general to Presidents, is complex. However, Roiphe argues that there has been a clear tradition, until Trump, of AGs acting independently in individual cases
In the 18^th century, the Attorney-General position was part-time, greatly underfunded. Reflected weakness of Federal govt in 18th century, widespread hostility to Fed prosecution.
The “Saturday Night Massacre,” when President Nixon sought to secure an Attorney – General who would do is bidding, was an important milestone in relationship between President and law-enforcement in USA
Nixon knew that what he was doing was wrong. Trump does’t, argues Roiphe. He actually believes law is something he should be a able to control to accomplish his goals.
After Watergate, Americans CONSIDERED creating Canadian-stye independent prosecution system. INSTEAD, they chose to TRUST LEGAL ETHICS — instal sense of ethics & professionalism in each lawyer, to resist illegal instructions
Having good lawyers in positions of power was the post-Watergate plan to make sure it wouldn’t happen again. It is too soon to say whether that will work to constrain Trump
Bill Barr did the right thing, by acting to save the Justice Department prosecution function from Presidential influence
BUT Barr has also eroded public trust in the Dept of Justice, by (1) releasing a partisan redaction of the Mueller report, including his opinion that Trump hadn’t obstructed justice. (2) suggesting corruption in FBI probe
Layers in Dept of Justice are meant to protect reality & perception of prosecutorial independence. Even though Attorney-General is a partisan appointee, “line” prosecutors will not act as such
The Ukraine scandal has done further damage to the Dept of Justice, politicizing it further, because Trump told the Ukrainians to “get in touch with my AG Bill Barr”

15. Canadian Association of Legal Ethics Annual General Meeting

At the business meeting for CALE, there was a conversation about the regulation of judges in Canada. The Ethical Principles for Judges are being revised by the Canadian Judicial Council. CALE has contributed to this process. One of the things CALE has emphasized in its submissions is that Canada should have a binding code of conduct for judges, not just advisory principles. CALE’s most recent submission to the CJC Review can be found here: https://ethicsincanada.files.wordpress.com/2019/06/cale-letter-to-cjc-june-4-2019.pdf

Panel: “(Un)Covering Law’s #MeToo Problem: the Regulators’ Role”

16. Beth Aspinall, Equity Ombudsperson Alberta Law Society

Self-reporting of harassment tends to under-report it, because many things that legally qualify as harassment are not understood by the victim as such
74% of students + new lawyers who experienced discrim/harassment felt resources to help them were UNAVAILABLE. But 82% of recruiters, principals and mentors felt these races were AVAILABLE
Pervasive failure of lawyers & firms to take action in response to complaints of discrimination & harassment
Beth Aspinall told #CALE2019 about survey of Alberta articling students re discrim & harassment. Press account here; Full report here.
A “Respectful Workplace Policy” was drafted by the Law Soc. Of Alberta as part of effort to reduce harassment and discrimination in law firms:

17. Cara O-Hagan, Executive Director, Policy, Law Society of Ontario

20% of legal industry respondents to a Law Society of Ontario survey reported having faced unwelcome comments about race, gender, or other prohibited sound of discrimination
LSO conducted Survey re harassment & discrimination experienced by Ontario articling students : see press account and full report results
Although the Statement of Principles has been revoked, the LSO is still working to prevent and respond to discrimination and harassment. Summary here
Those experiencing harassment & discrimination are reluctant to come forward or complain. The Discrimination & Harassment Counsel is part of the Law Society’s effort to make it easier.
The persistent shortage of articling positions in Ontario creates a power imbalance that fosters discrimination & harassment. Students feel they must put up with “all sorts of nastiness” in order to become lawyers

18. Elaine Cumming, Professional Responsibility Counsel Nova Scotia Barristers’ Society

The public interest mandate of law societies (& legal regulators generally) has always focused on protecting clients. Now we are realizing we must also protect law firm employees, especially junior ones, from harassment & discrimination.
Those who complain about harassment/discrim by powerful senior partners face serious REPUTATIONAL damage, especially in smaller communities.
A “postcard campaign” by the Nova Scotia Barristers’ Society invited lawyers to tell their stories of gender-based slights, sexual harassment, discrimination and assault. The results were troubling, reports
Bystander training, practical resources for interventions, equity portal are among other NSBS interventions to combat harassment/discrimination in law firms.
The responses of medical regulators to sexual misconduct within that profession are potentially instructive for legal services regulators

19. Basil Alexander (New Brunswick): “Difficult Choices in the SNC-Lavalin Mess: How Different Perspectives and Experiences Impact Perceived Correctness and Potential Consequences”

The “Trudeau II” report from Mario Dion: still the most important source re the SNC-Lavalin affair: available here
A wide range of “perspectives” and “lenses” are relevant to the SNC-Lavalin Affair
SNC-Lavalin is, among other things, a story about using litigation to secure the accountability of public officials (e.g. the Prime Minister’s Office). It is also a story about the limitations of documentation in the effort to do so.
Re the Wilson-Raybould recording of Michael Wernick, Basil Alexander considers it ok in the circumstances. Advantage of recording as evidence is that it picks up tone and nuance, especially when the recorded party is unaware of the recording.
However, the secret recording of Wernick, practically, made it impossible for Wilson-Raybould to continue as Attorney-General given the evident breakdown of trust
The Model Code of Professional Conduct 7.2-3 forbids lawyers to secretly record conversations only with CLIENTS or with other lawyers. Key questions: (1) was Wernick a client of Wilson-Raybould?
Exceptions have developed, in American context, to the prohibition on secret lawyer recordings of conversations. The SNC-Lavalin affair and secret recording should cause us to reconsider the issue in Canada
If Wilson-Raybould were to be disciplined for secret recording of Wernick, it should at most be a “slap on the wrist,” given the context and issue

20. Andrew Bernstein (Torys LLP): “Arbitrary Measures: What Does Loyalty to the Crown Mean for its outside Counsel?”

Are governments over-reaching when they demand a duty of loyalty from their outside counsel?
Government’s economic leverage, and the prestige arising from some govt work, has let Cdn Govt insert provisions in their retainer contracts with lawyers forbidding those lawyers from representing people — often pro bono– against govt
Are governments over-reaching when they demand a duty of loyalty from their outside counsel?
Government’s economic leverage, and the prestige arising from some govt work, has let Cdn Govt insert provisions in their retainer contracts with lawyers forbidding those lawyers from representing people — often pro bono– against govt
Prior to the R v. Neil decision we hadn’t turned our minds to the reality of large firms, and to whether it is unethical for ANY lawyer within a firm to act against a client represented by ANY other lawyer in that firm
The Canadian bar reacted “with more umbrage than usual” to the Neil “bright line rule,” forbidding them to accept clients opposed to any client of their firm anywhere else in the country. Being forced to turn down paying work is “permanently scary”
Prior to 2016, the govt of Canada forbade all its law firms, including outside counsel, to ever challenge the constitutionality of any fed statute or regulation
After 2016, it got worse. Those who have done any work for the Feds are now forbidden to engage in any public criticism of the conduct of the federal government.
Govt position is inconsistent with R. v. Neil: “governments generally accept that private practitioners who do their … work will act against them in unrelated matters, and a contrary position in a particular case may… be seen as tactical”
Govt demand for permanent loyalty from its lawyers suppresses public interest litigation by “icing” challenges. Ability to seek discretionary waiver is no solution, as it requires disclosing future litigation against the Crown:

21. Andrew Flavelle Martin (Dalhousie): “Folk Hero or Legal Pariah? The Legal Ethics of Edgar Schmidt and Schmidt v Canada (Attorney General)”

Dept of Justice Act requires Min of Justice to inform House if a govt bill is “inconsistent” with Charter. What does inconsistent mean? DoJ pre-2015 interpretation: only statutes with no credible argument, <5% chance of success, fail
Edgar Schmidt a lawyer for the Department of Justice, took the view that reports should be made regarding a much broader range of potentially unconstitutional legislation.
Ethically, Schmidt was a lawyer whose client rejected his advice. The “noisy withdrawal” he engaged in is not allowed under Cdn public legal ethics rules. His conduct was also not allowed under the letter of whistleblowing legislation
However Schmidt was not only a lawyer and public servant, but also a Delegate of the Attorney-General. As such, he may benefit from special exceptions to confidentiality
Schmidt behaviour might also be justifiable as good faith civil disobedience in the public interest, even if did break his ethical obligations as a lawyer
Whether Schmidt should be disciplined — even if he broke the rules — is complex question. Andrew Martin is conflicted, but believes he should probably be disciplined