Dodek, A M --- "Canadian Legal Ethics: Ready for the Twenty-first Century at Last" [2008] LegEdDig 20; (2008) 16(2) Legal Education Digest 19

• Canadian legal ethics: ready for the twenty-first century at last

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Canadian legal ethics: ready for the twenty-first century at last

A M Dodek

46 Osgoode H Law J, 2008, pp 1–49

Until recently, the Canadian legal academy was not particularly interested in legal ethics. Hutchinson attributes this to the lack of a defining Canadian cultural moment like Watergate ‘in which lawyers were placed under national scrutiny and obliged to reconsider the legitimacy of their professional practices and norms of conduct.’ While Hutchinson is correct that there has been no ‘lawyergate’ in Canada to capture the public imagination, the last few years have seen numerous ethical scandals that, cumulatively, seemed capable of exerting some pressure on the legal profession.

For Canadian legal ethics it has been an eventful and challenging decade. The twenty-first century began with the trial of Ken Murray, the lawyer originally retained to defend Canada’s notorious murderer, Paul Bernardo. Murray was acquitted, barely, of obstruction of justice in connection with the infamous Bernardo/Homolka videotapes. The Law Society of Upper Canada (LSUC) began a disciplinary investigation into Murray’s conduct, but abandoned it in favour of enacting a rule of professional conduct on the issue of lawyers’ duties respecting physical evidence of a crime. The Murray case thus ended in three negatives: no conviction against Murray, no disciplinary action by the LSUC, and no action by the LSUC to address the issue.

The next big ethical scandal involved law students, rather than lawyers. In 2001, thirty students at the University of Toronto Law School (‘U of T’ or ‘Toronto’) were caught up in allegations of misrepresenting their grades to prospective summer employers, and twenty-four received sanctions ranging from reprimands to one-year suspensions. The U of T ‘fake grades scandal’ also became an international cause célèbre in academic freedom circles because of allegations against a U of T law professor. As might be expected, one of the students sought judicial review and succeeded in having the Dean’s decision against her quashed on jurisdictional grounds. Three years later, another cheating scandal erupted in Toronto, this time at the LSUC’s Bar Admission Course. However, while the U of T ‘fake grades scandal’ dragged on for over a year, the Bar Admission Course cheating scandal ended abruptly after a few weeks. When the LSUC made an allegedly secret decision to abandon the investigation, the scandal continued to fester.

Lawyers’ conduct in the courtroom and in the bedroom dominated ethical discussions at the beginning of this century. Midway through the decade, the CBA embarked on another revision to its Code of Conduct, which had not been overhauled since 1987. The revised CBA Code, based on amendments in 2004 and 2006, is notable mostly for what it did not address, rather than for any ethical boldness. Precipitated by the conduct of counsel in several cases, Ontario’s Advocate’s Society formed a Civility Committee, which produced a Code of Civility that the CBA included as an appendix in its revised Code.

As class action lawsuits began proliferating across the country, the role of lawyers came under scrutiny, especially with regard to fees. Along these lines, concerns about lawyers taking advantage of vulnerable clients led the CBA, the Law Society of Yukon, and the LSUC to each establish guidelines for lawyers acting in Aboriginal residential school abuse cases.

In the courts, the Supreme Court of Canada continued where it left off in Martin v. Gray (1990), issuing two decisions, Neil (2002) and Strother (2007), which helped keep conflict of interest at the top of the legal profession’s ethical priority list. In a leading case, the Ontario Court of Appeal held that the Ontario Securities Commission (OSC) could regulate the conduct of lawyers appearing before it. The Supreme Court held that law societies do not have a general duty of care to persons who are defrauded by their lawyers, but also that law societies will not be immunised from liability by ignoring their statutory responsibilities to protect the public. The Court continued its strong interest in solicitor- client privilege that began in 1999, deciding no fewer than eight cases since then, and elevating that privilege to a constitutional right. The bar across Canada, led by the Federation of Law Societies, exerted tremendous energy and resources to successfully challenge regulations that, among other things, would have required lawyers to report ‘suspicious transactions’ involving $10,000 or more in cash.

Over the decade, access to justice was increasingly recognised as an important issue by the courts, the profession, and the media. The Court recognised a doctrine of advance costs but then significantly narrowed it. It unanimously and unceremoniously rejected the constitutional claim for state funded legal counsel in civil cases, and it forced a representative plaintiff to pay costs likely totalling over one million dollars in an unsuccessful class proceeding. One bright note has been the rise of institutionalised pro bono initiatives, through Pro Bono Law Ontario, Pro Bono Law of British Columbia, and now Pro Bono Law Alberta. Over the decade, the plight of self-represented litigants has increasingly caught the attention of Canada’s judges, lawyers, policy-makers, and to some extent, the press.

The years 2006 and 2007 might well be considered the legal profession’s anni horribiles from the perspective of Canadian legal ethics. In August 2006, legal heavyweight Peter Shoniker pled guilty to money laundering and was sentenced to fifteen months of incarceration. In the spring of 2007, lawyers from Torys LLP were frequently in the news in relation to advice that they gave Conrad Black and other members of Hollinger Inc. regarding non-compete agreements at the centre of the Black trial in Chicago.

In July, lawyers were featured on the cover of Maclean’s under the headline ‘Lawyers Are Rats’ with titles above various lawyers reading, ‘I Pad My Bills,’ ‘I’m Dishonest,’ ‘I sleep with my clients,’ and ‘I take bribes’ among other things. The cover accompanied an interview with Philip Slayton, ethics columnist for Canadian Lawyer and former law professor, law dean, Bay Street lawyer, and author of Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. The sensationalism of Maclean’s succeeded in provoking a rash

of responses from the organised bar as well as from its individual members. It was likely responsible for temporarily catapulting Slayton’s anecdotal collection of lawyer malfeasance onto the bestseller list where it quietly retreated after having wrought havoc on the legal profession for two months.

The year ended with a collective sigh of relief from the legal profession with the Competition Bureau of Canada’s report on self-regulated professions, including law. While the follow-up remains uncertain, law societies will be able to make small changes in response to the Competition Bureau’s report without upsetting the apple cart.

Thus ended the Canadian legal profession’s two-year anni horribiles, with a whimper not a bang. Somewhat surprisingly, these events appear not to have had much impact on the level of public trust towards lawyers in Canada, which actually went up in 2006 and again in 2007 after a decrease for several years in a row.

Canadian legal ethics scholarship can be thought of as a series of waves, with each wave representing a particular approach to legal scholarship. Rather than supplanting each other, they co-exist and indeed draw upon one another. The first wave consists of doctrinal analysis, and is heavily focused on the codes of ethics and on law societies’ regulations.

The second wave of scholarship of Canadian legal ethics moves beyond the descriptive into the analytical and prescriptive. It comprises scholarly writings that may be analytical, critical, prescriptive, or some combination thereof.

With the rise of a new group of legal ethics scholars in Canada over the past decade, the second wave reached critical mass. These ‘New Legal Ethics Scholars’ consist both of scholars who are actively engaged in research in Canadian legal ethics as a significant component of their research agenda, as well as scholars who teach in the growing area and who may publish ethics-related articles from time to time.

These scholars were strongly influenced by comparative legal ethics, whether through doing graduate work in the United States with some of the leading figures of American legal ethics, or through research leave in the United Kingdom.

The individual members of the New Legal Ethics Scholars are focusing on different subject areas, such as criminal, corporate, clinical, and civil. They encompass and employ different schools of legal thought, including economic analysis of the law (Graham), law and society, feminist legal analysis, and sociological analysis. Some are looking at micro-issues in the profession, while others are examining macro-issues, such as the good character requirement or civility.

The University of Saskatchewan’s Marjorie Benson conducted an important study involving lawyers in Alberta and Saskatchewan, first reported in the Canadian Bar Review in 2006, and now completed in a 2008 monograph. Although Benson’s study found that ethical issues pervade the practice of negotiation, her study was unable to demarcate a clear line between ‘ethical’ and ‘best practice’ issues. This is an important point which can be expanded across the practice of law. In many cases, discipline issues arise because of the failure or refusal of a lawyer to address a practice issue which then leads the lawyer to make clear ethical missteps.

The growth of legal ethics within the academy can be attributed, in part, to larger changes within Canadian law schools. Many law schools have completed (UBC, Calgary, Osgoode, Ottawa, Western, Windsor, McGill) or are undergoing (Toronto, University of New Brunswick (UNB)) curricular reforms. In almost every case, legal ethics has been the beneficiary of such reforms. The sudden interest in opening new law faculties for the first time in decades has coincided with the establishment of a task force by the LSUC to examine licensing and accreditation issues, including the review of criteria for approving law degrees for the first time in thirty-five years. The Federation of Law Societies is undertaking a similar review of the basis for accrediting foreign law degrees as equivalent to a Canadian law degree. Both reviews will be forced to consider the question of what legal education should consist of in the twenty-first century. It is highly likely that such reviews will include recognition that legal ethics and professional responsibility should be a component of Canadian legal education in the twenty-first century.

For years, legal ethics was a victim of academic inertia. The openness to reform and the ability to implement proposed changes has assisted the rise of legal ethics within Canadian law schools. Whereas in 1999 it was reported that only four of the country’s sixteen common law schools required their students to take a course in legal ethics, now no less than nine have some mandatory legal ethics course or component in their curriculum (UBC, University of Alberta, Calgary, Manitoba, Osgoode, Toronto, Western, Dalhousie and UNB), while two others (Ottawa and Windsor) integrate ethics into aspects of the first year curriculum.

In the teaching of legal ethics, the lack of consistency is particularly noteworthy. As Sossin has explained, there are at least five ways to teach legal ethics: (1) the ‘integrated’ or ‘pervasive’ method, where there is no dedicated ethics course, but rather ethical issues are integrated throughout the curriculum’s offerings; (2) the clinical method, whereby all students have some exposure to the real- world issues of working with clients through the clinical setting; (3) the combined method, where legal ethics and professionalism is integrated into another course, such as legal research and writing or civil litigation; (4) the dedicated course method, either mandatory or elective; and (5) not at all, on the assumption that the bar admission course will contain an ethics component. What is different today, compared to even a decade ago, is that there is now some precedent for teaching legal ethics in Canada, and a diversity of approaches for doing so.

The expansion of legal ethics in the academy has been supported by and has led to the establishment of several centres and symposia. In Ontario, former Chief Justice Roy McMurtry established an Advisory Committee on Professionalism in September 2000. This initiative — composed of and targeting members of the judiciary, the Law Society, the legal academy, and the bar — has provided a strong injection of ideas and participants to the academic consideration of legal ethics in Ontario; its influence has been felt in other provinces as well. The Advisory Committee’s first priority was to establish a definition of professionalism which eventually resulted in a ten-page document on the ‘Elements of Professionalism.’ The most enduring and vitalising contribution of the Advisory Committee has been the establishment of an annual or semi-annual Colloquium on the Legal Profession, which rotates among Ontario’s six law schools. These colloquia have brought together leading members of the bar, the bench, and academia, and have featured papers generally of very high quality, all of which are available on the LSUC website.

The Advisory Committee also established a Task Force on advancement of the ideal of professionalism, which held a conference in 2004 on teaching professionalism. Following the conference, the Task Force created two subgroups for teaching professionalism in law schools and in the first five years of practice. The sub-group on law school teaching led by Stephen Pitel (Western) created a database in CD-ROM format containing national legal ethics syllabi, course problems, and articles used in legal ethics courses. They are now exploring moving the database to a web-based format.

Two centres for legal ethics are planned. The Legal Ethics Curriculum Network is establishing a Virtual Centre for Legal Ethics & Professional Responsibility to connect those working in the field from across the country. The Virtual Centre intends to work on the creation and dissemination of teaching materials and to hold meetings and conferences on the subject. In January 2008, the University of Toronto launched the Centre for Professionalism, Ethics, and Public Service (PEPS) under the directorship of Lorne Sossin. The goal of PEPS is to broaden and deepen our understanding of professionalism, ethics, and public service, and the relationship between them.

In this Part, I take stock of where Canadian legal ethics is currently situated and present some issues to pursue as the scholarship moves forward, in part addressing some of the gaps between those accounts as well as the issue of the existence of such gaps.

First, there is a continued need to expand and revise the work of the first wave of Canadian legal ethics, the treatises, and other works that provide doctrinal description and analysis. First wave materials provide the most frequently consulted sources for practitioners, students, and scholars interested in Canadian legal ethics, and offer important source materials for those researching and writing in the area. Second, there is a pressing need to expand the critical work begun by the New Legal Ethics Scholars into previously unexplored terrain. If the existing work in legal ethics in Canada could be seen as a map, we would have a much distorted picture of the ethical world; it would be distorted both in the sense of the ethical issues that lawyers face, as well as the ethical challenges for the profession and the legal system.

Codes of conduct are similarly distorted. As Harry Arthurs and others have forcefully demonstrated they contain many provisions that should be considered purely aspirational and have virtually no regulatory impact: competency, lawyers’ duty to the administration of justice, and civility, among others. On the other hand, they are largely silent when it comes to some of the most important and pressing ethical issues of the new century: lawyers’ duties respecting the physical evidence of crime, the challenges of corporate counsel in the wake of numerous corporate scandals, and lawyers’ responsibilities regarding access to justice.

Continuing with macro-ethical issues, the leading ethical challenge for the profession and for the legal system is access to justice. Until recently, the access to justice ‘crisis’ had succeeded in flying below the public radar. It was one of the worst kept secrets among lawyers that ‘the system’ had, for the most part, priced all but the very poor (in the case of legal-aid-qualifying criminal defendants) and the relatively wealthy (individuals and companies) out of the market for justice in many provinces. While the crisis in access to justice has received increased mainstream media attention, it has yet to register on the public radar as a political issue. The problem is that middle class Canadians, with whom political power arguably resides, do not experience the law the way that they do health care. It is only in the rare instances when ordinary Canadians go to court or are named in a lawsuit that they get a rude awakening. Ethical inquiries into the access to justice crisis would involve attempting to determine responsibility for the rising costs of both civil and criminal litigation. Ethical inquiries into access to justice issues would also scrutinise whether the profession is asking the right questions.

Access to justice will be the ethical issue for our generation because it has reached the point where it challenges the fundamental premise of our profession as existing in the public interest. The access to justice crisis exposes the fundamental gap between the promise of the legal profession and its delivery. When access to a lawyer is out of reach to a large segment of the public, it becomes harder to justify that self-regulation is ‘in the public interest.’

Along these lines, the second area of prospective inquiry involves what might be considered the grundnorm of the Canadian legal profession: self-regulation. Much of the existing case for self- regulation of the legal profession is built on assumptions about the profession that have been increasingly called into question over the past few decades. As some of these assumptions are weakened or discredited, and as conceptions of the lawyer’s role change, articulating new bases for self-regulation becomes necessary.

A third important collective ethical issue is diversity, broadly conceived. Much has been accomplished — women and racialised minorities are now members of law schools and bar associations generally proportionate to their numbers in the general population — but significant challenges remain. While there is less overt discrimination, in many cases the situs of discrimination have simply moved. In the case of women in the legal profession, discrimination has been transferred from entry to law schools and law firms to treatment and retention in the profession. The link between gender and other grounds for discrimination and legal ethics is overt, and it is now explicitly recognised in ethical codes. The issue of diversity within the profession is wide and deep, with serious ethical ramifications for the profession and the legal system. As with access to justice, it goes to the heart of the legitimacy of the legal profession and the legal system.

A final macro-ethical challenge that also has micro-ethical implications is the impact of globalisation on the legal profession and the practice of law. We have already seen how lawyer mobility has made conflicts of interest the top ethical priority for the profession over the past decade. Issues such as conflicts, outsourcing legal work, dealing with repressive foreign governments, and the ethical jurisdiction over lawyers’ conduct abroad will take on increased importance in the future.

Moving from macro-ethical issues to micro-ones, we need to take seriously Allan Hutchinson’s point about lawyering in a fragmented society. Neither the legal profession nor the clientele that it serves is monolithic. More work needs to be done to analyse the specific issues that lawyers face in different practice contexts: government lawyers, Crown prosecutors, corporate lawyers (both in-house and external counsel), family lawyers, immigration lawyers, and others. Canadian legal ethics needs to examine whether issues such as confidentiality and conflicts of interest are really rules of general application across practice areas or whether a more contextual application is in order.

The subfield of judicial ethics is even more barren than that of legal ethics in Canada, with minimal first or second wave materials. The scholarly treatment of the rest of the actors in the legal system diminishes from there.

Class actions are a relatively new and still controversial phenomenon in Canada and are either an ethical minefield or goldmine, depending on one’s perspective. Regardless, class actions are an under-developed area of legal ethics scholarship. Similarly, there is much ethical exploration to be done about contingency fees and self-represented litigants, to name just a few issues.

While the legal profession and legal scholars have become more aware of diversity, we have not yet begun to grapple with issues that we face as a profession in an ageing society, both in terms of issues that ageing lawyers will face as well as issues that lawyers face in dealing with older clients.

These include issues of competency (to practice law in the case of lawyers and to give instructions in the case of clients), and cognitive and physical disability.

Finally, on the issue of method, there is a dearth of empirical, interdisciplinary, and comparative research on the legal profession in Canada. Similarly, interdisciplinary approaches are rarely brought to bear on legal ethics. On comparisons, the links between the Canadian legal professions and those of America and Britain are well established, and comparison of aspects of these systems to ours would provide fruitful inquiry. Elman has suggested that empirical research be undertaken to examine the correlation (if any) between teaching legal ethics and subsequent discipline problems among lawyers. Empirical research is also necessary to test some of our assumptions about the legal profession – about things that we claim to know, but remain completely matters of faith in the legal profession – such as the function of the lawyer’s duty of confidentiality and solicitor-client privilege in promoting full and frank disclosure between lawyers and clients. A research institution dedicated to studying the legal profession would be a welcome addition to Canadian legal ethics and is perhaps the most pressing item on the agenda for Canadian legal ethics in the twenty-first century.