CHAPTER 1 - THE LAWYER AS A PROFESSIONAL
General Statement
General Statement [1] Western society has traditionally restricted the term "professional" to persons engaging in three activities: law, medicine and the church.1 Present day society likely adds accounting, architecture and engineering to that list. Still other persons claim to be professionals because of their occupation. What are the elements separating those who are not recognized by society as being professional persons from those who are? [2] Roscoe Pound has enunciated a definition of a profession, and therefore of a professional, which may give direction. He stated that a profession is a group "pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood."2 Two significant elements added by this definition to the usual knowledge and skill in one's field of expertise are "a common calling" and "in the spirit of public service." It is as a member of a group of similarly trained persons that the lawyer makes legal skills available to those requiring them. It is also that the lawyer offers those skills in the spirit of serving the public through their appropriate usage. It is especially by means of this latter criterion that the professional person is differentiated from the non-professional. The emphasis is that the lawyer's offering of legal knowledge and skill in service to the public is primary to the matter of obtaining a livelihood. [3] Whether one agrees with Pound's definition or not, it is clear that both historically and presently lawyers have been and are considered by Canadian society to be professional persons. Accepting that fact at face value and borrowing from Pound, it may be postulated that "Lawyers are professional persons who are specially trained in knowledge of the law and the skill to appropriately apply it, and who as members of a group offer that knowledge and those skills in the spirit of public service to the community, usually for a reward." This suggested definition may at least partially explain why our society regards lawyers as professional persons. It is their offering, as members of a like-minded and similarly trained group of persons, of highly skilled services to the public in the spirit of public service. [4] However, at this time in our profession's history we are faced with two inescapable facts. Both must be taken into account when dealing with any up-to-date definition of what makes a lawyer, and in our context especially a Canadian lawyer, a professional person. The first is that there appears to be a sizeable segment of the legal profession that offers to the public the special knowledge and skills acquired in legal training and in experience, but it is only as a means of establishing and maintaining a comfortable lifestyle that the offering is made. This comment is based on personal observation of the intentions with which some young lawyers go out from their completion of a formal legal education process and into practices of various types. They may regard the practice of law as being a highly technical and specialized form of enterprise, but it is as a socially prestigious business undertaking (or at the least as well paying employment) that they enter into it - not as having been motivated by service to the public per se. This view is not confined to the younger bar. Justice Sopinka of the Supreme Court of Canada, addressing The Law Society of Upper Canada Bar Admission in March, 1990, is reported3 as suggesting that there is "a trend that threatens to strike at the lawyer's professionalism as the practice of law becomes more and more engulfed in a sea of commercialism." [5] Indeed, there have been spirited debates as to whether law is any longer a profession, or has become a business. One such debate reportedly4 took place in Kelowna, British Columbia, where lawyers attending a meeting of the British Columbia branch of the Canadian Bar Association expressed the two differing views: "We must confront the practical reality that we are in business and the importance, from a professional point of view, of staying in business." and"The profession of law involves service as its main aim and profit as an incidental." While the debate continues, it is here submitted that the latter view is the correct one, for the reasons appearing in this chapter, paras. [20] to [24], infra. [6] The second fact to be taken into account today when dealing with the concept of a lawyer as a professional person is this: Canadian (and other) lawyers are now guided and governed in their professional dealings with others by both codes of conduct and by law.5 This is so, no matter how learned in their art they may be, and no matter with what spirit of service they as individuals may be offering their legal knowledge and skills to the public. The fact of having self-imposed rules of professional conduct apply to lawyers does not detract from the lawyers' option to offer their legal skills to the community "in the spirit of public service." Can it be said that those rules of professional conduct and the legal and other sanctions attendant thereon make the lawyer any less than a professional person? Likely the opposite is true. The members of the legal profession have formulated standards of conduct for themselves which in their considered opinion will assist and protect society. In so doing a large step has been taken to ensure a consistency of actions which should only benefit those on whose behalf, largely, they have been formulated: the state, its justice systems and the individual members of the state's public. [7] On a more abstract note, it has been stated that the basic propositions of moral philosophy or ethics "prescribe what ought to be sought and what ought to be done."6 Three inferences may be deduced from that proposition. The first is that ethics deal with matters of conduct. The second is that ethics imply an active rôle of conduct rather than a passive one. The third is that ethics deal with the "oughtness" of conduct - a concept strongly reminiscent of certain basic principles found in the equity side of the law. It is submitted that the codes of professional legal conduct to which allusion has been made have been so framed as to satisfy the propositions and the deductions set forth. [8] The formulation of codes of conduct by a profession speaks eloquently of the responsibility felt by it toward those whom its members serve. In the case of the legal profession that responsibility has sometimes been referred to, perhaps cynically, as enlightened self-interest. A self-regulating profession which appears to be cognizant of society's needs and wants is not as likely to feel the weight of a government attuned to respond to the expressed sensitivities of its electorate. Whatever the purity of its motives, the legal profession has propounded ever more elaborate codes of professional conduct for its members which are backed by sanctions. It is suggested that that in itself is one of the badges of a profession.7 Historical Perspective [9] Our English professional legal heritage may be said to have originated at the end of the 13th century. David Lemmings indicates that the early Year Books - law reports which date from the reign of Edward I (1272-1307) - "reveal the existence of professional lawyers whose services were tendered to litigants on a regular basis. And around this time pleaders and attorneys - the two classes of lawyers practising in the royal and provincial courts - were first subjected to regulation in respect of their numbers and activities."8 [10] It was suggested in the Introduction to this work that a date at which the modern English bar could be said to have formed was about the year 1730.9 Lemmings has suggested10 that it is very probable there was a genuine rise in standards of practice among members of the "upper branch" or bar (as distinguished from the "lower branch" or attorneys/solicitors) in the early 1700s. This came about, he believes, from a weeding out of the "casual and incompetent" through the market forces of supply and demand of the day. In tracing this development Lemmings harkens back to an earlier period in English legal history. He refers to writings in 1615 of Sir John Davies, a future chief justice, in which Davies argued that the lawyer's vocation - the word is noted - placed the lawyer above the dependent rôle of wage-earner, and beyond the mere pursuit of money, for his fees were not "'duties certaine ... [which] ... grow due by contract for labour or service, but that which is given to a learned Counsellor is called honorarium ... being indeede a gift which giveth honor as well to the Takeras to the giver'." Today's contractual principles as applied to lawyer-client relationships in Canada11 have largely swept away the manner of fee payment outlined by Davies. It is instructive however to recall this earlier basis of payment as it pertained to barristers. [11] It is not intended to defend the existence of a profession which has been in some recognizable form since the 13th century in England. However, in pursuing its historicity the question arises: why have a legal profession? Remembering the description of a profession and the hallmarks that go with it12 a statement made some years ago by F.A.R. Bennion is noted:13 "Advisory services (including concomitant executive functions) on matters requiring expert intellectual knowledge and concerning the physical or mental health of an individual, or the protection or advancement of the rights or property of an individual or body corporate, are best provided by a private practitioner whose competence and integrity are vouched for by an independent body representative of such practitioners." [12] Amongst other things, Bennion was inveighing against a perceived possibility of a state-administered system of legal services being the only such services made available to individuals and corporations. It is submitted that his proposition is still an apt one if for no other reason than to provide a truly objective third party practitioner who has no hidden agenda in conflict with that of the client. It is here suggested that this includes putting aside any hidden agenda of the practitioner respecting the acquisition of personal wealth or advancement when serving the client. [13] The link between English concepts of professional legal conduct and those which have evolved in Canada is undoubtedly to be found in the United States of America. Michael Birks records14 that "[t]he steps taken to regulate the profession in America during the first half of the 18th century followed contemporary trends of thought in regard to such matters in England ...". He limits this observation by stating that there is no reason to suppose that the colonists were influenced by specific Acts of the English Parliament.15 However, concerns expressed in the American colonies respecting the conduct of especially attorneys and solicitors arose early in the life of these colonies.16 As a substantial number of legal persons there came from England it is most reasonable to suppose that their respective standards of what did and did not constitute good professional legal conduct were brought with them. Following the War of American Independence (1775-1783) these standards would have been carried north into this country. A society of lawyers became established as early as 179717in Upper Canada. With its establishment and the founding of other similar bodies came standards of conduct that were used, inter alia, to both guide and discipline their members. Integrity, Competence And Quality Of Service [14] What personal qualities have been viewed by Canadian lawyers as comprising good professional legal conduct? One jurist has indicated that in his view the qualities of honesty, integrity, trustworthiness and respect make up the necessary elements of conduct for a lawyer.18 In a Convocation address delivered at the University of Toronto in 1986, Chief Justice Dickson of the Supreme Court of Canada used the term "compassion" as a further desirable element in a lawyer's make-up. His Lordship used the term in the sense of it being "a feeling of empathy or sympathy for the hardships experienced by others - a feeling, which extends to a sense of responsibility and concern to alleviate hardships at least in some measure."19 To these qualities the Canadian Bar Association has added those of loyalty and competence.20 Not to become semantic, it is this set of qualities which may in fact be synthesized into a triplet of terms: integrity, competence and a concept called "quality of service". These three terms keep appearing singly or together in relation to the Canadian legal profession in conduct codes, cases and writings. Several Canadian provincial codes deal with them but never under a definition. One is left with the basic meanings of the words themselves, albeit within the perspective and colouring of their application to the legal profession. Thus we find that the term "integrity" perforce includes honesty and trustworthiness; the term "competence" includes skill; the term "quality of service" includes a broader estimate of competence for it goes beyond mere skill and may fairly be said to embody respect for and loyalty to others, whatever other qualities it possesses. [15] There is historical background in relation to today's requirement of integrity on the part of the Canadian lawyer. Writing of the professionalism of solicitors and attorneys in England in the 1700s Michael Birks relates, somewhat wryly:21 "With their fortunes hitched to the wheels of the Industrial Revolution, which produced a new spate of clients, the behaviour of solicitors and attorneys had to match the principles of the rising class of manufacturers and traders. Success ... could not be achieved by the tricks and niceties of special pleading which hitherto had marked the successful lawyer. To be successful he now had to acquire a reputation for integrity and straight dealing." [16] F.A.R. Bennion writes:22 "Integrity, probity or uprightness is a prized quality in almost every sphere of life, and nowhere more so than in the professions ... The professions exact a higher standard of integrity than is found in many other walks of life." [17] Bennion goes on to catalogue some items he considers give evidence of a professional's integrity: the preservation of confidentiality, the display of impartiality, the taking of full responsibility, the exhibition of competence, fairness and fearlessness.23 [18] A decided thrust toward a high degree of integrity being required of lawyers is found in an Act of Parliament passed in England in 1729.24 Entitled "'for the better Regulation of Attorneys and Solicitors'" it and its two extending Acts, states Birks,25 "did much towards promoting a higher standard of honesty and integrity among the profession at large ...". [19] As to competence, Bennion refers to it as "the giving of the hallmark" by the professional association to which a professional person belongs.26 He intimates that the public looks for such a hallmark when engaging the services of a professional person. More will be said on the matter of competence of the lawyer in succeeding chapters.27 [20] "Quality of service" is in a sense both an older and a newly minted term. It of course springs from the tradition of service that has been at the base of other professions as well as that of the legal profession. The word "quality" becomes allied with the criteria now set out in the codes of professional legal conduct as to what does - or does not - comprise competence amongst lawyers. Speaking on the word "service" a presidential address given to chartered land surveyors some years ago28 has a clear message for our profession as well: "'The finest tradition of any calling is a readiness to serve. The spirit of a great profession is the spirit of service ... It is a spirit which derives, I suggest, from an interest not in things but in people - which alone begets understanding'." [21] Bennion puts the matter in language which is more prosaic but just as direct when he states:29 "The tradition of service which leads the true professional consultant to place the interests of his client before his own, and to give of his utmost without regard to material reward, is a most precious concept." [22] Should one question the historical roots of the legal profession's dedication to this primary ideal of service to one's clients, some findings of modern legal historians are instructive. Daniel Duman writes:30 "... [B]y the middle of the 19th century, if not earlier, the members of the professions had begun to distinguish themselves from both the business and the landed classes. They had established the ideal of service as a central part of their occupational creed." [23] Professor J.H. Baker, arguably England's leading present day legal historian, goes back much further - to at least the 15th century - on this ideal of service. Writing in The Order of Serjeants At Law31 he recounts the taking of an oath by members of this branch of the legal profession. The form of the oath was settled by the late 1400s but was likely of origin in the century before: "Ye shall swear that well and truly ye shall serve the king's people as one of the serjeants at the law. And ye shall truly counsel them that ye shall be retained with, after your cunning. And ye shall not defer, tract or delay their causes willingly for covetise of money or other thing that may turn you to profit. And ye shall give attendance accordingly. As God your help, and his saints." [24] Why this ancient and continuing emphasis on service by lawyers? Beyond the beliefs of a still predominantly Christian country, is there any reason for lawyers in Canada to serve other persons to the degree suggested by both historians and law societies? One such reason has been advanced which has the ring of pragmatism. It is that because the legal profession was and is a form of monopoly, the societal scheme dictates that those within its privileged borders do their utmost for those who come to them for assistance. There are no others available - i.e., permitted - to do the same things.32 It seems fair to assume that the failure to so serve one's clients could result in the loss of the monopoly, perhaps giving rise to the state-oriented delivery of legal services envisaged by F.A.R. Bennion.33 The Lawyer's Masters [25] Perhaps to a greater extent than other professionally trained persons, the lawyer has a number of masters. They include the state, the court, the client, the profession and colleagues. Some observers would add the lawyer him/herself, with their own moral standards of practice conduct and principles. When a lawyer is dealing with the law on behalf of someone or something, there may be a collision with opposing requirements for the observance of duties to two or more of these masters. By way of simple example: in preparing argument for presentation to the court a precedent is found which is directly against the client's position. The lawyer's duty, it is said, is to do the best for the client. That could entail not revealing the precedent. It is also a duty, the lawyer is advised, to disclose to the court all items that may affect the outcome of the case. An opposing colleague's position could be benefited by a disclosure of the adverse precedent and hurt by its nondisclosure. Also, the lawyer will usually have a sense of what, according to the lawyer's personal standards, is right and fair. What to do? The Codes [26] Since at least 1920 lawyers in Canada have had the advantage of written direction in the dilemma of conflicting duties. In that year the Canadian Bar Association adopted certain Canons of Ethics.34 By way of expansion and refinement, the Association in 1974, and through revision in 1987, promulgated its widely used Code of Professional Conduct. The bar societies of some Canadian jurisdictions have adopted the 1974 or the 1987 Code, with or without their own additional professional conduct rules.35 Further, provincial and territorial governing legal bodies have adopted legislation controlling the conduct of their members. After a long history of assisting others in knowing and applying the law on their behalf, now Canadian lawyers have had codes of professional legal conduct - laws of a type - prescribed for them. In Canada today a practising lawyer's status as a professional person hinges on obedience to one or more of those codes and relevant law society legislation and rulings. [27] Prior to 1920 Canadian lawyers were not without some guidance as to what they should do in perplexing situations involving professional conduct. The advent of the Canons of Ethics in that year had been preceded by centuries of considered thought on the topic by experienced members of the profession here and elsewhere, and from both bar and bench. Some of this guidance found its way into writings, such as that of Chief Justice George Sharswood's essay on professional ethics.36 Other helpful indications on how to conduct oneself professionally in particular situations were handed down from one generation of lawyers to another through word of mouth, law society dealings in disciplinary matters, remarks from the bench and writings. However, the written Canons and the later codes and legislation have given to lawyers a direction as to the professional conduct expected of them by their peers, both generally and in some cases with particularity. A particular point concerning the written codes should be emphasized here. It is this: while the codes do not cover every fact situation which may arise in the course of the legal day, at least a suggested thrust of conduct is often discernible from their precepts for application to the matter at hand. [28] Are the codes merely exhortations to members of the legal profession to adopt certain standards of professional conduct? Or are they binding upon lawyers, so that a breach will result in sanctions being imposed? Probably both questions should be answered affirmatively. The codes do indeed urge lawyers to good (albeit minimum) standards of professional conduct; but our Canadian law societies have alluded in the codes themselves to forms of conduct, variously described as "professional misconduct", "conduct unbecoming" and the like, which by legislation carry sanctions such as reprimand, suspension or disbarment.37 Courts too discipline lawyers for breaches of codes, and tend to take into consideration such breaches when, for example, dealing with a civil claim for negligence.38 Accordingly, while framing many of the required standards of conduct as duties or as rules with guiding principles that "should" be obeyed, the practical effect is that the profession's Canadian codes appear to accomplish the imperative without in many cases prescribing the standards of conduct in that manner. The Lawyer's Professional Duties [29] In order that the matter of a lawyer's duties as a professional legal person be put in proper perspective, the obvious question must be asked: duties to whom or to what? In answer, it will be recalled that a lawyer serves several masters - the state, the court, the client, the profession, colleagues, even her/himself. One must look at all of these relationships when considering what duties the lawyer faces in any given situation. In this connection the word "duty" is often used in our Canadian codes with no indication as to the kind or scope of duty intended. Therefore, unless otherwise indicated, it will be assumed that a "duty" not otherwise delineated is to be considered as a requirement of loyalty, or of obedience, or of adherence to a system, a principle or a course of conduct, depending upon the context. The Lawyer's Professional Duties - to the state [30] When discussing a lawyer's duty to the state, the term "state" is used in its broader sense of including the entity, its systems and its people. In fact, the C.B.A. Code deals with this duty by referring to some of the state's component parts. Thus it mentions "the court", "the public", and "the administration of justice",39 rather than the state per se. It appears clear from a consideration of various parts of the C.B.A. Code that members of the public, the court and the system of the administration of justice occupy very high positions in the estimation of its framers, insofar as the duty of loyalty owed to them respectively is concerned. Indeed, in its Preface40 the Code leaves little doubt but that the highest duty of loyalty is owed to what is called "the protection of the public interest." That is an undefined term but perhaps not inaccurately may be taken to include the state and its systems, as well as its people. [31] More direct statements on the duty of loyalty to the state are found in some provincial codes, with emphasis in some being placed on the paramountcy of the duty. For example, New Brunswick's Professional Conduct Handbook states in Part A, Rule 1: "A lawyer's paramount duty is to serve the cause of justice." It would be assumed that "the cause of justice" would be as espoused and encouraged by the jurisdiction or state in which the Rule operates. [32] While not stressing the paramountcy of the duty, British Columbia's Canons Of Legal Ethics indicates:41 "1(1) A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law." [33] Some quarters have acknowledged the duty of loyalty to the state and its institutions but have made it secondary to the lawyer's duties to the client.42 The Canadian view however is a strong one. The lawyer's duty to the state and its systems is one of loyalty, and it is amongst the highest, if not the highest, duty. [34] Not as directly expressed is the lawyer's duty to the people of the state, often referred to in the codes as "the public" or "the general public". With some exceptions the codes are silent on duty to the general public but with this underlying caveat: what the lawyer does should never bring harm to that public.43 In addition, and again implied indirectly, there is the duty of showing to the public that the lawyer upholds the administration of justice.44 Other exceptions to the codes' silence respecting the general public include making oneself available to provide legal services to the public (although with a right to refuse those services),45 and looking out for the rights of unrepresented third parties.46 The Lawyer's Professional Duties - to the court [35] The lawyer is on reasonably solid ground when considering duties to the court. History plays a part in this high duty. For nearly 800 years attorneys and solicitors in England have been regarded as officers of the courts in which they served and as such subject to its direction.47 Barristers on the other hand have not been so regarded.48 In Canada the residence in the lawyer of both solicitor and barrister powers and duties results in the Canadian lawyer being considered an officer of the court49 and thereby made a partner in its process. The C.B.A. Code indicates that the lawyer's duties to the court include the duties of "candour, fairness, courtesy and respect."50 In a fairly long list of "don'ts", the C.B.A. Code advises the lawyer not to "abuse the process of the tribunal by instituting or prosecuting proceedings that ... are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring another party." The lawyer must not "knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonorable." The lawyer must not "knowingly attempt to deceive ... a tribunal or influence the course of justice by offering false evidence", and so on.51 [36] Similarly, in the British Columbia provincial code the lawyer is exhorted to maintain toward the judges of the courts a courteous and respectful attitude and insist on similar conduct on the part of the client.52 In the New Brunswick code the reason behind the duty to respect the court and to maintain proper decorum toward it at all times is stated to be "for the purpose of enhancing public confidence in the administration of justice."53The description as officer of the court binds the lawyer even more closely to the court and its system, and provides the basis for a substantial number of the conflicting claims of duties owed to the court and those owed to others. [37] It is apparent that the Canadian lawyer's various duties to the court are closely linked to an overall duty of loyalty to the system of the administration of justice. The court is the beneficiary of this possibly paramount state duty. The Lawyer's Professional Duties - to the client [38] Duties to one's client are at once fairly easily delineated and are yet more complex because of the close human interaction that takes place in the lawyer-client relationship. Most codes acknowledge, directly or indirectly, that such duties include honesty, integrity, trustworthiness, respect, loyalty, compassion and competence - synthesized into integrity, competence and quality of service. Indeed, the first two chapters of the C.B.A. Code use these same three expressions as chapter headings, and give practical illustrations of all three aspects of professional legal conduct. While perhaps variations on the theme, Chapter III of the Code deals with honesty and being candid when advising the client, while Chapters IV, V and VI stress confidentiality, impartiality and avoidance of conflict of interest respectively. Farther on in the Code indications are given as to what a client should be entitled when being represented by the lawyer as advocate. Fees are dealt with as well as withdrawal of legal services from a client. [39] Many of the provincial codes follow similar lines of thought as those found in the C.B.A. Code.54 It is of interest to note that in at least one other code it is indicated the actions of a lawyer in fulfilling duties to a client must be tempered by the lawyer's duty to the courts and the administration of justice.55 Several of the Canadian codes have particular duties set out, for example, as to what constitutes appropriate professional legal conduct in the preparation of a will.56 Mutual trust is emphasized57 as well as the avoidance of any misrepresentation with respect to the level of competence of the lawyer or the efficiency of the lawyer's services.58 [40] Due to the wide acceptance of the C.B.A. Code's standards there is some consistency of approach to standards of professional conduct in the lawyer-client relationship across Canada. This should be at once heartening and productive of caution, in that whereas the legal profession appears to be of like mind across our country, it should be careful lest it advocate a poorer approach than may be available. The Lawyer's Professional Duties - to the profession [41] The duties that a lawyer owes to the profession have similar objectives as those owed to the state and its public. The C.B.A. Code addresses the matter when it states that the lawyer should assist in maintaining the integrity of the profession and should participate in its activities.59 This includes a duty to assist in preventing the unauthorized practice of law,60 and to abstain from involvement with interests outside the profession in which the lawyer's conduct might bring the profession into disrepute.61 Especially in relation to the latter, one is led to conclude that, as in the court relationship, the lawyer is to uphold the integrity of the profession in order that the confidence of the public may be maintained therein. [42] Again, provincial codes largely mirror the C.B.A. Code approach to the profession generally. [43] Important manifestations of "the profession" are of course the law societies of the various Canadian provinces and territories. Without disregarding the authority of courts, these bodies and their functions in regulating the profession and its members are basically responsible for the life and discipline of the profession itself. They thus speak and act for it, providing the practical edge to the more abstract notion of "the legal profession".62 The Lawyer's Professional Duties - to colleagues [44] Especially the C.B.A. Code strongly addresses the duty of professional collegiality. It states that the lawyer's conduct toward other lawyers should be characterized by courtesy and good faith. This is on the basis that "Fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially" to the end of serving the public interest effectively and expeditiously.63 Sharp practice between lawyers is eschewed.64 [45] Several codes discuss the important matter of undertakings between lawyers.65 Breach of such undertakings constitutes professional misconduct in at least one code,66 while others deal with some of the specifics of undertakings. Further, several codes prohibit competition for clients amongst lawyers where there is a subsisting relationship between client and lawyer or client and firm.67 [46] It is clear that the C.B.A. Code and others have in mind the underlying concept of what was in times past referred to as gentlemanly conduct amongst lawyers,68 with two major objectives in mind. The first is the holding up to the public of the integrity of the justice system and the profession. The second is contributing to the expedition of clients' business. Thus for both altruistic and pragmatic objectives certain levels of conduct are sought. The Lawyer's Professional Duties - to oneself [47] Can one say that the lawyer indeed owes duties to him/herself when acting in a professional capacity? Along a spectrum one sees the lawyer, professionally engaged, attempting to fulfil duties to state, court, client, profession and colleagues. Can the lawyer figure personally in that spectrum? Some observers think that not only the lawyer can but should.69 They postulate that though professional, the lawyer must bring personal standards and values into any situation in which the lawyer is professionally engaged. If this is not done, the lawyer may compromise her/his own perhaps higher standards in adhering unswervingly to other standards not of the lawyer's own making, since it is under the pressure of sanctions that the latter may be being observed. Indeed, this may be a variation of the "moral schizophrenia" of which Raymond Belliotti speaks when the lawyer is endeavouring to rationalize sets of duties under which the lawyer is practising and which appear to conflict with the lawyer's own values.70 Also, to ignore a recognition of one's own standards when dealing professionally may result in a somewhat slavish adherence to the letter, rather than to the intent, of the duties placed upon the lawyer through codes of conduct and legislation. Finally, at the least one's personal values are a helpful comparative to the other values imposed in the form of duties, which latter must again be remembered to be by way of minimum standards. [48] The various duties briefly set out in the immediately foregoing paragraphs will be more extensively examined in the light of particular topics raised in various succeeding chapters. Conflicts Of Duties - How Resolved [49] There appear to be four basic steps in attempting to resolve a problem involving professional legal conduct. The first step is to ascertain whether there may be a professional duty or duties owed. The next is to determine to whom or to what the duty or duties may be owed - i.e., to what constituencies. The third is to ask whether there is in fact a conflict between or amongst the duties owed. Assuming there is a conflict, the final and critical step is to conclude - on some basis - which duty must give way to the other. [50] The majority of professional legal conduct problems appear receptive to the approach suggested above. Confidentiality toward a client versus candour to the court; loyalty to one's corporate client versus the best interests of the general public; advancing a client's position versus accommodating a colleague's missed filing date - the list is a long one, but many of the conflicts appear capable of clarification in the manner outlined. Conclusion [51] It is out of this cauldron of competing claims for the lawyer's adherence to duties imposed that the codes of professional legal conduct and concomitant legislation have evolved. For the greater part they are true to the Aristotelian precept that "The whole account of matters of conduct must be given in outline and not precisely ...".71 Nonetheless, while not having all of the answers to particular problems faced by lawyers, the codes in many instances do indicate courses of conduct which with careful thought may point the way to a resolution. A point alluded to earlier in this chapter is here reiterated and emphasized.72 While codes of conduct prescribed for lawyers do not cover every fact situation which may arise in the course of the legal day, at least a suggested thrust of conduct is often discernible from their precepts for application to the matter at hand. When used in such a manner the codes become a valuable tool to the conscientious lawyer. FOOTNOTES 1. See, e.g., Black's Law Dictionary (6th Ed.) (St. Paul, Minn.: West Publishing Company, 1990): "Profession ... The term originally contemplated only theology, law, and medicine ...". Webster's definition of a "profession" includes "... one of a limited number of occupations or vocations involving special learning and carrying a certain social prestige, esp. the learned professions: law, medicine and the church ...": Webster's Encyclopedic Dictionary Of The English Language (Canadian Edition) (New York: Lexicon Publications, Inc., 1988). 2. Roscoe Pound, The Lawyer from Antiquity to Modern Times (St. Paul, Minn.: West Publishing Co., 1953), p. 5. Contrast this definition with an earlier one: "... broadly characterized as non-manual, non-commercial occupations sharing some measure of institutional self-regulation and reliance on bookish skills or training ...": W.R. Prest, The Rise of the Barristers - A Social History of the English Bar 1590-1640 (Oxford: Clarendon Press, 1986), p. 2. In somewhat sharper fashion Daniel Duman calls the English bar "the classic English profession as measured by nearly all the criteria usually associated with professionalism: autonomy from external interference, monopoly over practice, the possession of esoteric knowledge and skills, corporate unity and a position of dominance over a clientele dependent upon professional advice.": The English and Colonial Bars in the Nineteenth Century (Beckenham, Kent: Croom Helm Ltd., 1983), Introduction. 3. The Lawyers Weekly, April 20, 1990. 4. The Lawyers Weekly, April 9, 1993. 5. All Canadian provinces and territories have adopted both a code or codes of professional legal conduct and supportive legislation. See this chapter, fn. 35, infra, for a list of those codes and major legislation. 6. Great Treasury of Western Thought, eds. Adler and Van Doren (New York and London: R.R. Bowker Co., 1977), p. 553. 7. An early (surviving) English code of conduct for the legal profession is that dating from the year 1280. It was promulgated by the City of London and carried forward the theme of "oughtness" of conduct: see Paul Brand, The Origins Of The English Legal Profession (Oxford: Blackwell Publishers, 1992), p. 122. 8. David Lemmings, Gentlemen and Barristers, subtitled The Inns of Court and the English Bar 1680-1730(Oxford: Clarendon Press, 1990), Introduction, p. 1. Prof. J.H. Baker places the first "undoubted" call or admission to the bar of a group of "countors" or advocates in the year 1309: J.H. Baker, The Order Of Serjeants At Law (London: Seldon Society Supplementary Series, 1984), p. 15. 9. Interestingly, it was not until well into the nineteenth century that solicitors became recognized as a coherent occupational group: see Richard L. Abel, The Legal Profession in England and Wales (Oxford: Basil Blackwell Ltd., 1988), p. 139. However, their roots can be traced back to the thirteenth century: see Paul Brand, The Origins Of The English Legal Profession (Oxford: Blackwell Publishers, 1992), p. 158. 10. Lemmings, op. cit., pp. 145, 150. 11. See this text Chapter 2, "The Lawyer-Client Relationship", paras. [12] and [13], infra. 12. See this chapter, fns. 1 and 2, supra. 13. In Professional Ethics (London: Charles Knight & Co. Ltd., 1969), pp. 15, 16. 14. In Gentlemen of the Law (London: Stevens and Sons Limited, 1960), p. 258. 16. Op. cit. and especially Chapter 12 thereof. 17. See W. Wesley Pue, Becoming "Ethical"; Lawyers' Professional Ethics in Early Twentieth Century Canada (1991), 20 Manitoba Law Journal 227, at p. 236. 18. Justice E.N. Hughes of the Saskatchewan Court of Queen's Bench, Seminar on Legal Ethics(Saskatchewan: Second Annual Practitioners Seminar on Criminal Law, 1976). 19. In his work, Professional Ethics (London: Charles Knight & Co. Ltd., 1969), at p. 58, F.A.R. Bennion states: "The ideal consultant is a man or woman with a liking for people and a desire to understand them. Imagination, tact and sympathy are important characteristics ... All the efficiency and competence in the world will not suffice to meet human distress if humanity and sympathy are lacking ...". 20. The Canadian Bar Association, Code of Professional Conduct, August, 1987, Preface, p. vii, hereinafter referred to as the C.B.A. Code. 21. Michael Birks, Gentlemen of the Law (London: Stevens & Sons Limited, 1960), p. 145. 22. F.A.R. Bennion, Professional Ethics (London: Charles Knight & Co. Ltd., 1969), p. 108. 26. Bennion, op. cit., p. 36 et seq. 27. See especially Chapter 2, para. [15] et seq., infra. 28. Reported by F.A.R. Bennion, op. cit., at p. 61. 30. Daniel Duman, The Judicial Bench In England 1727-1875 (London: Royal Historical Society, 1982), p. 5. 31. (London: Seldon Society Supplementary Series, 1984), especially at p. 25 et seq., 88. 32. See Baker, op. cit., p. 42. 33. See this chapter, para. [12] supra. A "Role Statement", adopted by Convocation of The Law Society of Upper Canada on October 27, 1994 is instructive in this connection. It states in part: "The Law Society of Upper Canada exists to govern the legal profession in the public interest by, ensuring that the people of Ontario are served by lawyers who meet high standards of learning, competence and professional conduct; and upholding the independence, integrity and honour of the legal profession, for the purpose of advancing the cause of justice and the rule of law." 34. The Canadian Bar Association, Fifth Annual Meeting, Ottawa, September 2, 1920. 35. C.B.A. Code, adopted by the Council of the Canadian Bar Association on August 25, 1974. This Codehas now been superseded by a revised Code adopted in August, 1987 ("C.B.A. Code"). At the time of writing the status of codes in the various provinces and territories and relevant major legislation of the various law societies was as follows: Newfoundland: 1974 C.B.A. Code still in effect. A new code for the Province is in preparation. Major legislation: Law Society Act, R.S.N. 1990, c. L-9. Prince Edward Island: 1987 C.B.A. Code now in effect, with additions. Major legislation: Legal Profession Act, S.P.E.I. 1992, c. 39. Nova Scotia: A handbook for lawyers in Nova Scotia in effect as of August 1, 1990, entitled Legal Ethics And Professional Conduct ("N.S.L.E.P.C.H."). Major legislation: Barristers and Solicitors Act, R.S.N.S. 1989, c. 30. New Brunswick: 1974 C.B.A. Code still in effect. New Brunswick also has its own Professional Conduct Handbook ("N.B.P.C.H.") prepared in 1971. Major legislation: Law Society Act, S.N.B. 1996, c. 89. Québec: Has its own Code de déontologie des avocats, pursuant to R.R.Q. 1981, c. B-1 ("Qué. C.e.a."). Major legislation: Professional Code, R.S.Q. 1977, c. C-26; An Act Respecting The Barreau Du Québec, R.S.Q. 1977, c. B-1. Ontario: Has its own Professional Conduct Handbook ("Ont. P.C.H.") adopted January 30, 1987, as amended. Major legislation: Law Society Act, R.S.O. 1990, c. L.8. Manitoba: Has its own Code of Professional Conduct ("Man. C.P.C.") adopted February 1, 1992. Major legislation: Law Society Act, R.S.M. 1987, c. L-100. Saskatchewan: Has its own Code of Professional Conduct ("Sask. C.P.C.") effective October 1, 1991. Major legislation: Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1. Alberta: Has its own Code of Professional Conduct"(Alta. C.P.C.") effective January 1, 1995. Major legislation: Legal Profession Act, R.S.A. 1980, c. L-9. British Columbia: Has its own Professional Conduct Handbook ("B.C.P.C.H.") effective May, 1993. Major legislation: Legal Profession Act, S.B.C. 1987, c. 25. Northwest Territories: 1987 C.B.A. Code in effect as of December 1, 1989, together with Rules of the Law Society of the Northwest Territories as at January, 1996. Major legislation: Legal Profession Act, R.S.N.W.T. 1988, c. L-2. Yukon: 1987 C.B.A. Code in effect as of August, 1987. Yukon also has its own Code of Professional Conduct ("Yuk. C.P.C.") and Rules. Major legislation: Legal Profession Act, S.Y.T. 1987, c. 100. Note: All references in this text are to the 1987 C.B.A. Code unless otherwise noted. While there are substantial similarities to the 1974 C.B.A. Code on which it is based, the reader is advised to be watchful for changes made in the 1987 version. The reader is also reminded that the C.B.A. Code makes itself subservient to the self- government of the respective Canadian provincial and territorial law societies: see especially the 1987 C.B.A. Code'sPreface, p. vii. 36. Professional Ethics (5th Ed.) (Philadelphia, 1970), as reprinted in part in N.B.P.C.H., Introduction, p. 4. 37. See, e.g., Ont. P.C.H., Rule 13, Commentary 7, which states in part: "Deliberate circumvention of the restrictions set out in [certain] guidelines will be considered professional misconduct on the part of those who participate in or authorize the circumvention." By s. 34 of Ontario's Law Society Act, R.S.O. 1990, c. L.8, a finding of, e.g., professional misconduct may result in disbarment, suspension, reprimand or other order considered proper in the circumstances. The law society (in Ontario, Convocation) makes the order. 38. In Enns v. Panju et al., [1978] 5 W.W.R. 244, the British Columbia Supreme Court found professional negligence (the result of "deplorable failure to advise and warn his client") on the part of a solicitor. See also Enerchem Shipmanagement Inc. v. Ship Coastal Canada and Greater Sarnia Investment Corp. et al. (1988), 83 N.R. 256 (F.C.A.), where the Court indicated that while neither (Ontario) Rules Of Professional Conduct nor their Commentaries were treated as legislative texts, they generally embodied principles laid down by courts and were treated with great respect. See further Law Society of Manitoba v. Savino (1983), 23 Man.R.(2d) 293 (C.A.), discussed in Chapter 4, paras. [4] and [19], infra, and especially the remarks of Monnin, C.J.M., at p. 300; Molson Companies Ltd. et al. v. Amstel Brewery Canada Ltd. (1988), 21 F.T.R. 96 (T.D.). 39. C.B.A. Code, c. I, Rule and Commentary 3. See also N.B.P.C.H., Part A; Professional Code, R.S.Q. 1977, c. C-26; B.C.P.C.H., c. 1, Canon 1. 40. C.B.A. Code, Preface, pp. vii and viii. 41. B.C.P.C.H., c. 1, Canon 1(1). 42. The Roscoe Pound-American Trial Lawyers Foundation has propounded this view in the past. In a public discussion draft dated June, 1980, entitled The American Lawyer's Code of Conduct, the Foundation stated: "[The Code's] basic conviction is that the lawyer's primary duty is his or her duty to each individual client that comes to that lawyer for help." (Introduction, p. iii.) 43. See, e.g., p. viii of the Preface to the C.B.A. Code which states in part: "The Code of Professional Conduct that follows is to be understood and applied in the light of its primary concern for the protection of the public interest." See also generally Qué. C.e.a., Division II, "General Duties And Responsibility To The Public". 44. C.B.A. Code, c. XIII, Rule and Commentaries. The Rule in this chapter is: "The lawyer should encourage public respect for and try to improve the administration of justice." This wider duty is amplified in Commentary 1 to the Rule which indicates that the admission to and continuance in the practice of law imply on the part of the lawyer a basic commitment to the concept of equal justice for all within an open, ordered and impartial system. It continues: "However, judicial institutions will not function effectively unless they command the respect of the public. Because of changes in human affairs and the imperfection of human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it." See also Ont. P.C.H., Foreword; Yuk. C.P.C., Preamble. Mark M. Orkin, Q.C., in his work "Legal Ethics" (Toronto: Cartwright & Sons Ltd., 1957) at p. 50, speaking of the preparation of witnesses, makes the statement: "A lawyer should never let his natural desire to win the case for his client overcome his paramount duty to serve the cause of justice." 45. C.B.A. Code, c. XIV, Rule (and Commentary 6). See also Ont. P.C.H., Rule 12; Commentary 5. 46. C.B.A. Code, c. XIX, Commentary 8. See also N.B.P.C.H., Part C, Rule 8; Ont. P.C.H., Rule 5, Commentary 14; B.C.P.C.H., Appendix 3, s. 8. 47. See, e.g., Abel-Smith and Stevens, Lawyers And The Courts (London: Heinemann Educational Books Ltd., 1967), p. 19. 48. See Michael Birks, Gentlemen of the Law (London: Stevens and Sons Limited, 1960), pp. 6, 7; 106 et seq. 49. See, e.g., N.B.P.C.H., Introduction, which also describes the lawyer as a minister of justice; Sask. C.P.C., Preface, p. v. 50. C.B.A. Code, c. IX, Commentary 1. See also N.S.L.E.P.C.H., c. 14; N.B.P.C.H., Part B; Qué. C.e.a., s. 2.06; Ont. P.C.H., Rule 10; Man. C.P.C., c. 9; Sask. C.P.C., c. IX; Alta. C.P.C., c. 10; B.C.P.C.H., c. 1, Canon 2(1); c. 8; Yuk. C.P.C., Part Three. 51. C.B.A. Code, c. IX, Commentary 2. 52. B.C.P.C.H., c. 1, Canon 2(1). 53. N.B.P.C.H., Part B, Rule 3. Other Canadian legal conduct codes similarly provide: see, e.g., C.B.A. Code, c. XIII, Commentaries 1 and 3; Ont. P.C.H., Rule 11, Commentaries 1 and 2. 54. Indeed, the 1974 or the 1987 C.B.A. Code has been adopted or used as a model for the codes in a number of provinces and territories. See this chapter, fn. 35, supra, for the present usage of the two versions. 55. N.B.P.C.H., Part C, Rule 1. This should not be surprising in view of the priority of duty to the state expressed in this code in Part A, Rule 1. 56. See N.S.L.E.P.C.H., c. 7, Rules (e), (f); N.B.P.C.H., Part C, Rule 10; Ont. P.C.H., Rule 16, Commentary 2(c); Man. C.P.C., c. 6, Rule (d); c. 19, Commentary 6; Sask. C.P.C., c. VI, Rule (c); c. XIX, Commentary 6; Alta. C.P.C., c. 1, Rule 6; Commentary 6; c. 9, Rule 9; Commentary 9.1; B.C.P.C.H., c. 7, generally; c. 12, Rule 8(c). 57. See, e.g., Ont. P.C.H., Rule 4, Commentary 1, which deals with the free flow of communication between lawyer and client and the latter's feelings of security. Qué. C.e.a., s. 3.01.03 speaks to the establishment of "mutual trust". 58. See, e.g., Yuk. C.P.C., Part One, Rule 1. 59. C.B.A. Code, c. XV, Rule. See also, e.g., N.S.L.E.P.C.H., c. 18; Qué. C.e.a., Division IV; Ont. P.C.H., Rule 13. 60. C.B.A. Code, c. XVII, Rule. See also, e.g., N.S.L.E.P.C.H., c. 19; Ont. P.C.H., Rule 19. 61. See, e.g., C.B.A. Code, c. VII, Rule; Commentary 6; c. XIX, Commentary 1; N.B.P.C.H., Part F, Rule 12; Ont. P.C.H., Rule 17; Commentary 3. 62. See especially this text, Chapter 12, "The Lawyer And The Law Society". 63. C.B.A. Code, c. XVI, Rule and Commentary 1. See also N.S.L.E.P.C.H., c. 13; N.B.P.C.H., Part D, Rule 4; Qué. C.e.a., s. 4.03.03; Ont. P.C.H., Rule 14; Commentary 1; Man. C.P.C., c. 16; Sask. C.P.C., c. XVI; Alta. C.P.C., c. 4; B.C.P.C.H., c. 1, Canon 4; c. 11; Yuk. C.P.C., Part Two. 64. C.B.A. Code, c. XVI, Commentary 4. See also Ont. P.C.H., Rule 14, Commentary 4; Man. C.P.C., c. 16, Commentary 4; Sask. C.P.C., c. XVI, Commentary 4; Alta. C.P.C., c. 4, Rule 3; Commentary 3; B.C.P.C.H., c. 1, Canon 4(3); Yuk. C.P.C., Part Two, Rule 5. 65. See, e.g., B.C.P.C.H., c. 11, Rule 7, which commences: "A lawyer must (a) not give an undertaking that cannot be fulfilled, (b) fulfil every undertaking given, and (c) scrupulously honour any trust condition once accepted." See also N.S.L.E.P.C.H., c. 13, Commentaries 13.6 -13.9; N.B.P.C.H., Part D, Rule 5; Ont. P.C.H., Rule 14, Commentary 6; Man. C.P.C., c. 16, Commentary 7; Sask. C.P.C., c. XVI, Commentary 10; Alta. C.P.C., c. 4, Rule 10; Commentary 10; Yuk. C.P.C., Part Two, Rule 3. See also this text, Chapter 9, "The Lawyer And Colleagues", para. [37] et seq., infra. 66. N.B.P.C.H., Part D, Rule 5. 67. See, e.g., Yuk. C.P.C., Part Two, Rule 7: "When a lawyer who has been on salary to a firm leaves that firm, he or she shall not attempt to take any of the firm's clients." See also C.B.A. Code, c. XVI, Commentary 11. 68. See, e.g., David Lemmings, Gentlemen and Barristers, subtitled The Inns of Court and the English Bar 1680-1730 (Oxford: Clarendon Press, 1990). 69. See B.C.P.C.H., c. 1, Canon 5, which has a particularly instructive approach in this matter. It reads in part: "To oneself . . . . . (6) All lawyers should bear in mind that they can maintain the high traditions of the profession by steadfastly adhering to the time-honoured virtues of probity, integrity, honesty and dig nity." 70. Raymond A. Belliotti, Values in the Courtroom: Two Kinds of Judicial Systems, in Westminster Institute Rev., Vol. 1, No. 3 (London, Ontario: October, 1981), p. 4. 71. The Works of Aristotle (Oxford University Press), Vol. IX, section 1104, line 2.
|