Table of Contents
INTRODUCTION ...................................................................................................................................................... 2
(JABOUR) – CONSERVATISM IN ADVERTISING/POWER OF BENCHERS ......................................................................... 2
PHILOSOPHIES ......................................................................................................................................................................... 3
WOOLLEY ON LOYAL ADVOCACY....................................................................................................................................... 3
(NEIL) – DUTY OF LOYALTY IS FIDUCIARY ......................................................................................................................... 3
(SZARFER) – AFFAIR BREACHED DUTY OF LOYALTY/ACTING IN OWN INTEREST ..................................................... 4
(MURRAY) – THE BERNARDO CASE/MINISTER OF JUSTICE V. ZEALOUS ADVOCACY ................................................. 4
LUBAN’S CRITIQUE ON LOYAL ADVOCACY ........................................................................................................................ 4
VIEWS ON INTEGRITY ............................................................................................................................................................. 5
LAWYER-CLIENT RELATIONSHIP ..................................................................................................................... 5
MARKETING IS IN S. 4.2-5..................................................................................................................................................... 5
(MERCHANT) – ADVERTISING RE: RESIDENTIAL SCHOOLS ............................................................................................. 5
(STEWART) – SELF-AGGRANDIZEMENT ............................................................................................................................. 5
MORAL NON-ACCOUNTABILITY V. TAKING IT PERSONALLY ........................................................................................... 5
DECLINING REPRESENTATION .............................................................................................................................................. 5
ACCESSIBILITY OF LEGAL SERVICES ..................................................................................................................................... 6
TRIGGERING THE RELATIONSHIP – S. 1.1-1....................................................................................................................... 6
COMPETENCE – S. 3.1-1/2 ................................................................................................................................................... 6
WITHDRAWAL FROM REPRESENTATION – 3.7-1/2/7/8 .............................................................................................. 6
(RICHEY) – INCOMPETENCE AS A PATTERN OF NEGLECT ............................................................................................... 6
(SYED) – MORE INCOMPETENCE .......................................................................................................................................... 6
(FRASER) – CULTURAL INCOMPETENCE ............................................................................................................................. 6
PERSONAL INTEREST IN MATTER – 3.4-26.1 ................................................................................................................... 6
DUTY TO PRESERVE CLIENT CONFIDENCES ................................................................................................. 6
CRITICALLY IMPORTANT........................................................................................................................................................ 6
(DESCOTEAUX) – CRIMINAL PURPOSE EXCEPTION .......................................................................................................... 7
(SMITH) – PUBLIC SAFETY EXCEPTION .............................................................................................................................. 7
(MCCLURE) – INNOCENCE AT STAKE .................................................................................................................................. 7
(GOODIS) – DISCLOSURE UNDER FOI LEGISLATION ......................................................................................................... 7
(EFA MERCHANT) – LAW SOCIETY POWERS FOR NARROW DISCLOSURE ................................................................... 7
(FLSC V. CANADA) – CONFIDENTIALITY IN NATIONAL SECURITY CONTEXT .............................................................. 8
LOYALTY AND CONFLICTS OF INTEREST ...................................................................................................... 8
(MACDONALD) – DUTIES TO FORMER CLIENTS (4-3 MAJORITY)................................................................................. 8
(NEIL) – DUTY TO CURRENT CLIENTS/BRIGHT LINE RULE ........................................................................................... 9
(STOTHER) – PRIVATE INTERESTS ABOVE CLIENT INTERESTS (5-4)........................................................................... 9
(MCKERCHER) – REINFORCING THE BRIGHT LINE RULE................................................................................................ 9
ETHICS IN ADVOCACY........................................................................................................................................ 10
ZEALOUS ADVOCATE V. OFFICER OF THE COURT ............................................................................................................ 10
PRE-TRIAL ETHICS ............................................................................................................................................................... 10
Pleadings................................................................................................................................................................................... 10
(Zellers) – Pursuing Shoplifting Claims ...................................................................................................................... 10
Discovery................................................................................................................................................................................... 10
(Grossman) – Frustrating Discovery ........................................................................................................................... 10
ETHICS AT TRIAL ................................................................................................................................................................... 11
1
Witness Preparation............................................................................................................................................................ 11
Cross-Exam .............................................................................................................................................................................. 11
Governing Authorities -- 5.1-2 ....................................................................................................................................... 11
WOOLLEY – ADVOCACY AND CIVILITY .............................................................................................................................. 11
(MULRONEY) – BREACHING AGREEMENTS AND WITHHOLDING INFORMATION ...................................................... 11
(LAARAKKER) – SCANDALOUS LETTERS TO OTHER LAWYERS..................................................................................... 11
COUNSELLING AND NEGOTIATION ............................................................................................................... 12
COUNSELLING ........................................................................................................................................................................ 12
(SUSSMAN) – COUNSELLING A CLIENT TO BREAK THE LAW......................................................................................... 12
LUBAN ARTICLE – COUNSELLING V. ADVOCACY .............................................................................................................. 12
NEGOTIATION ........................................................................................................................................................................ 12
(REGULAR, NFLD CASE) – DELIBERATE INTENT TO MISLEAD.................................................................................... 12
ETHICS IN CRIMINAL LAW ............................................................................................................................... 13
CASES ON THE ROLE OF CROWN AND DEFENCE COUNSEL ............................................................................................ 13
ETHICAL DUTIES OF CROWN COUNSEL ............................................................................................................................. 13
Full Disclosure ........................................................................................................................................................................ 13
Duty to Call All Material Witnesses .............................................................................................................................. 13
Overzealous Advocacy ........................................................................................................................................................ 13
ETHICAL DUTIES OF OFFICERS OF THE COURT ................................................................................................................ 14
ETHICAL DUTIES OF DEFENCE COUNSEL .......................................................................................................................... 14
Duty to the Client .................................................................................................................................................................. 14
Defending the Guilty Client without Misleading the Court................................................................................ 14
Custody and Control of Real Evidence ........................................................................................................................ 14
Negotiating a Guilty Plea .................................................................................................................................................. 15
CORPORATE COUNSEL ...................................................................................................................................... 15
MILTON ARTICLE – ROLES AND CONCERNS ..................................................................................................................... 15
PATON ARTICLE – ETHICS AND INTEGRITY/WHISTLEBLOWING V. CLIENT LOYALTY ............................................. 15
RHODE AND PATON ARTICLE – LEGACY OF ENRON........................................................................................................ 16
(WILDER) – ROLE OF THE SECURITIES COMMISSION ..................................................................................................... 16
(PRITCHARD) – PRIVILEGE FOR IN-HOUSE COUNSEL IS CASE BY CASE .................................................................. 17
(POTASH CORP) – PRIVILEGE ONLY ATTACHES TO WORK IN LEGAL CAPACITY............................................... 17
PATON ARTICLE – THE FUTURE OF PRIVILEGE FOR IN-HOUSE COUNSEL .................................................................. 17
GUIDE TO THE CODE .......................................................................................................................................... 17
NO PERSONAL BELIEFS ........................................................................................................................................................ 17
OFFICER OF THE COURT ....................................................................................................................................................... 17
ZEALOUS ADVOCACY............................................................................................................................................................. 17
BEING A DUPE........................................................................................................................................................................ 18
CONFIDENTIALITY ................................................................................................................................................................. 18
CONFLICT OF INTEREST ....................................................................................................................................................... 18
INTRODUCTION
(Jabour) – Conservatism in Advertising/Power of Benchers
Jabour advertised his fees and his practice areas
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(Rocket) later loosened the restrictions
Benchers have a tremendous amount of power: they are the “guardians of the proper
standards of professional and ethical conduct”
Not many restrictions in the Legal Profession Act
Philosophies
Virtue ethics – Aristotelian idea that people have virtues and vices through which they
make decisions
Utilitarianism – greatest good for the greatest number, although that benefit can be
delayed
Deontological – Kantian view that we need rules, since people are able to reason the best
way, and we must treat people as ends, not means
Postmodernism – the world is unknowable; ethics are a personal assessment
Pluralism – there are no common values; we must weigh different values in different
contexts
WOOLLEY on Loyal Advocacy
The law attempts to solve our major moral concerns so that even when we disagree, there
is a solution
To ignore the law based on a moral objection is to undermine legality all together
This is in contrast to the personal morality view that lawyers need to make
choices when their views conflict with the law
If the law permits it, but there is a moral or legal conflict, the final decision belongs to
the client
Law creates civil society, and so lawyers need to be zealous advocates when permitted by
law because it maintains our society
Any permitted action this becomes morally justified
This may still mean a lawyer takes morally dubious actions, but the lawyer’s proper route
is to work them out with the client
(Neil) – Duty of Loyalty is Fiduciary
The duty of loyalty from the time of King George IV endures today because it is integral to
the administration of justice and public confidence
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A litigant needs undivided loyalty
The duty of loyalty is intertwined with the concept of a fiduciary duty
McLachin disagreed with Binne on this in (Strother), saying that fiduciary duty
only applies to what was contracted for
(Szarfer) – Affair Breached Duty of Loyalty/Acting in Own Interest
Lawyer was working with the plaintiff on a personal injury claim, and during that
representation, learned of marital difficulties
The lawyer then had an affair with the plaintiff’s wife
Court framed this as the lawyer acting in his own interest and engaging in behaviour that
harmed the client, even if it was NOT RELATED to the case
Lawyer also misused confidential information
(Murray) – The Bernardo Case/Minister of Justice v. Zealous Advocacy
Murray was Bernardo’s lawyer, and upon client instructions, he took videotapes from
Bernardo’s home
He did not disclose them to the Crown and kept them for 17 months
He said his intent was to use them for the defence, and not bury them
He was narrowly acquitted
LUBAN’s Critique on Loyal Advocacy
Trials often turn into games
We don’t really learn the “truth,” and lawyers often do not want all of the truth on
the record
Zealous advocates do not always the best trial make when procedural tricks enter the fray
(texts on cross-exams, SLAPP suits)
People would not always help a person act immorally, so why should a lawyer?
It is not enough to act simply because the system mandates it
The problem is that he goes on to accept that the adversarial process is best
He simply suggests that morality should trump
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Views on Integrity
Woolley – avoid circumstances where personal and professional responsibilities conflict,
such as by carefully choosing clients and being able to accept the consequences when you
need to favour one over the other
Farrow – a myriad of interests are at stake, and the best approach is to move beyond the
centrality of client interests
LAWYER-CLIENT RELATIONSHIP
Marketing is in S. 4.2-5
(Merchant) – Advertising re: Residential Schools
Lawyer sent Assignments and Retainer Agreements to supervisors of these schools offering
to represent them with potential settlement figures, saying they had nothing to lose
The supervisors were angry because they never gave out their info
Calling the retainer a “simple authorization” was misleading
The notion of “losing nothing” did not account for legal costs in the retainer
Also a number of racist assumptions and disregard the potential impact
(Stewart) – Self-Aggrandizement
Lawyer appeared on TV about a former case
When dealing with the media on a former case, one cannot engage in behaviour that is
self-promoting or self-aggrandizing
Moral Non-Accountability v. Taking it Personally
Hutchinson argues that client selection is critical because one a decision is made, the
ethical die is cast and there is little turning back
Talk to the client, and take your comfort personally
Proulx and Layton suggest that a lawyer should hold a sincere belief in the morality of
representation, with little attention to public opinion and personal repugnancy
Declining Representation
Competence – 3.1-2
Dishonesty/Fraud – 3.2-7/8 (one for when client is an organization)
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Accessibility of Legal Services
Roy McMurtry, Chief Justice of Ontario, believes that legal access for society’s most
disadvantaged is getting worse, not better
Bev McLachlin has the same concerns
Does the administration of justice require that we do pro bono work?
Triggering the Relationship – s. 1.1-1
Competence – s. 3.1-1/2
Withdrawal from Representation – 3.7-1/2/7/8
Generally speaking, though, this will be difficult
A retainer would be a good idea!
(Richey) – Incompetence as a Pattern of Neglect
The case does not rule out a single act being incompetent, but this was a pattern
Failed to move to settlement or a trial, failed to advise of the reasons for not doing
so, failed to meet deadline commitments, failed to file documents in a timely
manner, failed to commence discovery in a timely manner, failed to respond to
communication, failed to have an adequate filing system
(Syed) – More Incompetence
Not enough time interviewing the client or exploring defences, opted for provincial court
without informing the client, offered a guilty plea without really examining it, was not
prepared for trial if deal fell through
(Fraser) – Cultural Incompetence
Failed to advise a black client that he could challenge jury members on bias given that the
victim was white, failed to adhere to the client’s concerns about a white jury, basically just
ran it all himself… reluctant to do anything but his perceived way to win every single case,
failure to bother with affidavits with what the Crown had, failure to consider witnesses
Personal Interest in Matter – 3.4-26.1
DUTY TO PRESERVE CLIENT CONFIDENCES
Critically Important
Jamal article – SCC has called solicitor-client confidences a matter of high importance
Ethics text – Heart of the lawyer-client relationship; crucial for the public to know that
their info is vigorously protected
6
Proulx and Layton – linchpin of the lawyer-client relationship
(Descoteaux) – Criminal Purpose Exception
Seeking advice to commit a crime, or if the communication itself is illegal
In this case, it was lying about financial state to get access to legal aid
(Smith) – Public Safety Exception
There must be a clear risk to an identifiable group/person
Likelihood that the risk will happen
Long range planning?
Method for an attack?
Prior history?
Is the prior history similar?
Is the violence increasing in severity?
Identifiable group at risk
Group of person must be ascertainable
Group may be large
It must be a risk of serious bodily harm or death
The risk must be imminent
This is very flexible, and will generally be found somehow if the prior two
are met
Not immediate; just an urgent need to prevent harm
(McClure) – Innocence at Stake
Need to prove two things on a balance of probabilities:
That the information is not available from any other source (i.e. hearsay evidence
from someone else might be fine), and
That he is otherwise unable to raise a reasonable doubt as to his guilt
(Goodis) – Disclosure under FOI Legislation
Court talks about whether disclosure is absolutely necessary to meet the ends sought by
the legislation
(EFA Merchant) – Law Society Powers for Narrow Disclosure
Law Society investigated a complaint that a lawyer disobeyed a court order and did not pay
funds into the court
7
He claims privilege over him telling the wife whether the money was paid into court
Absolutely necessary speaks about whether documents should be disclosed, and the Law
Society has the power to ask for disclosure of privileged documents
The documents form a narrow and relevant enough scope, given the reasonable
grounds, and the fact that they are necessary for the investigation
(FLSC v. Canada) – Confidentiality in National Security Context
Government passed a law requiring, among others, lawyers to obtain personal and financial
information that might be used by authorities in investigations
FLSC argued that it breached solicitor-client confidentiality
This infringes the Charter re: principles of fundamental justice
It is contrary to the public interest for the government to pass a law that nullifies
confidentiality
Interesting that confidentiality seems to trump some national security efforts
LOYALTY AND CONFLICTS OF INTEREST
(MacDonald) – Duties to Former Clients (4-3 Majority)
A lawyer with a law firm represented Mr. Martin, and of course gathered confidential
information
That lawyer moved to another law firm which represented the party opposed to
Mr. Martin
The lawyer was not involved in any way with the case, but Martin wants the firm
disqualified
There are three conflicting principles: standards integrity of the legal profession, litigant
not being deprived of choice of counsel, and allowing for reasonable mobility of lawyers
The test is to ask where a reasonably informed public would be satisfied that
confidential information was not used by answering two questions:
1. Did the lawyer actually receive confidential information about the matter at
hand?
a. This just needs a substantial relationship between the matter where the
confidential information came out and the matter at hand: we assume
the lawyer then got confidential information unless the lawyer meets
a high burden otherwise
8
2. It there a risk that it will be used to prejudice the client?
a. Need more than undertakings not to share
b. Need to take independently verifiable steps to avoid sharing
The Code speaks on this now, both law firm disqualification and acting against former
clients
(Neil) – Duty to Current Clients/Bright Line Rule
Neil and Lambert got into trouble; a law firm represented Neil, and a lawyer associated
with that law firm represented Lambert
Lazin also received confidential information on this file from another client that
went against Neil
The bright line rule says that a lawyer may not represent a client whose interests are
directly adverse to the immediate interests of another client – even if the two matters
are unrelated – unless both clients consent after receiving full disclosure, and the lawyer
reasonably believes that he can represent one without adversely affecting the other
However, the remedy seems to be an ethical, not a legal one – proceedings were
not stayed
(Stother) – Private Interests above Client Interests (5-4)
A film production company retained a firm to help it take advantage of lucrative tax breaks
The government of Canada moved to stop the tax break, and so Monarch folded
A former senior employee of the company approached a senior partner of the firm,
and suggested that they work together to try and stop this from being implemented
They were successful, made lots of money, and then the production company argued
that such work was owed to them instead
The biggest issue is that the partner continuously kept the production company in the
dark
Even though the retainer had ended, there was a sense of more fiduciary duty
than the parties contracted for
This relationship may have been permitted otherwise, but he used information from a
client to put his own personal financial interests ahead of that by directly competing
for profits, and made it seem as if NOTHING WAS WRONG
(McKercher) – Reinforcing the Bright Line Rule
Law firm represented plaintiffs in a class action against CN Rail, even though the firm had
long had CN Rail as a client
9
Law firm never told CN
Violated the duty of candour (should have gotten consent), duty of conflicting interests,
and duty of commitment
Nevertheless, the firm likely won’t be disqualified from representing the plaintiffs
No confidential information shared, and the firm dropped CN
Ethics in Advocacy
Zealous Advocate v. Officer of the Court
McMurtry (Chief Justice of Ontario) – A lawyer is not simply a hired gun; they must be
faithful both to the client and to the administration of justice
Lord Denning – a lawyer must do all he honourably can for his client; this is a conflict
often difficult to resolve
Pre-Trial Ethics
Pleadings
How does one fearlessly raise every issue without overstating the case or use pleadings
to be frivolous, vexatious, etc.?
(Zellers) – Pursuing Shoplifting Claims
Zellers had a policy of pursuing children for small shoplifting claims, even though there is
nothing that automatically holds parents liable for the torts of their children
The plaintiff had paid damages to Zellers, but she now wants to reclaim them on the basis
that Zellers never had a valid claim
The court agrees – the forbearance to sue was based on an invalid claim because Zellers
never had a claim against the mother who paid
Zellers misled her, so she gets the money back
Discovery
Clients often don’t like this, and ethically speaking, lawyers are essentially left to regulate
themselves
(Grossman) – Frustrating Discovery
The rules of civil procedure are intended to facilitate discovery, not frustrate it
Framing an affidavit in a way that claims privilege over everything and prevents
opposing counsel from making arguments against it is not appropriate
10
Need to at least provide enough information to challenge the validity of the claim
General descriptions of documents will not give away their contents; lawyers cannot
argue over what they do not know exists
Ethics at Trial
The trial is basically all about zealous advocacy v. officer of the court
Witness Preparation
Witness prep is ethically fine; witness coaching to distort evidence, act forgetful, or do
anything false or misleading is a bigger problem
Cross-Exam
The biggest issue here seems to be the acting with candour, integrity, respect, etc.
(Lyttle) – good faith basis
(AJ) – cannot be demeaning, humiliating, or overly sarcastic; also no room for
personal opinion
Governing Authorities -- 5.1-2
Woolley – Advocacy and Civility
Good manners are NOT a subject for professional regulation
It’s too broad to be useful
Lawyers can’t always “be nice” for their client, and must sometimes risk
unpopularity
Might keep lawyers from issuing proper strongly-worded criticisms
We have defamation if it goes over the line; otherwise, civility inhibits truth-finding
Civility is in the eye of the beholder
Civility is already stated adequately elsewhere without this broad catch-all
(Mulroney) – Breaching Agreements and Withholding Information
Lawyer was penalized for breaching an agreement not to seek default judgment, and for
not telling opposing counsel that this was done behind his back
(Laarakker) – Scandalous Letters to Other Lawyers
In response to a letter from a lawyer regarding something similar to the Zellers set-up, the
other lawyer sent back a very demeaning fax, and posted a similarly demeaning blog
11
He was guilty of professional misconduct
Not the lawyer’s place to pursue vigilante justice by using personal remarks
COUNSELLING AND NEGOTIATION
Counselling
Need to be frank and candid, and not simply tell clients what they want to hear
Also cannot make the decision for the client
(Sussman) – Counselling a Client to Break the Law
Lawyer advised a wife to breach the access provisions of a court order
He said he did so because he had reasons to apply for a variation order, but this is
baseless – that took seven months
Need a reasonable and honest belief of imminent risk or danger to a child, co-existing
with the requirement that there be an immediate court application to work out those
issues
Luban Article – Counselling v. Advocacy
The government seems to have gotten advice it wanted to hear by getting a legal opinion
that torture only exists when there is risk of organ failure
The opinions became discredited, but the lawyers got off without punishment
Advocates often have to stretch the law and fit it to their client’s needs, but counselors
ought not to do this
Negotiation
In general, negotiators can withhold material facts and make untruthful statements
Frequently seen as a game
Negotiation is also listed in the definition of a competent lawyer
(Regular, NFLD Case) – Deliberate Intent to Mislead
A lawyer received a letter addressing a rumour that his client, a corporation, was to be sold
The lawyer denied it even though the company that day removed the author as a
director of the corporation, and sold it a few days later
Lawyer testified that, in his opinion, the company wasn’t selling substantially all of the
assets, meaning 90% in his opinion, so his statement was fine
12
Court doesn’t buy it – unless Regular states that assumption, the author had no
reason to believe that half or more of the company would be sold
ETHICS IN CRIMINAL LAW
Cases on the Role of Crown and Defence Counsel
(Boucher) – no notion of winning or losing; minister of justice who needs to see justice
done
(Cook) – Crown still can and should be a strong advocate if the evidence supports it
(Rose) – Crown counsel are expected to be adversarial
(Stinchcombe) – although defence counsel are adversarial, they are still officers of the
court
Ethical Duties of Crown Counsel
Proulx and Layton – takes personal courage and strength to be both a strong advocate
and a minister of justice that treats the accused fairly
Full Disclosure
Undoubtedly the most important ethical obligation
(Stinchcombe/Marshall Inquiry) -- All relevant information in the Crown’s
possession must be disclosed
(Krieger) – the Law Society can hear ethical complaints about whether the lawyer
properly disclosed evidence without meddling into prosecutorial discretion
Duty to Call All Material Witnesses
(Lemay/Stinchcombe) – gets all of the facts before the jury, both favourable and opposed
to the accused
HOWEVER… now that we have (Stinchcombe) disclosure, (Cook) says that the
Crown DOES NOT have to call witnesses they don’t want to call
Overzealous Advocacy
(Boucher) first said that Crown counsel cannot use inflammatory or vindictive language
or leaving an impression that the accused ought to be found guilty
No appealing to emotion – is this still the case today?
Same goes for cross-exam (A.J.) – no sarcasm, demeaning, humiliating
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Ethical Duties of Officers of the Court
These do apply to both Crown and defence counsel
All of the cases – (Rondel) and (Giannarelli) in particular – place a premium on honesty
and integrity
(Samra) also mentions a duty not to make frivolous arguments
(Felderhof) mentions a duty of civility, mainly by personally attacking the other counsel’s
honesty or integrity
Ethical Duties of Defence Counsel
Duty to the Client
Overly partisan, including representation with admissions of guilt (albeit with serious
limitations in the Code, s. 5.1-1)
(Rondel) – fearlessly raising every issue, argument, and question, however
distasteful
Similar language in Code s. 5.1-1
Counsel failed here in the Marshall case
Defending the Guilty Client without Misleading the Court
The most important ethical principle is FORM NO PERSONAL OPINIONS
This happened in the Marshall case
The lawyer who is convinced of guilt can continue to represent subject to the restrictions
in 5.1-1 (can cite Tuckiar as well)
No advocating that another person did it, generally can’t argue that the accused
didn’t do it, no false alibies or evidence
Can still argue on procedure and evidence; just cannot mislead
Custody and Control of Real Evidence
Remember (Murray) – the Bernardo case
Counsel cannot hide evidence if it suggests illegal conduct, but this is really a legal
obligation, not an ethical one
Code does mention fraud/dishonesty, and nothing dishonest/dishonourable, but
there’s nothing right on point
14
Since defence generally don’t need to disclose, the text suggests the following model
approach:
Review it regardless of client instructions, advise the client that the lawyer
cannot conceal it if it turns out to be incriminatory, and if the evidence is in
doubt re: incriminatory status, counsel ought to call a Bencher
Negotiating a Guilty Plea
Counsel does have a responsibility to plea bargain when permitted
Often applies when there is an inevitable conviction or when the client wants to
However, if lawyers do this at the last minute in the hope of avoiding trial without
knowing all the facts, or if they pressure guilty pleas, this is unethical
Also may be unethical if the client confidentially discloses innocence
Code talks about this in s. 5.1-7
CORPORATE COUNSEL
Milton Article – Roles and Concerns
The use of in house counsel is growing, which raises some interesting questions
How do ethics apply to representing an abstract entity, when most of ethics focuses
on representing individuals?
What individuals hold power in a corporation, and when are they acting in the
entity’s best interests?
Do ethics change when the primary task is drafting, not litigation?
If lawyers are in-house, are they also business advisors, and does this water down
their role as a lawyer?
Is a corporate lawyer a gatekeeping whistleblower on illegal corporate activity, or a
zealous advocate?
Corporate lawyers often use loopholes, but to maintain public confidence, the law needs
to be more than just an instrument/rule to overcome
Paton Article – Ethics and Integrity/Whistleblowing v. Client Loyalty
In-house counsel are getting paid well today, and are getting diverse and important work
15
Ethics becomes muddled when lawyers are placed directly in the corporate sphere
Saying no based on ethics might end up meaning strained or lost employment
USA drafted the Sarbanes-Oxley Act to draft rules of professional conduct, with a
sense that lawyers are placed under similar responsibilities as executives and
accountants, and that lawyers must now protect shareholder interests in this
role
Lawyers are now asked to choose between reporting their clients/employers up
the ladder and preserving the loyalty to the client
The lawyers won the fight against noisy withdrawal, and kept that out of the legislation
Rhode and Paton Article – Legacy of Enron
Lawyers played a key role in helping Enron determine how to use SPEs, and whether they
needed to be disclosed
The in-house counsel were accused of an absence of forceful and effective
oversight
One lawyer was dumb enough to invest in one of the partnerships
Two lawyers that did have concerns were basically silenced
Corporate culture values appealing lies over inconvenient truths
The outside law firm also approved of the entire set-up, and Enron relied heavily on their
approval
Their view was that since the company approved of it and since it WASN’T
ILLEGAL, it wasn’t their role to question business judgment
Unfortunately, that ignores ethics, and asks who is the client?
A bigger problem was that the same firm agreed to “independently” review its
own work after concerns from one upper-level management figure
Also keep in mind the troubling discussion over Temple acted ethically in enforcing a
document shredding policy after becoming aware of the SEC investigation
(Wilder) – Role of the Securities Commission
Does it have the authority to discipline a lawyer?
16
They have statutory jurisdiction – any person, regardless of status as a lawyer, is
caught
Can it reprimand lawyers in their role as lawyers?
YES – the legislature chose towards that do not explicitly exclude lawyers
This role is not inconsistent with that of the Law Society – the Law Society
regulates professional conduct; the OSC regulates investor protection
(Pritchard) – Privilege for In-House Counsel is CASE BY CASE
(Potash Corp) – Privilege Only Attaches to WORK IN LEGAL CAPACITY
Paton Article – The Future of Privilege for In-House Counsel
In Europe, privilege does not apply to in-house counsel because of the employment
relationship
In one case, an independence agreement was not enough to get around this
because he occupied the position of an employee
As a result, even North American communications with European offices are at risk
According to a CBA paper, we here in Canada have only just begun to tackle this
Will this drive people away from being in-house counsel, or worse still, drive them
into hiding their correspondence, or doing it all orally?
GUIDE TO THE CODE
No Personal Beliefs
2.1-2 (should not assert a personal belief), 2.1-3 (regardless of personal opinion), 5.1-1
(notwithstanding private opinion), 5.1-1 again (restrictions if accused admits)
Officer of the Court
2.1 (minister of justice/officer of court), 2.1-1 (duty to the state), 2.1-2 (candour and
fairness), 2.1-4 (courtesy and good faith with other lawyers), 2.1-5 (honour and integrity),
2.2-1 (honour and integrity again), 2.2-2 (uphold standards of profession), 5.1-1 (candour
and fairness), 5.1-5 (courteous and civil)
Zealous Advocacy
2.1-3 (resolutely without fear of judicial disfavour or public unpopularity), 2.1-3 again
(obtain any remedy permitted), 3.2-1 (quality of service), 5.1-1 (raise fearlessly every
issue), 5.1-1 again (openly and necessarily partisan), 5.1-1 again (restrictions if accused
admits)
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Being a Dupe
2.1-2 (no misstating or flattery/pretended solicitude), 2.1-3 (undisguised opinion), 2.1-3
again (no fraud of chicanery, nothing repugnant to lawyer), 3.2-2 (honest and candid), 3.27 (dishonesty/fraud/dupe), 3.2-8 (dishonesty/fraud when client is organization), 5.1-1
(frivolous or vexatious objections), 5.1-1 again (tactics that merely delay or harass), 5.1-2
(nothing motivated by malice or solely to injure), 5.1-2 again (nothing dishonest or
dishonourable)
Confidentiality
2.1-3 (scrupulously guard), 3.3-1 (all times hold in strict confidence), 3.3-2 (need consent),
3.3-2.1 (privilege), 3.3-3 (public safety exception)
Conflict of Interest
3.4-1 (duty to avoid AND definition), 3.4-1 [6] (bright line rule for current clients), 3.4-2
(consent), 3.4-10 (acting against former clients), 3.4-11 (firm working against former client
of lawyer), 3.4-20 (law firm disqualification), Appendix D (screening procedures)
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