Different kinds of reasoning 1. Reasoning from rules – non-consequentialist / deontological Using set of rules that could spring from variety of sources Religious Legal Group norms Ex. sharing private info is wrong – even tho it might not be illegal 2. Reasoning from consequences –teleological reasoning Consider the harm caused Weighing of competing harms – pros v cons/ benefit vs harm 3. Ontological reasoning Reasoning from virtue/ character/ values Decision-making is motivated by desire to be a good person by how we define our ideals of conduct n character at may conflict – loyalty vs honesty vs respect for privacy Role Morality ethical rules / norms of the role occupied ex. unethical for lawyer to disclose secret cuz of the duty of confidentiality legal ethic involves: rules virtues consequences issue- requirement of role morality may conflict with personal morality exception – even duty of confidentiality has exceptions smith v jones - recog a future harm exception to lawyer-client confidentiality Rule of Professional conduct – 3.3-3 R v butt Accused convicted of sexual interference against 12 yr old boy Defence counsel learned accused was HIV+ Disclosed to n court commended defence counsel Sources of Regulation Case law and legislation – most significant doctrinal source of guidance Rules of professional conduct Law society disciplinary decisions Provides insight into meanings of provisions of the code of conduct Principle / norms Tanovich – Learning to Act like a Lawyer Existing problem University code is not enough: Gap btw university code of conduct vs law society code of conduct Prob No positive obligation – not requirement to do sth Cultural competence – need to have skills rep client from diverse background Current Focus – only on things that are related to campus Should have more stringent code Reason When entering law school – essentially entering law school Since almost everybody gets called to the bar – Need to create culture of professionalism More and more students are serving communities thru pro bono Separate code for law students – to give effect to the professional element of the law program Reasons against stringent code trial
of appeal exists Contemporary Legal Professions Challenges Shortage in Articling Rural lawyers Women in legal profession Nova Scotia Project – its our little secret Illustrate many women are prone to discriminating and inappropriate jokes Many women are leaving legal profession sexual harassment Sends out the msg that u r not going to become successful if remain in that culture Profession doesn’t respond well to caregivers Dissatisfaction with practise of law itself Adversarial work culture Hierarchical Not a lot of mentorship / support – women gets mommy-tracked Work hours Suggestion for retaining female talent Approach it systematically – Preferably with 3rd – do exit interviews, research on # Benchmark firm’s performance against industries Reason – high cost, time, n effort to train associates Cheaper –to keep them n develop them even if have to accommodate Addiction High-function alcoholics – alcoholics who is able to maintain professional n persona life Ch – perfectionist, overachiever Work-life balance Fitness to practise Law Society – credential committee to approve ppl to practise Most – just checking whether requirements are met Small # - need to go thru more in-dept process Reason – fitness, character Fitness – Medical condition – may put your client at risk if unrestricted Wording of question potentially be discrimination Gichru Gichuru v Law Society of BC fitness to practise Fact P – was diagnosed with major depression during law school n need to take time off Treatment – was successful But when applying for articles – answered yes to medical condition Law society – Want documents to show depression resolved As a result- articling was delayed N when had to apply – need to provide new medical documents Filed human rights complaints against law society Analysis trial
Have to go further – need to determine applicant’s credibility Convinced the sociology thesis was cheating Did not discharge onus of proof that he was not cheating Lawyer and Clients Power of Law Society Jabour Guardians of proper standard of professional and ethical conduct Intention of legislature – give bencher very broad power May prohibit any conduct – that’s contrary to public/ profession’s best int General to determine what conduct is acceptance in: Practise of law Members conduct Advertising Pre-charter Law society – Jabour Conduct unbecoming – can include prohibition of commercial advertising Can prohibit any conduct that’s contrary to public/ profession’s best interest Now - Code 4.2 Marketing activity must not be False/inaccurate / unverifiable Reasonably capable of misleading the recipient/ intended recipient Contrary to best int of public Only certain things can be put on ads Prob – direct solicitation Merchant Actually targeting individual by name – Approach them saying they might have a legal claim and u can help Concern Misleading, pressuring client Failure to disclose important information Impact on recipient Esp true in contingency fee arrangement May appear free – but be substantial cost associated Choice of Client Acceptable criteria to reject Competence - time, subject matter 3.1 Involves – adequate knowledge of practise n procedures by such principles can be effectively applied If proceeds – but don’t believe cant be competent not honest with client Conflict of interest May become witness of the case – less common Concern client wants to do illegal / unethical activity Rule UK- cab rank rule CA – balance btw Ensuring access to justice versus Personal values / circumstance – so don’t want to act for client Diff views on choice of clients 1. Moral non-accountability Task of judge to decide legal entitlement of parties Lawyer – neutral agent w/ obligation to rep client int
Information provided If ask about chance been caught If the information is out there – ok to provide If not – not competent to answer the question Negotiation General view Negotiation is all about lying Reason – if 2 parties are non-lawyers, expected they will be lying / bluffing if lawyers are subject to diff rules – discourage ppl from using them lawyers lie source actual lies statement of position – blur distinction btw statement of fact vs position fact – intends to convey truth position – made in course of advancing an argument lawyer – often quoted in media, could be statement of either but tend to be interpreted as statement of fact improving perception strength rules of professionalism – to deal w/ lying public statements – aim to reflect that its statement of position and not fact put focus of statement back on client negotiation – regulate like Alberta Code balance the duty of obligation to lawyers, public interest n need for fair process – Regulation Support Alberta Code of Conduct – 6.02(2)- lawyer must not lie to / mislead another lawyer If prevented by of confidentiality – Can refuse to answer If that is misleading – seek consent to disclosure Misleading – creating misconception thru oral, written, other comm, actions/ conduct, failure to act / silence 6.02(5) – lawyer must immediately correct resulting misapprehension subject to confidentiality If correction requires disclosure of confidential info – seek consent If refused- obliged to withdraw Inaccurate rep – not limited to misrep that be actionable in law Better for public impression of lawyer Law Society of Upper Ca v Sussman Refusal to follow court order Fact Court order Mother gets custody on weekdays n father on weekends Sussman – counselled client to breach the terms of court order respecting access Advise client to deny access to children Husband reports to law society Analysis Professional misconduct? Yes Sussman – was intend to do sth to get the order varied Court – never done anything – explanation not convincing Limited circumstances where counsel can offer advice to refuse to follow court order Obligation of lawyer n client Trust the efficacy of court system and follow court order
reputation of administration of justice – “looks bad” – courts have discretion, need to look at all factors May be required to send msg that disloyal conduct is not condoned by courts Consider: Behavior disentitling the complaining party from seeking the removal of counsel Significant prejudice to new client’s int in retaining counsel of choice Party’s ability to retain new counsel Fact that law firm accepted the conflicting retainer in gd faith Reasonably believing concurrent rep fell beyond scope of bright line Personal Relationship Issue – whether you can provide effective presentation can you give dispassionate advice? Emotion – could cloud judgment lack objectivity A judgment to decide – whether you have ability to meet the duty owed to clients Sexual relationship Duty to provide objective, disinterested advice to client Impact of relationship Hunter Lawyer Interfere with lawyer’s fiduciary obligation to client Ability to exercise independent professional judgment Ability to fulfill obligation as officer of n admin of justice Impact on ability to provide the advice objectively n independently Difficult to remain dispassionate Client Inhibit client from challenging / questioning the advice Exploitation of clients’ vulnerability – power imbalance Similar to therapist – patient relationship Approach – discuss with client @ outset of relationship – whether to continue to act on their behalf @minimum – reflect to danger associated w/ the conflict of int Suggest independent legal advice – not required if client is unsophisticated/ vulnerable - should recommend to ensure client’s consent is informed, genuine and uncoerced Any uncertainty – resolved in favour of such recommendation In some circumstance – conflict may be so profound so simply cannot continue to act Problems with Hunter ‘s penalty Light penalty Lots of disagreement abt appropriateness of penalty Relevant to consider hunter’s emotional toll? Since such a prominent lawyer – shouldn’t there be more severe punishment? Image of law society? CNR v McKercher – SCC Conflict of Int Fact CNR retained McK to act for them in 3 diff issues McK – obtained by Wallace for class action against CNR Decide to take on the case So terminated 2 of the 3 retainer agreement with CNR w/out their consent CNR - went to court to request termination of McK’s rep @trial – McK ought to be disqualified @CA – overturned Analysis Case at bar Bright line rule - Immediate int – directly adverse n legal disputes