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^ Nature Of Paper
This anthology summarizes, or excerpts from, judicial decisions, book and journal scholarship, legislation and reports, published primarily from June 2006 to June 2008, which address (i) principles of responsibility—professional, ethical, and legal—governing the law vocation and (ii) the practice of those theorems of responsibility, particularly by ‘family
law’ practitioners. (Unless essential to understanding of the text, footnotes and endnotes are omitted from excerpted material.)
^ Previous Papers
Seven previous comparable anthologies have been published: "Scruples" (1987), 2 C.F.L.Q. 151-197 (canvassing the period from the birthdate of legal memory to 1986); "Scrutiny" – for the National Family Law Program, 1996 (covering the period 1986 to 1996); "Security" – for the National Family Law Program, 1998 (covering the period 1996 to 1998); "Sanity" – for the National Family Law Program, 2000 (covering the period June 1998 to June 2000); “Sagacity” – for the National Family Law Program, 2002 (covering the period June 2000 to June 2002); “Sensitivity” – for the National Family Law Program, 2004 (covering the period June 2002 to June 2004, and “Sincerity” – for the National Family Law Program, 2006 (covering the period June 2004 to June 2006).
Accompanying this anthology (likewise its ancestors) is a caveat; more important than the anthology itself. The caveat is articulated by the Honorable Michel Proulx, of Quebec Court of Appeal (at his passing), and David Layton, Vancouver civil and criminal litigator, in Ethics And Canadian Criminal Law – the most recent substantial work about lawyer responsibility in Canada ((Toronto: Irwin Law, 2001), at p.3):
… while certain ... [responsibility] issues yield to reasonably clear answers, on many occasions identifying or applying the proper standards can be a maddeningly challenging exercise. Reasonable people can differ as to the proper … approach to apply in a given situation. Legal … [responsibility] is not an exact science, with every problem amenable to a set and indisputable resolution. What can be most frustrating about the study of lawyers' … [responsibility] is the elusiveness of a widespread consensus on many important issues.
Moreover. Justice Proulx and Mr. Layton caution (at p. 3):
Our legal culture undergoes constant and inevitable change, and so too, then, do expectations and standards pertaining to lawyers' behaviour. What was contentious fifty years ago may seem totally unproblematic today, and vice versa, Or the preferred method of approaching an issue may change dramatically over time. Ideas about legal … [responsibility] by no means mutate daily, yet … [t]his topic … is definitely not static.
^ Practising Lawyers In Canada
The constituency of the subject of this anthology (especially those practising ‘family law’) comprises, as of 31 December 2006, 74,483 lawyers; 77% of whom (57,295, including 34% (19,508) who are female lawyers) hold practicing status. (These most recent Federation Of Law Societies Of Canada figures do not include Quebec, and do not include, nationally, such categories of lawyers as “honorary” or “suspended” (for example, 3,293 suspended lawyers in Ontario as of 31 December 2006). )
In 2005, based on Canada Revenue Agency data, the median income of Canada’s lawyers and Notaries was $96,527.00 (up from $84,120.00 in 2000). The median income of ‘family law’ lawyers could not be obtained.
^ Challenges Facing Lawyers Practising Family Law In Canada
Issues of responsibility are most likely to present, frequently and meddlesomely, not to
mention expensively, for those lawyers who practise what customarily, if not curiously, is called ‘family law’; although more accurately may be described as the "law of uncoupling".
Accounting, principally, for practice-encumbering responsibility issues in family law is
clientele; described by Justice Thorpe of the Family Division of England's High Court:
Those who undergo both marital breakdown and contested litigation in its wake are generally, if transiently, emotionally and psychologically disturbed. Being unstable they are vulnerable. A great deal of hope and faith is invested in their chosen advocate who becomes for a short phase in their lives protector and champion.
^ Lawyer Responsibility
Governing responsibility in ‘family law’ practice (and, in law practice generally) are components that Justice Proulx and Mr. Layton characterize as "diverse and fluid"; which, “taken together, serve to develop and reflect the general principles that shape lawyers' actions and ideals, ... " (p. 3). They include "formal codes of professional responsibility, the views and writings of lawyers, events actually occurring in the courtroom, the demands and needs of clients, disciplinary decisions by governing bodies, judicial pronouncements, the expectations of the public, and the teachings and reflections that occur in law schools" (p. 3). Together with scholarship in books and journals, and other sources, they "constitute the legal culture that frames and influences" responsibility (p. 3).
Adequately understood and appropriately applied, these components of responsibility should, with experience, eventually impress law practitioners with the ability, in practice, to instinctively identify, and respond competently to, professional, ethical, and legal responsibility issues.
(b) Professional And Ethical Responsibility
The principal code of responsibility in Canada is the Code of Professional Conduct. This document had its origins in the Canons of Legal Ethics (very general statements of principle) established by the Canadian Bar Association on 02 September 1920; materially influenced by comparable Canons adopted by the American Bar Association in 1908. Canada's Canons of Legal Ethics were, on 25 August 1974, replaced by the Code of Professional Conduct, comprised of general rules and supporting commentary ("CBA Code") which, in turn, in August 1987, was
substantially revised and, in August 1995, was amended by addition of Chapter XX (regards non-discrimination). In 2004, other substantial alterations and additions were made. A revised ^ Code of Professional Coduct was published in August 2006. Later this year, the Code may be amended, or supplemented with guidelines, reference conflicts and practising with the new technologies.
Historically, the Code was largely or entirely adopted by law societies of the provinces and territories. About half of the societies currently continue to do so. The recent trend among the other provincial and territorial governing bodies, Justice Proulx and Mr. Layton determined, has been "to create codes of conduct that are more detailed, comprehensive, and contemporary …. [which] translates into rules that bear diminishing resemblance to the CBA Code, ..." ( p. 11).
Both the CBA Code and provincial/territorial codes "offer a formal expression of standards of conduct expected of lawyers. They say a lot about the role that lawyers play in the legal system and about the profession's collective beliefs and expectations as to appropriate behaviour. There is a constant tension between the desire to articulate lofty ideals in a hortatory code [that may be described as "professional responsibility"] while at the same time providing specific and practical guidance to lawyers who encounter ethical problems [that may be described as "ethical responsibility" governing discipline]. All Canadian codes on some level try to accomplish both tasks" (Proulx, Michel and Layton, David, p. 11).
In the United States, the original Canons of Professional Ethics (very general statements of principle) were adopted by the American Bar Association on 27 August 1908 and replaced on 12 August 1969 by the Model Code of Professional Responsibility (which distinguished between professional principles and ethical disciplinary rules). The Model Code, in turn, on 02 August 1983, was replaced by the Model Rules of Professional Responsibility. The Model Rules, like the CBA Code, integrates professional principles and ethical discipline rules and furnishes supporting commentary. About two-thirds of United States’ state Bar governing bodies have approved standards based on the Model Rules. The other one-third of state Bar governing bodies copy, more or less, the earlier Model Code. The Model Rules have undergone major revision based on the November 2000 proposals of the ABA Ethics 2000 Commission on the Evaluation of the Rules of Professional Conduct. (Courts, rather than lawyer governing bodies, are responsible for lawyer discipline in some United States’ jurisdictions.)
Perhaps the most exhaustive compendium on lawyer professional and ethical responsibility is the 2-volume Third Restatement of Law Governing Lawyers, published in 2000 by the American Law Institute.
Access to documents governing, and commentaries elucidating, professional and ethical responsibility is provided by the Canadian Bar Association (CBA.ORG) and American Bar Association (abanet.org) websites. Responsibility issues are also addressed within the American Bar Association by the Center for Professional Responsibility, whose extensive publications include the Professional Lawyer magazine.
A helpful definition of the distinction between the concepts of “professionalism” and “ethics” was provided by the State of Delaware Chief Justice, E. Norman Veasey, when he was Chair of the National Conference of Chief Justices of the United States. He wrote:
What is the difference between ethics and professionalism? Ethics is a set of rules that lawyers must obey. Violations of these rules can result in disciplinary action or disbarment. Professionalism, however, is not what a lawyer must do or must not do. It is a higher calling of what a lawyer should do to serve a client and the public.
Former State of Georgia Justice Harold Clarke also usefully articulates the difference between ethics and professionalism:
… ethical conduct is the minimum standard demanded of every lawyer while professional conduct is a higher standard that is expected of every lawyer. [Emphasis added.]
Professionalism is often viewed as an aspirational goal, with the consequence that unprofessional behaviour need not be accompanied by a concern for being disciplined by courts or Bar disciplinary authorities. However, judicial attitudes toward such disregard are changing. Chief Justice Veasey, when he was Chair of the Board of the National Centre for State Courts, wrote:
Abusive litigation in the United States is mostly the product of a lack of professionalism. Lawyers who bring frivolous law suits … [or] engage in abusive litigation tactics are unprofessional. They need to be better regulated by state Supreme Courts and better controlled by the trial judges who, in turn, are supervised by state Supreme Courts. … Lack of professionalism is a cancer which also infects office practice.
Washington, D.C., litigator Robert Saylor says “that Rambo lawyering or hardball lawyering is like pornography, you know it when you see it.” Saylor added that “I have never lost to a Rambo style litigator.”
(c) Legal Responsibility
Common law, equity, and legislation govern legal liability of lawyers in Canada. In contrast, professional and ethical responsibility principles, rules and commentaries, such as incorporated in the CBA Code and provincial/territorial codes, do not have the force of law. They are, however, respected by courts as representing important public policy. Per Sopinka J. (for the Court) in MacDonald Estate v. Martin, ( 3 S.C.R. 1235, at para. 18):
A code of professional conduct is designed to serve as a guide to lawyers and typically it is enforced in disciplinary proceedings. See, for example, ^ Law Society of Manitoba v. Giesbrecht (1983), 24 Man. R. (2d) 228 (C.A.). The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict
of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. Nonetheless, an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy.
^ Program History
This is the twelfth National Family Law Program. The first Program was presented in Toronto in 1978. Since its second presentation, ten years later in Montreal, the Program has been conducted in alternate years.
The editor of this anthology claims exception under the Copyright Act, R.S.C. 1985, c. C-42, s.29.
^ 2.0 SOURCES AND STANDARDS OF RESPONSIBILITY
2.1 Professional and Ethical Responsibility
"Good-Looking Lawyers Make More Money, Researcher Says”
Weiss, Debra Cassens, abajournal.com, 02 January 2008
A researcher studying the impact of beauty has found that good-looking lawyers—like other professionals—make more money than their colleagues with lesser looks.
Economist Daniel Hamermesh of the University of Texas bases his conclusion on the photographs of graduates of an unnamed law school. Those rated attractive in the photos went on to make more money than less-comely students, the Economist reports.
He also found that lawyers in private practice tended to be better looking than those who worked in government jobs.
“^ Hitting the books”
Chisling, Ava, National, January-February 2008, pp. 48-49
If you’re a law student wondering why you have to take a legal ethics course, you can probably thank Richard Nixon.
In the United States, the Watergate investigation in the 1970s turned up widespread lawyer involvement in the scandal, and the profession was motivated to take action in response. The American Bar Association ruled that it would only give accreditation to universities that taught ethics. That’s largely why today, ethics is a regular part of the American law school curriculum.
But 30 years later, legal ethics is still not a mandatory course at many Canadian law schools. Why not? “We are still developing our sea legs when it comes to teaching ethics in Canada,” says Trevor Farrow, an assistant professor at Osgoode Hall Law School in Toronto. “Schools have been slow because there is an historic divide between the academy and the profession.
“It may have started Watergate,” Farrow says. “But events like Enron and Hollinger continue to happen, and the public looks to the involvement of lawyers in these scandals. These events demonstrate that more needs to be done.” Alice Wooley, who teaches ethics and other courses at the University of Calgary Faculty of Law, also recognizes the effect of Watergate on ethics coursework. But she also believes that historically, there was an assumption that ethics could not be taught—either a lawyer knew how to be good, or he didn’t.
“The good news is that there seems to be a very broad buy-in now,” she reports. “In the past ten years, ethics has gone from a subject of concern to maybe less than five people in Canada to meetings two years in a row of everyone teaching ethics in the country.”
Not everyone was slow to put ethics in the classrooms. Law schools such as Dalhousie and the University of Alberta have been teaching ethics for years, and some, like the University of Manitoba and the University of Western Ontario, made it mandatory. But at others, the 2007-2008 academic year marked the first time students had to take ethics in order to graduate.
"Profit pursuit imperiling professionalism"
^ Schmitz, Cristin, The Lawyers Weekly, 18 April 2008, pp. 1, 20.
Lawyers’ drive to garner high incomes from private practice is making legal services unaffordable to the middle class and undermining lawyers’ professionalism.
That uncomfortable proposition was a clear thread woven through the comments of leading lawyers and judges here at a University of Ottawa conference on legal professionalism last month.
Canada’s top judge, Beverley McLachlin, set the tone by admonishing the audience of practitioners and law students that “we can’t take the business out of law, but we have to put professionalism back in the driver’s seat.”
“Let’s face it, we are falling down on access to justice,” the Supreme Court’s chief justice remarked.
She noted that the “pressure to earn can push fees higher, and it can also affect access to justice. It can squeeze out work that is good for the public, and sometimes good for lawyers.”
“We must remember,” she stressed, “with the privilege of self-regulation comes the obligation of professionalism, and we must never forget our vocation and obligation to serve the public good.” Ontario’s top judge delivered a similar message. Chief Justice Warren Winkler emphasized that access to justice is “the single, fundamental, most important issue to the justice system in this province today.”
He contrasted the profession’s current high expectations of income and its move in the 1980s to dockets and billable hours with the situation when he started practicing in Toronto 43 years ago. “What it was really like, I guess, was that people thought that it was at once a question of practising a very honourable profession, and making a decent living,” he recalled.
“The emphasis certainly, and decidedly, was not on making a lot of money, was not about being in business. It was not about materialism, and it was not about acquiring a lot of assets or a lot of worldly goods. The emphasis was on the professional aspect.”
Chief Justice Winkler said no one kept dockets in those days. The amount of time spent on a case “was determined entirely on what the case called for, and how thoroughly you wanted to be prepared. It had nothing to do with how much you could charge,” he said. “It was about personal pride, and doing the best for your client ... and it was about doing the best thing you could do for the court that was going to hear that case.”
He alluded to a leading employment law case decided years ago which was argued by senior counsel but which involved only a thousand dollars or so. “The fee would have been insignificant,” he remarked.
At that time legal entrepreneurialism meant running an efficient law office, not “taking a share in your clients’ business and ... making a lot of money out of it,” he added.
“People who were lawyers, but thought that their primary interest was either in making a lot of money, or in business issues, left the practice of law and went into business. They didn’t mix it up with their legal profession.”
Now many lawyers have higher income expectations, he noted. But when they both practice and get involved with the business of their clients, “there is a risk that the public will perceive that the professional lawyer ... is not devoting their entire focus, [their] undivided attention to [the client’s] problem if they have this distraction ... of having an involvement in the business aspects of one of their client’s businesses.”
Senior civil litigator Margaret Ross of Ottawa’s Gowling Lafleur Henderson, who was called to the Bar in 1976, said the public no longer has much faith or trust in lawyers who they see as “self-interested, money-obsessed champions of the corporate world and not as the allies of ‘the little guy’. In their view, lawyers are somewhat like politicians: not to be believed, fickle and motivated by self-interest.”
Ross said the public’s jaundiced view is unsurprising given that “we ourselves may have forgotten what a life in the law is supposed to be about.” In her keynote address to the conference, entitled “Challenges to the Standards of Professionalism in the Legal Profession,” Ross suggested “perhaps we have ourselves to some extent, lost sight of the fact that law is not simply a business. It is a calling. It is no coincidence that the words ‘advocate’ and vocation’ both come from the same Latin root: vocare, meaning ‘to call’.”
Ross said that in exchange for its self-regulating monopoly, the profession must act with integrity and discretion and put the public’s interest ahead of its own. “Without these conditions, we are little more than the purveyors of costly consumer services.”
Ross identified economic pressures, and the delays flowing from the present preoccupation with process in civil litigation, as two rising threats to lawyers’ professionalism.
The growing cost of legal education, and the fact that many lawyers do not come from privileged backgrounds and are saddled with big debts upon graduation, put financial stress on lawyers, she suggested. “It is trite to say that lawyers should get paid for their work. At the same time, it is disconcerting that a lawyer’s worth is increasingly often measured solely in terms of dollars. More and more, financial considerations have become the guiding force behind the modern law firm.”
Such pressures can negatively affect the quality of work and advice as lawyers do not have enough time for reflection and analysis, she said.
Ross argued the future of the profession will be imperiled if financial pressures lead lawyers to jettison such non-billable activities as pro bono work, mentoring younger lawyers or participating in professional organizations.
Ross said over-emphasis on the billable hour also feeds disillusionment among lawyers, who may not feel a sense of accomplishment from their work. “We need to remember that we chose law school over business school for a reason,” she remarked.
She also pointed out that the percentage of lawyers opting for private practice has plummeted from 65 per cent in 1994 to 53 per cent in 2005.
“More and more lawyers, not only female, are making it abundantly clear that they don’t want, or need to be, one of the ‘Top 40 under 40’ or a ‘Lexpert’-recommended expert in their field,” Ross observed. “More and more lawyers are saying that they don’t want or need to make millions, and may not even want to join the partnership.”
Ross urged law firms to respond to this phenomenon with options and choices about hours, status and remuneration. Otherwise, she warned, the profession faces the prospect that in 20 years time “there will be no one left to ‘run the show’.”
"Professionalism Clearly Defined"
Hamilton, Neil, (2008), 18 the Professional Lawyer (No. 4) 4, at pp. 4, 14.
A critical question for the legal profession is whether the profession and each individual lawyer can do better than they are doing today in realizing the profession’s public purpose, core values, and ideals. Take a moment and answer the question for yourself. The 2007 Carnegie Foundation for the Advancement of Teaching’s substantial study, Educating Lawyers. Preparation for the Practice of Law, finds that legal education and the profession itself could do substantially better at socializing students into an ethical professional identity.
Since the mid-1980s, the concept of “professionalism” has been the focal point for the organized bar’s debate whether the profession is adequately renewing its public purpose, core values, and ideals in each generation of lawyers. A significant theme in the early debates on professionalism was that recent trends in the profession had undermined some of the core values and ideals evident in the practicing bar in earlier periods of the profession’s history. The ABA’s 1996 Haynsworth Report noted particularly “the loss of an understanding of the practice of law as a calling” and “the loss of civility.” “Professionalism” for many lawyers has meant the bench and bar’s response to these perceived losses in recent decades and the consequent loss of public standing.
Arguments by generations of lawyers who graduated prior to the 1980s that ethics were higher and lawyer conduct more civil earlier in their careers, while understandable, are subject to the charge that such an “ethical golden age” did not exist, and in fact there were serious ethical problems of scoundrels, discrimination, and lack of diversity in the earlier time period. Claims of more ethical conduct or more civility in earlier periods are difficult to test empirically.
Moreover, debates over the comparative ethics of different generations of lawyers are not useful. The critical question at any point in the legal profession’s history is not whether the profession had more civility or a deeper sense of calling at an earlier period. The critical question is whether the profession and each individual lawyer can do better than they are doing today in realizing the profession’s public purpose, core values, and ideals?
The concept of “professionalism,” separated from any type of argument that an earlier golden-age existed when ethics were better, is extremely useful to answer this question. Professionalism describes the important elements of an ethical professional identity into which the profession should socialize both law students and practicing lawyers. This approach to professionalism connects the public purpose, core values, and ideals of the profession with the goal of fostering an ethical professional identity within each lawyer.
To maintain and strengthen the social contract on a continuing basis in each generation, the profession must socialize both law students and practicing lawyers into the principles of professionalism — the important elements of an ethical professional identity. This is the critical task for legal education, law firms and departments, bar groups and the bench. It is the mandate of professionalism that keeps self-interest in check and builds both the public trust that the profession is fulfilling both the social contract and each client’s trust that the lawyer is restraining self-interest to serve the client’s interests.
Professionalism is and must be much more than excellent technical competence and civility. It is the bridge from making a satisfactory living to purpose and meaning in the work of a lawyer. William Sullivan emphasizes “By taking responsibility through one’s work for ends of social importance, an individual’s skills and aspirations acquire value for others. Professionalism thereby forms a crucial link between the individual’s struggle for freedom in a fulfilling existence and the needs of the larger society… .” Professionalism is the bridge from self-interest to a calling where the lawyer’s livelihood acquires meaning by serving the public purpose of justice which is central to a highly interdependent society.
It is a paradox that the professional autonomy of each lawyer to employ his or her human capital to substantial advantage and personal satisfaction depends on each individual lawyer’s acceptance and internalization of the correlative duties of the social contract—the principles of professionalism. The lawyers who live the principles of professionalism create a public good for the profession as a whole—a type of shared property available to all licensed lawyers. The professionalism of these lawyers creates public trust that the profession is fulfilling the social contract, and the public therefore continues to grant the profession autonomy to self-regulate with substantial influence over the justice system. If too many lawyers become free riders, taking advantage of the shared property created by public trust while solely pursuing self-advantage, the public will lose trust and revise the social contract. Each lawyer will lose some autonomy in that revision.
Current scholarship tells us little about which approaches are most effective in socializing law students and practicing lawyers into the principles of professionalism. We need leadership from both legal education, the practicing profession, and the bench … to emphasize the importance for the profession that this socialization occur and to support efforts to assess which pedagogies are most effective to help adult professionals grow over a career into an ethical professional identity.
“Time escapes me:
Workaholics and time perception”