Ethical Lawyering CAN

TRU Law

Sources for Ethics:

1)Legal Professional Act of BC

2)The Law Society Rules

3)Solicitor’s and Barrister’s Oath

4)The Code of Professional Conduct for BC

5)Cases

Issues with the Oath:

  1. Problem clients: lying, won’t pay, won’t take advice (shouldn’t work for free) – need to pay for rent of office, assistants etc. or can’t properly represent any client.
  2. TWU
  3. Is the SCC following the rule of Law?

Public interest issue: the law society is a regulator and is not mandated with protecting the interest of lawyers. That is why Hearing Panels are composed the way there are and complainants are treated respectfully.

What is Ethics:ethic are codified, it is dependent on the location you are in. With respect to BC, legal ethics are within the law society’s purview in addition to personal ethics. Basically, for the legal profession ethics are codified. Morality can act as an indicator to whether something is unethical. Personal ethics can conflict with professional ethics, in that where the former is compromised the latter can also be comprised if a person does not handle it well. The point where personal ethical breaches affect the responsibilities and duties mandated by the legal profession, professional ethics may be breached. Not just a body of laws or non-legal norms.

Challenges to a model of Liberal Ethics: There is an inclination censure “disgusting” or otherwise abhorrent (but unharmful) behavior generally. Psychologist have used questions like “should your neighbor be allowed to have sex with the corpse of a chicken” to separate out this effect from other norm enforcing inclination.

Ethical behavior (or morality) evolve: ethics is also not fixed in time it evolves (mommy porn example, consensual fist fighting). Homosexuality is another example as is transgender rights. Moral standards between religion back in the day and now…(bible v. modern moral standards).

LSBC Mandate 1: Section 3 of the Legal Profession Act – “to uphold and protect the public interest in the administration of justice by…

  • (a) preserving and protecting the rights and freedoms of all persons,
  • (b)ensuring the independence, integrity, honour and competence of lawyers...
  • (c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission
  • (d) Regulating the practice of law, and
  • (e) Supporting ... lawyers, articled students...in fulfilling their duties in the practice of law.”

Benchers: (S. 4 of LPA) (a) AG, (b) person appointed under s. 5 appointed by the Lieutenant Governor in Council, (c) person elected under section 7, (d) the present, first vice-present and second vice-president.

Application for Enrollment, Call and Admission or Reinstatement

Section 19 of the LPA: (1) No person may be enrolled as an articled student, called and admitted or reinstated as a member unless the benchers are satisfied that the person is of good character and repute and is fit to become a barristers and solicitor of the Supreme Court

(2) On receiving an application the benchers may: (a) grant the application, (b) grant the application subject to any conditions or limitations to which the applicant consents in writing or (c) order a hearing.

Application for Admission Form

Question 4: While attending at a post-secondary institution, have allegations of misconduct, including academic misconduct, ever been made against you or have you ever been suspended, required to withdraw, expelled or penalized by a post-secondary institution for misconduct?

  • If yes, please provide details of the allegations, suspension, expulsion or penalty imposed upon you?

Question 6 and 7: Have you ever been discharged, suspended or asked to resign from any employment? Have you ever served in any police force or armed forces. As such a member, have any formal charges or proceedings ever been instituted against you? Been a defendant in a court martial? Etc.

Good Character questions: having been charged with a crime or offence (excluding parking tickets, if you have fewer than 5) or whether a person has declared bankruptcy.

  • Have you been a defendant in a civil action in allegations of fraud, theft or misrepresentation? Is there a civil action pending against you?
  • Have you ever failed to obey a court order? Have you ever been imprisoned for failing to obey a court order?
  • Have you ever, as a member of a professional or other organization, had disciplinary action commenced against you to been censured, suspended or disqualified.
  • Have you ever been denied or had revoked a license or permit the procurement of which required proof of good character?
  • Been refused registration as a student of law, articled law student, law clerk or similar position in any jurisdiction?

Consideration of Applicant: 2-56(1) of the Law Society Rules - the Executive Director must consider an application for enrolment by a person meeting the academic qualifications established under Rule 2-54 and may conduct or authorize any person to conduct an investigation governing the application. (2) states that the Director can either enroll the student without conditions or limitations or refer him or her to the Credentials Committee. (3) states what can happen after being referred to the committee: (a) enrolled, (b) enroll with conditions or (c) order a hearing.

Credentials Committee: responsible for overseeing the enrolment, education, examination and call to the bar of articled students, transfer of lawyers to BC and the reinstatement of former lawyers. When the character or fitness of the an applicant for admission, readmission or transfer needs to be addressed, the committee considers the application directly or orders a formal credentials hearing. The Committee is also responsible for reviewing applications relating to a student’s failed standing in PTLC and for considering any matters arising from the articling system. The committee further assist the benchers in settling credential policy and ensuring that this policy is adhered to an assists in credentials program planning, evaluations and budget.

Credentials Hearing: consists of a paner of three, Bencher, a lawyer, and a public representative. There is a court reporter, evidence on oath, written decision, and credibility determination. Basic Admin law principles apply such as no bias, right to be heard, fairness. The panel’s decision is reviewable (governed by Rule 5-16 of the Law Society Rules) by an appeal board consisting of 7 members. After that this decision can be appealed to the BCCA via section 48 of the LPA.

Considering past Criminal Charges or Convictions – Committee asses these factors:

  • applicant's age at the time of the conduct in question;
  • recentness of the conduct;
  • reliability of the information;
  • seriousness of the conduct;
  • factors underlying the conduct;
  • cumulative effect of the conduct or information;
  • evidence of rehabilitation;
  • applicant's positive social contributions since the conduct;
  • applicant's candour in the admissions process; and
  • materiality of any omissions or representations

What does it mean to be of good character?:means those qualities which might reasonably be considered in the eyes of reasonable men and women to be relevant to the practice of law in BC at the time of application. Character within the act comprises in my opinion at least:

1)An appreciation of the difference between right and wrong

2)The moral fiber to do that which is right, no matter how uncomfortable the doing may be and not to do that which is wrong no matter what the consequences may be to oneself

3)A belief that the law at least so far as it forbids things which are malum in se must be upheld and the courage to see that it is upheld

  • “What is ‘Good Character’” (1977), 35 The Advocate 129

Another way of thinking about it: would a right thinking member of the community consider the applicant to be of good repute?

Alice Woolley: suggests law societies abandon character and fitness review. The administration of which relies to heavily on a generic concept of moral character and follow process that is grossly unfair to some applicants. It depends on irrational beliefs about the nature of human behavior and a concern with the reputation of the profession. Advantages to abandoning it are significant: allow regulatory resources to be re-deployed to more effective and useful initiatives and protects applicants from arbitrary results. If not abandonment then the law society ought to adopt exclusionary rules. While arbitrary, an individual who falls outside of the scope of the exclusion is less likely to pursue a legal education and will not spend years of time and tens of thousands of dollars in obtaining academic qualifications for legal practice.

Good Character and Public Interest Mandate:

Law Society of BC v. DM (December 15, 1994): good character and repute must to some extent the expectations of both the public generally and other lawyers specifically in what both groups desire, need or otherwise seek in a member of this profession. The applicant’s past conduct is important but the assessment must focus on the current character of the applicant. Demonstrating rehabilitation, an imperfect past will not necessarily result in rejection for enrolment as an articled student or for call and admission. Principles:

1)No isolated act or series of acts necessarily defines or fixes one’s essential nature for all time

2)Character evolves and a person can rehabilitate him or herself, to an extent that past defects can be overcome

3)The question is: can the applicant demonstrate that he or she has rehabilitated himself or herself, noting that there must always be a balance between protecting the public from rogue or undersirable lawyers and the concept of redemption and

4)The standard to be met in assessing an applicant’s character and repute is not one of perfection or certainty.

Note: admission is not about forgiveness but the test of good character today.

Watt Test:

1)Is there a long course of conduct showing that the applicant is a person to be trusted?

2)Has the applicant’s conduct since [ceasing to be a member] been unimpeachable?

3)Has there been a sufficient lapse of time since [the Applicant ceased to be a member]?

4)Has the applicant purged his guilt?

5)Is there substantial evidence that the applicant is extremely unlikely to misconduct himself again if readmitted?

6)Has the applicant remained current in the law through continuing legal education or is there an appropriate plan to become current?

1)Federation of Law societies: Law societies are mandated by provincial and territorial statutes to regulate members of the legal profession in the public interest. The licensing of members of the profession is a key component of that responsibility. Applicants for admission to the profession must demonstrate that they possess the core skills and knowledge necessary to practice law competently. Members of the legal profession are also expected to be of good character. The legal profession is increasingly mobile. Under the terms of a series of agreements between Canada’s law societies, members of the legal profession may move with ease from one jurisdiction to another. With admission to one law society effectively permitting admission to every other Canadian law society, consistency and defensibility in admission standards are desirable. The Federation has undertaken a major initiative on behalf of the law societies to develop national standards for admission to the legal profession. The drafting of a profile of the competencies required upon entry to the profession and the development of a common standard for ensuring that applicants meet the requirement to be of good character were the goals of the First phase of the project. Implementation of standards will be the focus of the second. Although certain jurisdictions would like to see greater emphasis placed on integrity, law societies generally support the proposed shift to focusing on the four elements of a national standard, namely respect for the rule of law and the administration of justice, honesty, governability and financial responsibility

2)Policy: Good character assessments are one means of conveying to the public and the profession that licensees must comply with standards of professional conduct. Transparent definition of good character would deter certain individuals whose past behaviors raise concerns and who would be unwilling to maintain professional standards in the future, from applying for a license. Assessments enable law societies to evaluate the risk to the public of the admission of particular individual to the profession.

CBA’s View: the assessment of current character, or suitability to practice, has little predictive value as to the future behavior but that the process of assessing past behavior is worthwhile if it conveys to the profession and the public that the profession is held to certain standards and is, therefore, worthy of the public’s trust

A.B. v. Bragg Communications:Disclosure of IP addresses of fake FB page about a teenage girl/sex etc. The girl’s father sought IP addresses from ISP to identify owner. Court ordered production. It stated: “No compelling public interest allowing someone to libel and destroy the reputation of another while hiding behind the cloak of anonymity.”

Damages of social media: liability has been found and damages awarded where social media is used to damage reputations.

  • Applause Store Productions v. Raphael: fake FB page
  • Griffin v. Sullivan:180L damages, 50K aggravated damages for libel arising from publication on internet.
  • Nesbit v. Neufeld: husband creates webpage and fake fb page and Youtube video about wife. Not complimentary…40K damages

Employment

Re: Municipality of Chatham-Kent and Canadian Autoworkers Local 127: caregiver who released personal information about residents and trashed management on her blog was terminated.

Alberta v. AUPE (2008): termination of Alberta Government worker upheld. Blog had used pseudonyms to ridicule co-work

Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union: insulting remarks about manager and employeraccused of being crook, firing maintained.

Discovery Orders: Discovery orders of FB pages if relevant to allegation that injury prevented P from skiing etc. PI lawyers always advise to take down social media/cease posting. Personal cellphone records following an accident are discoverable as CPR requires phones to be off while on duty.

Dishonorable Conduct: a lawyer must not in private life or professional practice, engage in dishonorable practice engaged in dishonorable or questionable conduct that casts doubt on the lawyer’s professional integrity or competence or reflects adversely on the integrity of the legal profession or the administration of justice.

Confidentiality: a lawyer shall hold in strict confidence all info concerning the business and affairs of the client acquired in the course of the professional relationship regardless of the nature or source of the information of the fact that others may share the knowledge.

LSBC Overview: 180 employees, 31 benchers, PLTC, members services, admissions, HR, Finance, Communications, IT, Practice Advice and Practice Standards, Trust Assurance, Policy, Lawyers Insurance Fund, Professional Regulation

Chapter 2 of the BC Code for Professional Conduct: A lawyer is a “minister of justice, an officer of the courts, a client’s advocate and a member of an ancient honorable and learned profession.” This is a duty to:

  • Promote the interests of the state
  • Serve the cause of justice
  • Maintain the authority and dignity of the courts
  • Be faithful to clients
  • Be candid and courteous in relations with other lawyers
  • Demonstrate personal integrity

The Rule of Law:Acceptance by communities of the rule of law is the fundamental organizing and civilizing principle promotes predictability and contributes to the creation and maintenance of the condition that allow all of us to go about our complicated lives confidently, efficiently and Safely, whether we are business people with grand ideas and limited capital, unhappy tenants or neighbors needing wills or employment contract or advice concerning problems. Acceptance of the rule of law ensures that we all be treated fairly in respect of all matters whether we are members of a minority group or are badly treated spouses or accused murderers.

Gordon Turriff QC on the Rule of Law: it is the keystone of order and the key to prosperity in all our communities. The rule of law is a conception, a shared commitment to set of inter-dependent propositions about how people can live together under arrangements that guarantees fairness in all respects, no matter how different those people might be in any respect. I will state the proposition here:

  1. that law, not force, or even the power of a personality, should regulate our lives;
  2. that the law that regulates our lives is a body of rules to which at least a majority of us, in any community, has assented, and which are intended, as much as is possible to balance competing public and individual interests;
  3. that no one, including government, is above the law, meaning that, unless expressly excepted, all rules bind all people to whom they could apply;
  4. that everyone is equal before the law, meaning that all rules apply the same way to all people;
  5. That Judges must be impartial and independent, meaning that they must not pre-judge the matters they must decide and that their judgments must result from thoughtful consideration only of the evidence led and arguments made before them;
  6. that lawyers must be independent, meaning that they must be free of all influences that might impair their ability to discharge the duty of loyalty they owe each of their clients; and
  7. that the confidentiality of communications between lawyers and their clients must be preserved so that clients will be encouraged to lay everything bare, and by doing so ensure that they will get their lawyers’ best advice

Oath and the Rule of Law: self regulation, to conduct one’s self truly and with integrity and that will uphold the rule of law and the rights and freedoms of all persons. The rule of law needs bite, it needs a coercive power.

Client ID Rule: Law Society Rule 3-98 to 3-109 require lawyers to follow client ID and verification procedures when trained by a client to provide legal services subject to various exceptions. These rules require that lawyers make reasonable efforts to obtain basic identification information about clients. The reasons for this rule is that we do not want a conflict of interest, bills and accounts.

No Cash Rule: Rule 3-61.1 says that a lawyer who received cash from a lient is a not a lawyer’s employer, must maintain a cash receipt book of duplicate receipt book and make a receipt in the receipt book for the amount of cash received. A lawyer can refuse to accept cash as and ought to do so so when it would assist in or encourage any dishonest acts, crime or fraud.