Koskie | Law

New Reality

Now that we are well launched into the 21st century, we see new business realities that cause us to be ever mindful of what is acceptable, ethical practice by lawyers.

One view is that the central problem is the loss of the ideal of the “lawyer statesman”–a conception of the lawyer as a person of practical wisdom and judgement whose concern extends beyond the interests of clients to the public good. Most lawyers find themselves embattled by a recent emphasis on competitiveness that sometimes restricts the scope for frank advice and public responsibility.

This is exacerbated by the fact lawyers are often forced to operate in a “moral ambiguity.” We often represent positions we may not like or believe in. Despite grandiose assertions about the pursuit of justice under the law, law is the only profession in which its practitioners regularly regard it as their ethical duty to harm the interests of others. Furthermore, lawyers do not make any pretense of fighting only for truth or justice. In one case, counsel may be attempting to prevent a severely injured person from recovering compensation and yet in another attempting to ensure that a child molester goes free. There are sound reasons why lawyers should take such cases, but the fact remains that we spend as much time resisting as championing attempts to obtain results that, as viewed by the public, are just. In so doing, we may make allegations that we may not believe and support them by an array of forensic techniques. In this context, it is easy to appreciate the cynical sentiments of the public.

The profession can draw some solace from duties recognized by our professional codes. They do constitute an important affirmation of the moral autonomy of advocates and demand certain standards of integrity and responsibility. However, while they impose constraints on the tactics that we may employ, they do not purport to negate, or temper the duty to pursue the interests of clients.

Business vs Ethics

In relation to some areas of human endeavour, a few–though we are not among them–have argued that ethics is irrelevant–it does not have a role in setting the standards that operate within that activity. They claim that this is the case in relation to business. They suggest that the relationship between business and ethics is one of independence. Business activity–so the argument runs–is governed by its own internal standards, which are not always founded upon moral principles. They say the primary aim of business is to make profits. Hence, consistent with this purpose, business should not be distracted by other objectives.

Business is typically defined very broadly, along the lines of the provision of goods or services with the intention of making a profit. Given the economic imperative to make money out of law and the handsome wages that most lawyers earn, it could be argued this attitude should extend to legal practice–the argument being that law is simply one form of business, like stock-brokering, banking, television or football. Against the backdrop of an increasingly competitive legal industry, some have speculated about whether it is possible to maintain noble ideas while practicing in the world of commercial realities.

Our Calling

We believe we can. The threshold issue, then, is the role ethics have in guiding the manner in which lawyers go about their practice. We suggest a broader focus within which such issues may be seen and addressed.

The legal profession has the potential to involve the conduct and behaviour of all human beings. As such, the lawyer’s role in society is indeed an important and fundamental one.

Lord Denning spoke of a lawyer’s calling in the following terms:

"As an advocate he is a minister of justice equally with the judge. A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal he may be. He must accept the brief and do all he honourably can on behalf of his client. I say, “all he honourably can” because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants; or his tool to do what he directs. He is more of these. He owes allegiance to a higher cause. It is the cause of truth and justice. He must disregard the most specific instructions of his client if they conflict with the duty to the court."

An Irish judge, Crampton, J., put it this way:

"He is a representative, but not a delegate. He gives to his client the benefit of his learning, his talents, and his judgment; but through all he never forgets what he owes to himself and to others. He will not knowingly misstate the law, he will not wilfully misstate the facts, though it be to gain the cause for his client. He will ever bear in mind that if he be the advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other licence which in any case or for any party or purpose, can discharge him from that primary and paramount retainer."
One must be careful not to read too much into these statements. They do not authorize lawyers to ignore their clients’ interests or instructions. The fiduciary duty that we are to evidence toward our client is a major trait separating our activities as lawyers from those, say, of a seller of goods to customers. Properly understood, however, they offer a succinct, yet profound, explanation of the status and responsibility of every lawyer.

There are ethical implications with membership of a profession that purports to serve the public interest by the pursuit of justice, but imposes obligations upon its members to adopt a partisan approach to the interests of their clients without regard for the merits of their causes. We need A “bedrock” of values, because the public relies upon the courts and the legal profession to protect cherished rights.

Code of Conduct

Although the Canadian Bar Association enacted its first Canons of Ethics as far back as 1920, our profession went for a long time without codification of the topic of ethics and the practice of law. That is not to say that we practiced without paying attention to matters of professional conduct in our practices. However, the profession as a whole paid less attention to promoting the matter other than through disciplinary proceedings. During the 1970’s, our profession changed its approach by enacting a written code of conduct that advocated standards of what would be regarded as a reasonably complete statement of what is expected of us in all aspects, professional and otherwise.

The duties outlined in our various code of professional legal conduct are expressly or impliedly put before us as minimus. That should produce caution on our part. The philosophical concept of the greater including the lesser comes into play in this instance.

Our Responsibility

Membership of our profession involves more than initial admission and subsequent honesty. Those who enter the law assume responsibilities quite different from those that apply to be employees in a purely commercial undertaking. They assume duties to the court and to justice. They comprise honesty, integrity, trustworthiness, respect, loyalty, competence and compassion. We may agree that these are attributes that one would/should bring to any professional endeavour, of whatever nature. As such, they are certainly not beyond our human grasp. We can glean the general nature of those duties from the code, but the concept of ethics is wider than that of rules and extends to an ethos or “shared culture.” The maintenance of ethical standards is substantially dependent upon the ethos of a profession that strives to serve the interests of justice and whose members support one another in maintaining what might be described as a culture of conscience.

In a paper delivered at a conference of the Australian Bar Association in May 1992, Sir Gerard Brennan said it this way:

"The first, and perhaps the most important thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what the barrister knows he or she should do: ethics are what the barrister does. They are not so much learnt as lived. Ethics are the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process. If ethics were reduced merely to rules a spiritless compliance would soon be replaced by skillful evasion. There is no really effective forum for their enforcement save individual acceptance and peer expectation. However, among those who see themselves as members of a profession, peer expectation is sufficient to maintain the profession's ethical code. Ethics give practical expression to the purpose for which a profession exists, so a member who repudiates the ethical code in effect repudiates membership of the profession."

Yes, rules fulfil an important role in legal ethics. However, as ethics can never be wholly codified, we must be mindful there is a danger that a preoccupation with codification could lead to an abdication of the lawyer's responsibility to decide the path of propriety in the light of sometimes competing duties.

This ethos not only maintains standards, but it provides guidance and, even more important, a context within which ethical issues can be understood and approached.

High Standards

We cannot overstate the importance of these concepts. Lawyers serve justice not only by pursuing the interests of particular clients, but by maintaining the rule of law and the system of justice provided for its enforcement. While all lawyers generally act on the instructions of their clients, it is imperative we retain real autonomy in relation to issues of legal ethics. Some measure of independence is of fundamental importance. Lawyers who are prepared to permit obligations of loyalty, whether to individuals, companies or governments, to override their ethical duty should not be surprised if their colleagues feel that they have forfeited the right to remain as members of an honourable profession.

More fundamentally, all who practice law are involved in the administration of justice and all are subject to subtle temptations. It is important to keep breast of legal and ethical rulings, to participate in seminars and otherwise maintain high standards, but above all else lawyers need a conscience, educated and informed by a sense of vocation.

The rules of professional ethics are not mystical or novel in any way. They emanate and are founded on common sense, virtues and ethos of a community or group. They are subject to evolution and changes in values and even cultural practices. What is unethical today may be the norm in another generation to come or completely acceptable within another community. The readiest example that comes to mind is the prohibition of advertising of legal services. Some time back this was not allowed, but today only a few restrictions remain.

In his book entitled, “The New Revelations,” author Neale Donald Walsch portrays himself as having a conversation with God. He asks God what humans must do to prevent destroying themselves. In addressing the author’s questions, God takes pains to point out some of the failings of the human race. One such failing was stated as follows: "This stubborn tendency of human beings to cling to their past, to refuse innovation or new thinking until they are forced to do so by an ultimately embarrassing weight of evidence, has been slowing your evolutionary process for centuries."

While we cannot be certain that we have presented you with an “embarrassing weight of evidence,” we respectfully invite you to consider the evidence and to reach your own conclusions on the point.