As a first post on legal ethics, it seems appropriate to ask “what exactly are we talking about”. The answer isn’t as simple as one might think given the number of different perspectives involved.
Courts set (or reflect) legal ethics in cases involving lawyers. Law Societies set legal ethics in codes of conduct and in discipline cases. Legal scholars posit appropriate legal ethics, either as a matter of formal legal reasoning or from varying philosophical perspectives. Practising lawyers develop their own sense of legal ethics in part from these other sources and in part from their participation in the legal culture in which they practice. And there are of course broader ethics applicable in society generally– some of which are quite different from legal ethics.
Having come late in my career to thinking about and working in the field of legal ethics, one of the surprises for me was an implication of these disparate perspectives. It is not uncommon for discussions about legal ethics to be inadvertently at cross (or at least different) purposes. Participants in the discussion think that they are talking about the same things but that isn’t always so.
The oral argument in McKercher provides a recent example. At immediate issue was whether the so-called “bright line rule” first articulated in Neil is a categorical rule or a presumptive rule. In other words, can a lawyer act “directly adverse to the immediate interests” of a current client where there is no real risk that representation undertaken by the lawyer for that current client will be materially impaired. This is one of the most controversial current issues in legal ethics for Canadian lawyers.
But before the court, this issue is analyzed as a matter of fiduciary law rather than legal ethics per se. Fiduciaries have long been subject to a duty to avoid conflicting interests. Justice Binnie, in Neil, articulated the “bright line rule” as part of fiduciary law. But fiduciary law is not just about lawyers. Fiduciary law has its own internal structure and perspective and applies to all manner of fiduciaries.
Other questions of legal ethics have been analyzed differently by the courts. In MacDonald Estate, the circumstances in which a lawyer can act adverse to a former client was addressed. This question was not analyzed as a matter of fiduciary law but rather as a matter of protecting the integrity of the administration of justice in proceedings before the court. The Supreme Court concluded that the integrity of the administration of justice required that litigants not be required to suffer the risk that their confidential information would be used against them in adversarial proceedings .
So why does this difference in legal approach matter? It is because the structure, scope and purpose of fiduciary law is quite different from that of the law protecting the administration of justice. Fiduciary law has a very broad scope with lawyers only being one class of fiduciary. In contrast, the protection of the administration of justice has a much narrower focus affecting only some of what some lawyers do. When judges apply these quite different jurisdictions, the implications for future cases will be quite different as are the considerations at play in the particular case.
For legal scholars, their approach to these questions of legal ethics depends on their academic focus. Fiduciary law scholars and legal ethics scholars consider the same questions from quite different perspectives. The legal ethics scholars are generally, I think, not much interested in fiduciary law as such. Their scholarly interest is understandably about “how lawyers should act” rather than “how fiduciaries should act”.
Legal ethics scholars and law societies have essentially the same scope of interest. Both are properly concerned with what lawyers should do in all aspects of legal practice. Both seek to ensure that clients are properly served by their lawyers while also seeking to ensure that the legal system operates properly. There are naturally a range of views about how the legal system should operate and what realistically may impair that operation. These different views animate important debates such as the current controversy about civility.
But back to McKercher and further back to Neil. It is noteworthy that Neil articulated a general rule as part of fiduciary law yet Neil was not a fiduciary law case. At issue in Neil was whether an accused was entitled to a stay of proceedings because his former counsel acted in a conflict of interest. The essential question in Neil was whether the proper administration of justice required that criminal proceedings be stayed. The lawyer/fiduciary was not a party to the proceeding. No fiduciary remedy could have been granted. Yet the reasons in Neil are mostly about fiduciary law. While never said or justified, the articulation of a fiduciary current client conflict rule was presumably on the view that fiduciary law could properly be used to elaborate detailed general rules of conduct for lawyers in all areas of practice and not just in cases involving matters before the courts.
Much of the debate in oral argument in McKercher and elsewhere has addressed the nature of a proper current client conflict rule. The nature of the bright line rule is of natural interest of legal ethics scholars, law societies and practising lawyers. All of the participants in the McKercher appeal addressed this issue. It remains to be seen how the Supreme Court will address this issue.
But perhaps of greater importance is the proper role of fiduciary law and the respective roles of the law societies and the courts with respect to professional conduct. Unfortunately, there were limited submissions on these issues to assist the court. It will be most interesting to see how (and if) these foundational issues are addressed.
In the interest of full disclosure, I acted as counsel to the intervener Canadian Bar Association in McKercher.