Lawyer as Advisor: Where Are the Ethical Boundaries?

First as law students and then as lawyers, we repeatedly hear about the need for zealous advocacy. To take one example, the commentary to Rule 5.1-1 of the Federation of Law Societies of Canada Model Code of Conduct states, in part:

In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

The commentary also states “[t]he lawyer’s function as advocate is openly and necessarily partisan.”

In adversarial proceedings, the role and value of vigorous, partisan representation is apparent. The truth-seeking function of our court system relies heavily on parties skillfully and forcefully presenting their side of the case. Moreover, where an individual’s liberty is at stake, resolute criminal defence advocacy acts as an essential check on state power.

But what about when lawyers act outside adversarial proceedings? Should our understanding of the lawyering role change in cases where lawyering takes place more privately and without a third-party decision-maker (like a judge or tribunal adjudicator) acting as an institutional check?

A number of legal ethics scholars have suggested that these types of contextual differences matter. Bradley Wendel has argued, for example, in his book Lawyers and Fidelity to Law that where lawyers act in an advisory capacity —for example, in transactional planning matters or in offering tax advice—the lack of institutional checks imposes a greater responsibility on lawyers to advance positions consistent with the purpose of the law. In terms of “real world” cases, Wendel discusses at some length the flimsy (and hugely self-serving) legal analysis contained in “torture memos” prepared by the U.S. Department of Justice’s Office of Legal Council and the work of lawyers who assisted Enron “to structure transactions to conceal the true financial condition of the company, leading to its collapse and the losses of thousands of jobs and hundreds of millions of dollars of investors’ wealth.” Lawyers acting in these cases, according to Wendel, ought to have shown more “fidelity to law” and not treated the law as “merely a possible downside to be taken into account, planned around or nullified in some way.”

In Canada, the arguments raised by Wendel would appear to potentially have some resonance in relation to the action commenced by Edgar Schmidt against the Attorney General of Canada. As a recent story in CBA’s National magazine reports, Mr. Schmidt’s claim, among other things, raises questions about whether the process used by government lawyers to assess proposed legislation for inconsistency with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights results in candid and meaningful opinions about the prospects of proposed legislation surviving constitutional challenges.

The merits of Mr. Schmidt’s claim have yet to be opined on by the courts. Regardless of the outcome of this case, however, questions still remain about the ethical duties of lawyers acting in advisory capacities. When acting in advisory capacity, what is the role of lawyers as the guardians of the rule of law? What should govern a lawyer’s conduct in situations where the client is looking for advice to condone their behavior, rather than a competent legal opinion?

Rule 3.2-2 of the Model Rules provides that “when advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.” Does this rule go far enough? Do we need a new rule to set out a lawyer’s obligations when acting in an advisory capacity? Or is it simply a matter of better enforcing the current rules that we have which speak to a lawyer’s obligation to give genuine, independent advice? Or can regulatory rules really even get at the heart of the issue of fostering a lawyer’s obligation to fidelity to law (to use Wendel’s term)?

What do you think? Join me on December 10 at 7pm ET for the next #cbafutureschat to share your thoughts. If you’ve never participated in a Twitter Chat before, it’s a mix of a networking event and a retro ‘chat room’. Questions are asked by a moderator, and everyone is free to respond and engage with each other’s ideas. It’s a great way to get new perspective on issues, connect with new and interesting people, and provide valuable feedback to the CBA’s Legal Futures Initiative.

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