Lawyer competence is a relatively new concern for Canadian law societies. It was only in the 1970s, for example, that law societies really embraced the idea that they had a formal mandate to regulate the post-entry competence of lawyers. In addition to being a relatively new regulatory concern, lawyer competence is also an increasingly complex issue. Law practice has become highly specialized. Also, our understanding of lawyer competence has become more nuanced, now implicating a wide range of matters including, for example, technology, culture and wellness.
How best to handle this modern reality? Adding length and detail to rules of professional conduct is an obviously poor solution. The type of “command and control” regulation embodied by the rules and their associated disciplinary system is better suited to punishing lawyers rather than preventing problems. Rules also tend to focus on minimum standards rather than facilitating best practices. Although we need a system of punishment and minimum standards, we also need more flexible and ambitious regulatory tools if we are to help lawyers be the best lawyers that they can be.
One set of options to provide such help that some Canadian law societies are currently exploring involve the systemic implementation of more pro-active models of regulation. For example, the Nova Scotia Barristers’ Society “is building a new model of regulating legal services, in a manner that is risk focused, proactive, principled and proportionate” and has recently piloted a self-assessment tool that aims to allow law firms to determine if they have appropriate practices in place in a variety of areas. The Prairie Law Societies (Alberta, Saskatchewan and Manitoba) are also engaging in similar work with their pilot project happening this fall. The Law Society of British Columbia is currently pursuing a significant initiative on the topic of law firm regulation. And, for its part, the Law Society of Upper Canada is engaged in detailed study of whether adopting a more proactive regulatory model in Ontario would appropriate.
The above efforts are exciting and laudable. They also, however, involve or contemplate involving big projects which, for good reason, take considerable time and require significant regulatory reforms. In this column, I would like to propose one relatively simple thing that could be done in the short term, either alongside larger reform projects or in the absence of such projects: start publishing law society ethics opinions.
Although there are virtually no ethics opinions provided by Canadian law societies,[i] ethics opinions are very common practice among lawyer regulators in the United States. The nature of such opinions varies between jurisdictions, but, in general, ethics opinions are advisory opinions issued by regulators about specific issues that lawyers may face in practice. As summarized by Peter Joy: “ethics opinions respond to questions from practicing lawyers and apply the ethical rules to situations not anticipated by the express language of the rules.”[ii] In some cases, ethics opinion use a set of hypothetical facts to ground the analysis while, in other cases, the opinion simply addresses how the regulator views the appropriate response to a question, absent any further factual context.
To take one example, a 2011 ethics opinion from the State Bar of California titled “Gifts from Clients” considers the following issue:
When does an attorney violate rule 4-400 of the California Rules of Professional Conduct by accepting a gift from a client?
based on the following set of hypothetical facts:
Attorney represents Client in a real estate litigation matter in California that involves a second home that Client owns in Santa Barbara, California. Over the last year, Client has paid Attorney roughly $20,000 in fees. During the course of negotiations regarding the Santa Barbara property, Attorney tells Client that although the house is normally rented for $5,000 per week, Attorney feels that she has really earned a break and explains to Client that she would really be able to recharge her batteries and dive back into the case after relaxing for a week at the Santa Barbara property. Client, deeply invested in the result of the litigation but also facing difficult economic times herself, reluctantly hands Attorney the keys to the Santa Barbara house, agreeing that Attorney deserves a vacation and that she is free to stay there for one week without charge. Attorney gratefully accepts Client’s offer, not having the funds to pay the $5,000 for a week. Has Attorney violated rule 4-400?
and then offers an advisory answer with several pages of explanation. (The answer given to this hypothetical is that, yes, there would be a violation).
The practice of issuing ethics opinions has been subject to some criticism in the United States. Peter Joy’s research, for example, raises concerns about the prevalence of ill-equipped volunteer drafters who do not always write coherent and well-reasoned opinions. In addition to issues of quality, Bruce Green has noted that ethics opinions have also come under criticism for dealing with “trivial subjects” and for lacking persuasive value with courts (with respect to this later point, however, Green notes that there is some disagreement in the literature as to whether this is actually true).[iii]
Notwithstanding these critiques (many of which seem possible to remedy with appropriate execution), there would seem to be a lot of value in having Canadian law societies also offer guidance to their lawyers of this type. In particular, issues relating to technology would be ripe subjects to address in ethics opinions.
Many Canadian lawyers today are grappling with (or should be grappling with) questions like:
- When do a lawyer’s postings on social media websites fall under the ambit of rules of professional conduct about advertising and marketing?
- What level of encryption, if any, do lawyers need to use when e-mailing clients in order to comply with their duty of confidentiality?
- What are a lawyer’s obligations in relation to meta-data contained in electronic documents received from an adverse party?
- What are lawyers permitted to do when they are the subject of a negative online review from a former client?
- Can a lawyer view and access the social media website of an adverse party or witness in order to secure impeachment material? Can a lawyer “friend” the party for this purpose?
- Can lawyers pay “marketing fees” to online platforms that link them with clients?
All of these questions, and many more questions related to technology, are addressed in American ethics opinions. Wouldn’t it be great for Canadian lawyers to have similar guidance as well?
To be sure, it is not the case that Canadian law societies do nothing to help lawyers understand the ethical implications raised by various forms of technology. The Law Society of British Columbia, for example, has been lauded for creating Cloud Computing Due Diligence Guidelines and a Cloud Computing Checklist. The Law Society of Upper Canada is also notable for publishing a Technology Practice Management Guideline. In some cases, lawyers are able to get some private guidance on technology issues when they call a law society’s practice advisory service.
More could be done, however. Why not use ethics opinions to help lawyers navigate technological issues? Undoubtedly, there is a cost implication, but it would not seem to be massive. Law societies could also partner to produce joint, if not national, ethics opinions in order to reduce cost and increase uniformity.
The help that lawyers need to practice competently has evolved in recent years and so must the tools that regulators use to provide this help. Assuming that regulators can produce ethics opinions that are high quality and helpful (on this latter quality it will be essential that ethics opinions are not overly protectionist or conservative), this is one tool worth considering. The case for technological ethics opinions will only get stronger if Canadian law societies decide to explicitly incorporate a duty of competence in relation to technology – an issue which is now being canvassed by the Federation of Law Societies. Why not get a head start?
[i] Annotations to Ethics Committee minutes that the Law Society of British Columbia provides to its online Code of Professional Conduct is one important exception.
[ii] Peter Joy, “Making Legal Ethics Opinions More Meaningful” (2002) 15(2) Georgetown Journal of Legal Ethics 313 at 313.
[iii] Bruce Green, “Bar Association Ethics Committees: Are They Broken?” (2002) 30(3) Hofstra Law Review 731.