Column

Falling Short on Legal Ethics

I was speaking with someone the other day about whether and to what extent there were any ethical implications of lawyers’ use of artificial intelligence.

Those implications could theoretically range from minimum application (in what situations is it effectively malpractice not to use AI) to maximum application (where does a lawyer’s use of AI cross the line by substituting algorithmic outcomes for human judgment). It was all very interesting, and I plan to touch on some of these topics when I join a panel on March 2 in Toronto at the Canadian Bar Association-Federation of Law Societies of Canada Ethics Forum.

But I wanted to explore in this column a baseline exercise I conducted at the outset of the conversation, to try to identify the various dimensions of legal ethics, and to figure out the proper role of a regulator in this area. As I warned my conversant, and as I’ll warn you, I’m a complete amateur when it comes to legal ethics, and I fully expect to be schooled by Alice Woolley or Malcolm Mercer for the elementary errors I’m about to make. But heedless of humiliation, here I go.

It seems to me that the purpose of legal ethics is to maintain baseline adherence to, and encourage ongoing improvement in, three necessary or desirable aspects of a lawyer’s professional conduct:

Uprightness. This is what most laypeople think of when they hear about “legal ethics”: proper conduct, trustworthy behaviour, the daily exemplification of a lawyer’s honesty and integrity. An ethical lawyer has solid character, and you can rely on his word.

Competence. This relates to the lawyer’s degree of knowledge and skill in relation to her lawyerly activities. An ethical lawyer offers clients her services only in those areas in which she possesses and displays an acceptable level of competence. She can do the job.

Professional Responsibility. This relates to the degree to which the lawyer respects and meets standards of fiduciary behaviour regarding his client (for example, lawyer-client confidentiality, conflicts of interest, and client responsiveness) and other legal system parties.

I’m happy to argue exceptions, additions, and reconstitutions of this list, but I think that for discussion purposes, these categories are probably fit for purpose.

Now, on the first point, uprightness or character, there’s not a whole a regulator can do beyond setting minimum standards for personal conduct upon admission to the Bar and thereafter prosecuting bad behaviour that results from serious character flaws (as opposed to mere inattention or incompetence). A regulator can’t and shouldn’t make a moral assessment of whether a lawyer is a good person, but it can pursue a lawyer for misdirecting funds or misleading a client as to the status of its case.

On the second point, we have two regulated systems in Canada that purport to ensure lawyer competence: the articling year at the start of a lawyer’s career and CPD (or MCPD) throughout. I’ve posited elsewhere that articling is a poor substitute for new lawyer competence and that there’s no evidence that MCPD has any causal link to practitioner competence, and I continue to subscribe to these notions. I think legal regulation is significantly underperforming in this area.

On the third point, we’ve long had an after-the-fact discipline system to address lawyers’ failure to display professional responsibility. But these measures generally amount to closing the door after the horse has bolted. Nova Scotia is leading the way towards an entity regulation system that will create structures and frameworks to systemically support and help enforce proactive adherence to professional responsibility, but as of right now, regulation is also lagging here.

So here’s my proposition: Canada’s legal regulation system is doing a pretty mediocre job of promoting and enforcing two of the three dimensions of legal ethics. I think that lawyer competence could be much better maintained and enhanced through robust bar admission and lawyer training quality-control systems, and that institutionalizing strict standards for professional responsibility within law practices could greatly improve the legal profession’s ethical infrastructure. And I think these issues ought to be the #1 and #2 most important matters on every law society’s agenda.

Thoughts?

Comments

  1. Jordan,

    If you’re going to discuss competence issues, then, starting from the premise that the ONCA reasons set out everything that’s relevant, ask your audience to consider what the first instance result in Sataur v Starbucks 2017 ONCA 1017 tells them.

    A bad day for all concerned isn’t an adequate explanation.

    The first instance reasons aren’t reported, as far as I can tell.

    Cheers,

  2. Happily Jordan I agree with the second and third of your obligations – I’d state them as competent representation of a client (the second) within the bounds of legality (the third). I’m not sure I’d include the first, but only because I agree with you that it’s more of a thing that one hopes for than that one can regulate or even inculcate (although lots of ink has been spilled trying to suggest ways that it can be).

    A few thoughts in no particular order. First, in thinking about regulation of lawyers it’s crucial to remember that a lot of regulation is done by courts, not law societies – most of the work on preventing conflicts, e.g., comes from courts not the regulator. So the adequacy of regulation has to be assessed beyond the law societies.

    Second, Michael Trebilcock wrote a nice piece on competence regulation in 2008 for the Alberta Law Review – about the difference between input and output regulation.

    Third, which brings the first two points together, common law/private law is a material regulator of lawyer competence. To the extent liability is a material risk you can expect – as has been seen in the US – that insurers will start requiring law firms to engage in risk management practices (and education).

    Finally, I think the initiatives for entity regulation also go to competence. I think a lot of competence assurance can/is and should be accomplished through standardization of lawyer practices – the creation of checklists e.g.

    But great piece, and I look forward to hearing more on the 2nd!

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