Column

The Two Faces of Lawyer Altruism

After a year off from teaching legal ethics, I need to prepare before my course starts in January. Getting up to speed with the shifting “law of lawyering” is obviously part of the job. Students need to know the rules that they will have to follow when they practice law; that’s a big part of the reason why the course is mandatory. Obeying the law of lawyering usually accords with self-interest. It keeps one out of trouble with the law society, and it’s a good career move.

However professionals are ideally more than just rationally self-interested rule-followers. Lawyers (like other people) have the potential to behave altruistically. In other words, they may act contrary to their own material interests, in the absence of any legal obligation to do so. Fostering altruistic legal professionalism is often considered part of the job description for teachers of legal ethics.

In the practice of law, there seem to be two very different versions of altruism. A generously altruistic lawyer sacrifices material self-interest in order to help clients. A courageously altruistic lawyer sacrifices material self-interest in order to confront and resist wrongful behaviour – including, potentially, the wrongful behaviour of the lawyer’s own client.

Generous Lawyer Altruism

Working pro bono, discounting bills for those of modest means, and accepting financially unappealing retainers are all examples of “generous” lawyer altruism. These lawyers sacrifice their own material interests in a way that improves their clients’ position. The clients who benefit are typically those of modest means, who would not otherwise have access to justice.

This happens all the time, but some lawyers stand out. Calgary’s Jean Munn has been recognized with multiple awards for the countless hours she has spent assisting immigrants without charge. Dugald Christie gave up a corporate law career and dedicated his life to spreading law clinics and fighting for legal aid. He died while riding his bicycle across the country as part of this campaign.

Courageous Lawyer Altruism

Courageous altruism is very different. Courageously altruistic lawyers confront powerful people, states, and corporations. The clearest examples are those who risk their liberty and even their lives in resisting autocratic governments. In Iran, human rights lawyers such as Shirin Ebadi and Nasrin Satoudeh have represented dissidents and activists against the regime. The price these women pay for their courage has included imprisonment, ostracization, and threats of violence.

Sometimes the powerful parties confronted by courageously altruistic lawyers are their own clients. Courageous altruists refuse to help clients pursue dishonest or illegal goals, and they refuse client pressure use dishonest or illegal means to accomplish even legitimate goals. Courageous altruists may publicize things about clients that they don’t want heard by anyone. Here in Canada, Department of Justice lawyer Edgar Schmidt sued his own employer for failing to properly review the constitutionality of legislation. He was suspended without pay. “Blowing the whistle” on illegal client activity is a form of courageous altruism. (The American Bar Association’s Model Rules of Professional Conduct give lawyers much more scope to blow the whistle on client misconduct than Canada’s Rules do).

Two Faces

Both types of lawyer altruism require a legal professional to deviate from material self-interest. The generous altruist sacrifices income or leisure time. The courageous altruist is likely to irritate — if not seriously offend — powerful people including clients, employers and potential future employers.

Generous altruism and courageous altruism are both aspirations of legal professionalism. However they can’t be taught in the same straightforward doctrinal fashion that the law of lawyering can. The whole point is that these behaviours are not required by law. Nor are they in the realm of good career advice for those who seek to succeed in material terms. Stories of inspirational lawyers such as those mentioned above may be the best way to include altruism in legal ethics education.

Comments

  1. Always interesting to hear law professors and judges, who have guaranteed, perpetual incomes and whose overheads are 100% paid for by others, advocating for more altruism and pro bono work to be done by lawyers in private practice. Even when judges and law professors do volunteer work, it does not touch the flow of money arriving in their bank accounts like clockwork from a guaranteed (government or university) source, does not result in overhead cost losses, and does not lessen what they will have available when they retire in perpetual guaranteed comfort.

    As it happens, I do a lot of work for no pay in the public interest and frequently give advice to clients, callers and audiences for no remuneration, but not because of exhortations by the permanently comfortable.

    Although I am not jealous of the perks of the difficult jobs of judging and professing, I do suggest that every time a judge or law professor writes or makes a speech calling for more free work by private practitioners, they choose a private practitioner at random and send them a written guarantee that, if the private practitioner will contribute three to four hours of pro bono work, the judge or professor will forthwith send the lawyer a cheque for $1,000.00 out of the judge’s or professor’s personal income. The lawyer can then apply half of it toward overhead expenses (they continue regardless of the time spent on pro bono work) and half of it to the RRSP – two of the things (overhead and pensions) that judges and professors do not have to worry about.

    In amity.

  2. Bradley , I have heard your argument or variations of it for years and I have to respectfully disagree. The idea that judges and academics (the ‘permanently comfortable’ as you call them) can’t have views on pro bono work without being hypocrites is seriously flawed.

    Private practice lawyers who rely on client billings have no monopoly on the subject of volunteerism. Many are doing quite well and are so focused on billing that they shed any duties that don’t result in billings. Some are doing less well obviously, but I’ve seen no correlation between a lawyer’s billing’s and their commitment to volunteerism. If anything, there may be a negative correlation between lawyer wealth and volunteerism.

    Let’s not forget that many academics had top marks in school and could have chosen a more lucrative career than teaching.

    Many excellent and well paid lawyers choose to forego large incomes to become judges. Sure, judges are paid well and have ridiculous pensions (supernumerary status should be abolished IMO) but for many this is a pay cut and in order to even be considered for the bench they need to have contributed to the community through volunteer activities.

    I found Noel’s post very appropriate and in fact a good reminder of why our profession is such a great one.

  3. Would Ontario Justice Patrick Smith’s decision to act as an interim dean for Lakehead University’s law school qualify as altruism? The CJC has characterized it as reckless.

    How about former CJC member Neil Wittmann’s extra-judicial engagements with the Canadian Football League and friends as noted here – https://calarbs.com/the-honourable-neil-wittmann-q-c/ ?

    I asked the Alberta Attorney General about that. The reply I received cited a provision of the Judges Act that allows a governor in council to authorize such engagements. If Justice Wittmann served the CFL and friends gratis would that have made his service altruistic?

  4. David,
    They also could have ended up in careers less remunerative than teaching. High marks do not necessarily translate into private practice capability. I am, you should know, happy that we have academics. We need teachers and we need high-level legal researchers. Yes, our profession is a great one, and all of us are proud to be members of it. I doubt there is another profession in the land that does more pro bono work than the legal, or is even close to ours on that score. Doctors used to do it on a regular basis within their patient catchment area, probably even outdoing lawyers, but that has come virtually to an end compared to the old days following the nationalization of the medical profession by, and mostly in the interests of, the bureaucracy.

    Further, I do not think judges and academics are hypocrites. I do think that some of them have forgotten or never experienced the need to meet overheads, generate work, and collect payment.

    But it is just a little tiresome when people whose incomes and retirements come mainly or entirely from secure government sources are quick to ask those in private practice (virtually all of whom will never retire in anywhere near the same security and comfort as those doing the asking) to do more free work. I am happy to do the free work that I do. I believe most lawyers do free work and are pleased to do so. But, one judge said that the cost of wills should come down by half. One wonders if that judge went to a huge firm with their imperatives to bill, bill, bill, but for most small firms the typical cost of a will, when broken out of the total for doing a will, POA Property and POA Personal Care, around the Province is probably about $200 (which often saves the client’s family many thousands in estate administration costs – the cost of wills is probably the best bargain the public gets from the legal profession).

    I hereby promise to do wills for $100 on one condition: someone else, perhaps the taxpayers despite the burdens they already bear, pays every scrap of my overhead – secretaries, rent or property taxes, utilities, computers, photocopier/fax machines, desks, chairs, pens, paper, phone, internet, law society fees and levies, etc. etc. Then, I can offer all my services for half my current, highly competitive (in a pretty cut-throat market) charges.

    What I would encourage from everyone (including me!) is more thought given to how we can reduce the need for free work by making more and more of it affordable. We could work at reducing the Ruinous Time and Cost of Litigation. We could remove custody fights from the courts as has been the case in Europe for 50 years. We could ask judges to do more to ensure that costs follow the event and that offers to settle are both exchanged and used to clobber with costs any party who has been resolutely unreasonable. The government could cut out some expensive and largely unnecessary steps in the litigation process, and could simplify the paperwork (does this need a blue backer or a buff backer? Damned if I know).

    I am merely one of many, many people who have been striving for decades to make the practice of law better for everyone – the clients, the lawyers and the others in the system. I applaud anyone else who also expends efforts toward those goals but let’s be as realistic as possible. When we have a federal debt of over 700 billion dollars and a provincial debt of over 300 billion dollars (both rising each and every year), the problems will not be solved by small firm lawyers being asked to do more free work than they already do. Nor will counter-productively raising taxes solve anything. We have already seen a drop in total tax revenues taken from the 1% as a result of Trudeau’s hike of the top tax rate. More borrowing would be even worse. Rationalizing government spending and government-paid remuneration packages, as a start, would help society a lot more.

    Cheers.

  5. By the way, David, if I had my druthers, no remunerations would have to be rationalized in light of our scary governmental debts. After all, jobs were taken in good faith and mortgages obtained in light of them. Instead, it would be better if the economy were to boom such that we could maintain current services and remunerations while generating enough additional tax revenues to pay down the debts. But that will not happen if politicians keep spending the new revenues as fast or faster than they come in or, worse, keep implementing policies that harm, drive away, or even prevent the generation of new and beneficial revenues. Killing Canadian pipelines while buying oil at great expense that has to sail across stormy seas from sometimes questionable sources, and selling our own oil at a 43 million dollar a day discount to the US, are not policies calculated to reduce our government debt. Legalizing pot could help but only if all the net revenues are applied to the debt. If they are not, we will only be delaying, and worsening, the day of reckoning.

    One of the problems with blogs is that the issues are so complex that the relatively short exchanges do not lend themselves to comprehensive discussions. It also becomes too easy to assign inaccurate descriptors to bloggers; eg, far right, far left, haven’t considered everything, etc.

    They’re still fun though, and, with numerous people contributing, hopefully beneficial in the long run.

    Cheers.

Leave a Reply

(Your email address will not be published or distributed)