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Law Students, Lawyers, Legal Ethics

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All,

Over on The Court, one of the student-editors wrote – the context of the discussion was the SCC’s refusal to grant leave to the foreign tobacco companies to dispute jurisdiction in Imperial Tobacco (2) –
As I said, I cannot speak for the company or its intentions. I am only saying that from where I stand and from my limited understanding of the issues raised, it appeared very difficult for their appeal to succeed. That does not make their application frivolous and it is not like there were no legitimate issues raised in the application. Further, I am sure that the companies DID (very much so)want their application to succeed. But looking at what the SCC said in its earlier decision, if I was in their shoes, I would have thought the chances of success to be slim. Now if they want to spend their money to take that chance, then that is a perfectly legitimate exercise of their legal rights.

I pushed him to that qualification. His earlier statement left it open that he thought the leave application was a legitimate exercise, etc., even if the companies and their lawyers believed the application was frivolous. Truth is that any lawyer who advised the companies that there was a snowball’s chance in hell of the leave application succeeding – short of all nine judges walking to Damascus and changing their names to Paul/Pauline – would be dishonest or incompetent or greedy or all three.

I’ll take him at his word on the qualification since I’ve no basis for assuming otherwise; however I’d have hoped for a stronger “if it’s frivolous they shouldn’t have … response” added to the concession he wasn’t certain of the merits of the leave arguments. So, I challenged him there to see how he’ll respond.

My question – because it’s something I’ve seen too often the past decade or so in the areas within which I practice, from the newly graduated – is whether there’s an “it’s ok if you can get away with it: meaning you won’t get caught or if you do the punishment is tolerable” attitude pervasive amongst current law students. Let’s face it – that’s exactly what happens to the inside traders etc. If so, how are the legal ethics profs handling that attitude?

Some of you might have heard about the discovery, in late SCOTUS Justice Blackmun’s papers, of a “grading sheet” he kept on the performance of lawyers appearing before SCOTUS. Some of the lawyers are now on that bench. They didn’t get good marks. I mention this because, in following the story along the blog-line, I saw this on what I understand to be a well-read US blawg / law-news source (on www.law.com). The writer is discussing the efficacy of oral argument before SCOTUS

However, a persuasive and well-written appellate brief along with a compelling oral argument do not guarantee victory on appeal. This is because the facts of the case and the law applicable to the case are capable of thwarting even the most effective appellate presentation imaginable.

Indeed, it is my view that judges are supposed to decide appeals based on the merits of the issues being raised, the facts of the case and the applicable law, rather than based on the quality of the briefs and the oral arguments. And I believe that every appellate judge would agree that, although effective appellate briefs and oral arguments are surely desirable, cases on appeal must be decided as the facts and the law compel, even if the less talented advocate wins as a result.

The emphasis is mine. It’s his view? Is there a valid contrary position? Is he implying there’s a contrary position out there that’s recognized as having any possible merit at all? I suppose the US “realist” philosophy underpins the phrasing implying that it’s not certain that judge will follow the law. And stating only that “he believes” judges wold agree that the law and facts must prevail over advocacy.

Do you think that any member of the Canadian profession (professor, lawyer, judge) would find it necessary to suggest that it is his or her own view that the cases are supposed to be decided in accordance with law or fact, not based on advocacy? As if there could be another correct approach to how to decide the case? I suppose I have to quote the BCCA ‘s (sometimes iconoclastic) Southin JA, again,

In Reilly v. Lynn 2003 BCCA 49 at para. 92, Southin J.A. (dissenting – the majority specifically disavowed these comments), discussing the scope of appellate power to review lower court findings of fact, wrote: “So far as I am concerned what underlies my raising this point is that I have concluded that justice, in the broad sense, is served more often by getting the facts right than by worrying about what the law is.”

Still, hoist by my own petard, no?

I think this issue is an aspect of the ‘how to better teach law students to research and understand’ question. There’s an ethical issue in incompetence, too. Situations that produce comments like this shouldn’t occur: Wilson v Bobbie 2006 ABQB 22 (CanLII) at para 42.

[42] Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all), neither party is entitled to costs of this motion.

Leave it that the issue wasn’t one on which it was plainly obvious that case-law wasn’t needed and wouldn’t exist.

David Cheifetz 

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