Lost in Translation? Differing Perspectives on Legal Ethics
As a first post on legal ethics, it seems appropriate to ask “what exactly are we talking about”. The answer isn’t as simple as one might think given the number of different perspectives involved.
Courts set (or reflect) legal ethics in cases involving lawyers. Law Societies set legal ethics in codes of conduct and in discipline cases. Legal scholars posit appropriate legal ethics, either as a matter of formal legal reasoning or from varying philosophical perspectives. Practising lawyers develop their own sense of legal ethics in part from these other sources and in part from their participation in the legal culture in which they practice. And there are of course broader ethics applicable in society generally– some of which are quite different from legal ethics.
Having come late in my career to thinking about and working in the field of legal ethics, one of the surprises for me was an implication of these disparate perspectives. It is not uncommon for discussions about legal ethics to be inadvertently at cross (or at least different) purposes. Participants in the discussion think that they are talking about the same things but that isn’t always so.
The oral argument in McKercher provides a recent example. At immediate issue was whether the so-called “bright line rule” first articulated in Neil is a categorical rule or a presumptive rule. In other words, can a lawyer act “directly adverse to the immediate interests” of a current client where there is no real risk that representation undertaken by the lawyer for that current client will be materially impaired. This is one of the most controversial current issues in legal ethics for Canadian lawyers.
But before the court, this issue is analyzed as a matter of fiduciary law rather than legal ethics per se. Fiduciaries have long been subject to a duty to avoid conflicting interests. Justice Binnie, in Neil, articulated the “bright line rule” as part of fiduciary law. But fiduciary law is not just about lawyers. Fiduciary law has its own internal structure and perspective and applies to all manner of fiduciaries.
Other questions of legal ethics have been analyzed differently by the courts. In MacDonald Estate, the circumstances in which a lawyer can act adverse to a former client was addressed. This question was not analyzed as a matter of fiduciary law but rather as a matter of protecting the integrity of the administration of justice in proceedings before the court. The Supreme Court concluded that the integrity of the administration of justice required that litigants not be required to suffer the risk that their confidential information would be used against them in adversarial proceedings .
So why does this difference in legal approach matter? It is because the structure, scope and purpose of fiduciary law is quite different from that of the law protecting the administration of justice. Fiduciary law has a very broad scope with lawyers only being one class of fiduciary. In contrast, the protection of the administration of justice has a much narrower focus affecting only some of what some lawyers do. When judges apply these quite different jurisdictions, the implications for future cases will be quite different as are the considerations at play in the particular case.
For legal scholars, their approach to these questions of legal ethics depends on their academic focus. Fiduciary law scholars and legal ethics scholars consider the same questions from quite different perspectives. The legal ethics scholars are generally, I think, not much interested in fiduciary law as such. Their scholarly interest is understandably about “how lawyers should act” rather than “how fiduciaries should act”.
Legal ethics scholars and law societies have essentially the same scope of interest. Both are properly concerned with what lawyers should do in all aspects of legal practice. Both seek to ensure that clients are properly served by their lawyers while also seeking to ensure that the legal system operates properly. There are naturally a range of views about how the legal system should operate and what realistically may impair that operation. These different views animate important debates such as the current controversy about civility.
But back to McKercher and further back to Neil. It is noteworthy that Neil articulated a general rule as part of fiduciary law yet Neil was not a fiduciary law case. At issue in Neil was whether an accused was entitled to a stay of proceedings because his former counsel acted in a conflict of interest. The essential question in Neil was whether the proper administration of justice required that criminal proceedings be stayed. The lawyer/fiduciary was not a party to the proceeding. No fiduciary remedy could have been granted. Yet the reasons in Neil are mostly about fiduciary law. While never said or justified, the articulation of a fiduciary current client conflict rule was presumably on the view that fiduciary law could properly be used to elaborate detailed general rules of conduct for lawyers in all areas of practice and not just in cases involving matters before the courts.
Much of the debate in oral argument in McKercher and elsewhere has addressed the nature of a proper current client conflict rule. The nature of the bright line rule is of natural interest of legal ethics scholars, law societies and practising lawyers. All of the participants in the McKercher appeal addressed this issue. It remains to be seen how the Supreme Court will address this issue.
But perhaps of greater importance is the proper role of fiduciary law and the respective roles of the law societies and the courts with respect to professional conduct. Unfortunately, there were limited submissions on these issues to assist the court. It will be most interesting to see how (and if) these foundational issues are addressed.
In the interest of full disclosure, I acted as counsel to the intervener Canadian Bar Association in McKercher.
Welcome aboard, Malcolm! Now that you’ve got your columnist’s neutral, on-the-one-hand, on-the-other-hand analysis out of the way, would you like to tell us the submissions you made on behalf of the CBA? That might give readers who won’t bother to go to the factums enough material to launch an engaging discussion here.
I feel like cracking a small bottle of sparkling wine over the bow of the HMS Ethics. Malcolm, your first article is a respectable, conservative launch but I am eager to get a tour of the engine room and see how this ship works. We need you to navigate us through your CBA submission in McKercher and offer us some onboard credits which might generate substantial slawitter.
Hello Malcolm,
If somebody had asked me, I’d have said that legal ethics scholars are interested in every aspect of law, prescriptive, descriptive, moral, or otherwise that might regulate a lawyer’s conduct in a particular sitution.
Perhaps I’ve misunderstood what “not must interested in [adjective] law as such” meant as you used it, or as the phrase might be used.
Or, perhaps, I’m a dinosaur (hiding from the next meteor strike).
Regards,
David
I watched 90 minutes of the 243.45 of the oral argument and realized the Justices were asking the same question over and over “show us the evidence of direct adverse effect” in this case of accepted rules vs. justifiable rules as the test of rightness. The first proposition is that the duty of loyalty (fudiciary) includes “consent and disclosure” and some form of an agreement between the lawyer and his client that it is Ok if you drop me as your client and then file a lawsuit against me. The second proposition is a legal precedent under the “bright line rule” that has been interpreted to read, my lawyer doesn’t need my consent to act against me as long as he/she doesn’t create a substantial risk that could materially impair me (stop the clock).
Malcolm, in order to get a clearer idea of the kind of “set of rules that right actions must conform to” would you suggest that I watch the other 153.45 minutes of the oral argument or will you show me the money?
Webcast Time 125.43/243.45 A Question of Moral Obligation: Loyalty vs. Disloyalty
According to Allan Hutchinson, principled ethics is “derived from a duty or general sense of moral obligation”. This basic principle is married to the notions of constraint: one’s will being subjected to objective laws of reason but also, conformity as outlined in the CBA Professional Code of Conduct. Retired Justice Binnie said it best when he expressed concern about the “efficacy of ethical screens in the absence of informed consent from the clients concerned”. Thus far, in the proceedings, the court has little emotional material and no substantial evidence with which to determine a threshold of “direct adversity of interest” in
this case.
‘Till the next time.
Footnote: It was interesting that one of the Justices suggested that this was a quasi-legal matter which might be better addressed by the Law Society and/or the Canadian Bar Association rather than the court. One Justice wanted to know what demonstratable emotional component and/or impact could be attributed to this “adverse” retainer. I don’t know why but I kept hearing Taylor Swift’s lyrics “we are never getting back together again”. There was also some statements and questions related to necessary (strict) vs. contigent (meritorious) duty to clients vs. firm/ lawyer. And finally, the subject of the court disallowing McKercher from acting in the case was raised. This was a volley that was wisely not returned by the Bench.
I wonder why clients are free to change their legal representative but in McKercher the implication is that the duty of loyalty is excluse (without consent), even in an unrelated matter (to the other 4 cases they are handling), and in the absence of any actual or potential conflicts/adversity of interests?
It seems rather far from equal and/or just if only the client, in this case, has autonomy (can hire competing law firms) in the lawyer-client relationship.
Can the moral health and conduct of the profession be helped by the SCC ruling?
I think the “bright line rule” is a rebuttable presumptive rule.
John, David, Diane
Apologies (of a sort) for taking a “neutral, on-the-one-hand, on-the-other-hand analysis” to this topic. One of the cannons of legal ethics that was drummed into me at an early stage was that an advocate should argue the case in court and not in the press. But with that in mind, I’ll try to outline the arguments with respect to the bright line rule from as I understood them.
The essential CN position was that the court in Neil had decided that the bright-line rule was a categorical rule and that the Court of Appeal had improperly failed to follow Neil. On this basis, crossing the bright-line is by definition a breach of fiduciary duty. This was the opinion of Professor Cotter to the Federation when the Model Code was being drafted.
The CBA position is that the bright-line rule is presumptive i.e. providing a useful caution that there may well be risk of material impairment of client representation but not applying if it can be shown that there is no such risk.
The CBA position was that the fiduciary consequences of crossing the bright line had yet to be addressed by the Supreme Court. This is why it is noteworthy that the fiduciary was not before the court in Neil and the bright-line was found not to have been crossed in Strother. At a deeper level, it was argued that the bright-line rule encompasses not just where the line is found but also the sophisticated client “exception”, the limitation against “tactical” complaints and the flexibility as to fiduciary remedy. Looked at as a whole and taking into account what was said in Strother, the rule should not be seen as not categorical according to the CBA.
CN accepted in its factum that the categorical bright line rule is overbroad but argued that this over breadth was sufficiently tempered by flexibility as to remedy. The CBA position was that this was no comfort since conflicts rarely come before the courts and have to be analyzed and managed outside of the litigation process.
The reason that a categorical rule is inevitably overbroad, according to the CBA, is that only a limited aspect of the nature of the adverse retainer is considered (ie direct adversity to the immediate interests) and not the nature of the existing retainers, the nature of the client and the consequences for the client of the adverse retainer. If the mischief addressed by the bright line rule is impairment of representation by feelings of betrayal then merely considering direct adversity/immediate interests is insufficient to determine whether there is any genuine risk of material impairment. Would the McKercher case be different if it was based on a claim for lost luggage as opposed to a major class action? How about if the new retainer was not litigious but a simple non-disclosure agreement?
The CBA position as to fiduciary law was that (i) an overbroad rule (ie that applies absent genuine risk of material impairment of representation) is not properly part of fiduciary conflicts law which depends on the existence of risk, (ii) there shouldn’t be differing fiduciary laws for different types of fiduciaries and (iii) specific rule setting for lawyers is not properly part of fiduciary law but a matter assigned to the law societies.
The Federation position appeared to be that there is much value in a clear rule that is straight forward for lawyers to apply. The Federation, in oral argument, appeared to take the position that lawyers could not be trusted to properly assess the client reactions to adverse retainers and therefore that an overbroad rule is justifiable as “the price of professionalism”. The Federation did not explain why the other client should bear this price nor whether there was any actual problem requiring payment of the price of over-breadth by anyone.
Some members of the court, in questioning, asked why the decision shouldn’t simply be left to the client as a matter of required consent. As the Chief Justice put it, the problem with that approach is that “Clients aren’t always reasonable”. She then followed with the question “Is there a lot to be said for letting a client decide these matters where there is no possibility … that there could ever be any prejudice to this client’s file?”.
To answer David’s point, I expect that legal ethics scholars are interested in all things legal that might regulate a lawyer’s conduct. But my impression that they are more interested philosophical or public policy analysis than pure legal analysis. My point was that the approach of the legal ethics scholar to McKercher seems not to be “what is the proper fiduciary law analysis” but rather “what should lawyers be permitted and not permitted to do”. I’m far from saying that this is wrong; just that it is interesting.
Malcolm, many thanks for your helpful response to my queries.
In thinking about justice, I am drawn to the principle of equality. One problem I have with the bright-line rule is that it might be certain but it won’t always be equitable. Does this mean “going overboard” is not only the “price of the profession” but may actually create an imbalance in our justice system? Are we justified in treating people unequally on the grounds it should create a greater equality in the long run? I hope the SCC will exam the fine-line carefully before ruling on the bright-line.