Book Review: Fighting Fair – Legal Ethics for an Adversarial Age

Fighting Fair—Legal Ethics for an Adversarial Age, by Professor Allan C. Hutchinson, Osgoode Hall Law School, York University, Toronto; publisher, Cambridge University Press, 2015, 125 pages + index.

On December 2, 2015, I attended Professor Hutchinson’s book launch at Osgoode Hall Law School’s downtown Toronto facility. The result is this book review of, Fighting Fair—Legal Ethics for an Adversarial Age.

Professor Hutchinson begins (page 2):

“… . Lawyers have acted in ways that either ignore the public aspect of their professional status or, more cleverly, interpreted that public dimension as being consonant with the business interests of the profession. This is an ethical failure of considerable magnitude. In such a climate, it is not surprising that there are increasingly urgent calls for a more ethical practice of law as well as a more compelling theoretical account of legal ethics. In short, the legal profession is being asked to put its ethical money where its professional mouth is.

“… . There needs to be a sea change in the theory and practice of legal ethics and professional responsibility.”

The established view of ethical lawyering is that lawyers serve the legal system and “justice” best when they judge neither their clients’ moral worthiness nor their causes. But so governing that difficult ethical space between moral considerations and the required professional role, leads to (pp. 19-20):

“… lawyers acting as the pilloried caricatures of common perception. They massage rules, distinctions, meanings and facts to serve their clients’ purposes. Indeed, on extreme occasions, they might well be empowered to lie (i.e., asserting false statements) and cheat (i.e., advancing unreasonable and unverifiable claims and defenses) on behalf of their clients. Under the traditional account of legal ethics, personal vices might well be tolerated or even celebrated as professional virtues. This is a far from edifying, let alone inspirational account of legal ethics and professional responsibility.”

[However, the footnote to this passage states: “The origins and justification of this image are very much tied in with the operation of the criminal trial process. Indeed, if there is any ethically compelling purchase for this model, it is to be found in the role of criminal defense counsel.” (citations omitted)]

So, is lawyering only perchance an ethical undertaking?

Professor Hutchinson’s book provides substantial support for the argument that there is a need to remove the differences between “the good lawyer” and “the ethical lawyer” created by the traditional view of the model lawyer. His conclusion states (p. 125):

“The central and connecting theme of this book has been the need to impress upon lawyers that they are part of a justice system, not only a legal process. They are accorded the privileges and power that they have on the condition that they assume duties and responsibilities that serve the public interest; this is different from satisfying people’s private interests, including and especially their own, or from the public interest being merely the sum of private interests. In an adversarial age, lawyers can still fulfill their professional duties with fairness and justice. It is not so much that lawyers must be adversaries that is the central problematic, but more how lawyers can be adversaries and still meet a high standard of ethical behavior. By abandoning the role of hired guns and thinking of themselves as honorable warriors, lawyers can develop a mentality and pattern of conduct that is more conducive to achieving an ethical and proud standard of professional esteem. By so doing, lawyers will not only advance better the social cause of justice, but also enhance the reputation of their profession.”

This book deals with (at pp. 35-36; 122-124) ethical conflicts such as that in Spaulding v. Zimmerman, 116 N.W. 2^nd 704 (Minnesota, 1962). Z’s lawyer obtains a medical report that shows that S has an immediately life-threatening aneurism as a result of a car accident in which Z is at fault. S’s doctor missed it in his medical examination. Although the report is confidential, Z’s lawyer has a duty to produce it if requested by S’s lawyer. No such request is made. Can or should Z’s lawyer voluntarily give the report to S’s lawyer? If he does not, S might die without the necessary surgery. But if he does, S’s damages claim against his client Z will increase substantially.

There is sharp debate as to what to do if Z insists that his lawyer keep the report confidential and not disclose it to anyone. If not disclosed, S’s lawyer and doctor will have to live with the consequences of their own negligence.

The moral response is that the report should be disclosed, but Z’s lawyer would risk professional disciplinary proceedings. Legal ethics require lawyers to exclude such moral concerns from their professional lives. As long as a lawyer acts within the law, his/her actions may not be evaluated in ordinary moral terms. But Professor’s Hutchinson’s response is (p. 123):

“… traditionalists offer no reasoned basis or argumentative resources on which lawyers can rely in arriving at such decisions as professionals. In short, the traditional approach to professional responsibility is simply not up to the task of unpacking and confronting some of the compelling issues that might arise for the legal professional in search of ethical guidance.”

Is that the same as saying in more general terms, that if the rules of professional conduct were laws, many of them would be “void for vagueness,” or in need of express additional “reasonable limits prescribed by law”? For a recent examination by the Supreme Court of Canada of the void for vagueness doctrine see, R. v. Levkovic 2013 SCC 25 (CanLII), [2013] 2 S.C.R. 204, which reaffirms that it is a doctrine of the rule of law, and of “fundamental justice” now enshrined within the Canadian Charter of Rights and Freedoms, section 7.

The method of developing the theme of this book is a comparison with military ethics (p. 54):

“… . While the exploration of the ethics of warfare might seem like a strange and unpromising detour, I will show how a substantial appreciation of military ethics can contribute to a genuine bolstering of the appeal and force of legal ethics in an adversarial system. Indeed, the turn to military ethics is much more promising than other recent efforts to reinvigorate legal ethics. … ‘it is a popular, but gross mistake to suppose that a lawyer owes no fidelity to anyone except his client [who is] the keeper of his professional conscience.’” (footnotes omitted)

And at page 88:

“The basic thrust of military ethics is that any and all violence in war must be justified: it counsels a minimalist approach. No matter how just or worthy the cause undertaken, the prosecution of a just war demands that only just methods be used – the moral defensibility of the ends do not justify the resort to any possible means to achieve them. Moreover, the ethical focus is on both the why and the how of military action. Intentions and consequences must be evaluated together.” (footnote omitted)

And (pp. 99-100):

“… . However, the real benefit of using military ethics as a filter through which to view legal professional responsibility is that it demands that lawyers take non-clients into direct account when advancing the interests and wishes of their clients in a proportionate way.

. . .

“… . As one military code puts it, ‘belligerents … conduct hostilities with regard for the principles of humanity and chivalry.’ This, of course, has its more focused analogue for lawyers in the need not to bring the administration of justice and the legal profession into disrepute.” (footnote omitted)

And therefore, chapter 7, entitled “Fighting Fair,” ends with this statement (p. 109): “An ethical lawyer should be concerned to promote the reputation of the justice system and the legal profession; it is not enough simply to avoid bringing it into disrepute.”

The concluding chapter, “Not-So-Final Thoughts,” chapter 9, contains these statements in its second paragraph (p. 118):

“By way of remediation, I have recommended that military ethics has substantial, if surprising potential to improve matters. … In particular, it can help lawyers to develop the moral sensitivity, moral judgment and moral conviction necessary to make a better and more ennobling job of fulfilling their professional role and responsibilities.

The importance of this book is augmented by the fact that lawyers increasingly have to deal with, and be opposed by people without lawyers. That should increase the justification for making it part of Continuing Professional Development (CLE) Programs, and compulsory reading by all students who will be applying to law societies to become lawyers. Professor Hutchinson states (p. 103):

“… . Most significantly, it will act as a suitable corrective to the win-at-all-costs mentality that any honorable lawyer or warrior ought to reject.

“These already challenging matters – Are there any duties or responsibilities owed to opposing parties? What are they? And what are their limits? – are made doubly difficult if the opposing parties do not have the assistance of a lawyer. These so-called self-represented litigants are becoming increasingly common in court proceedings. While there are a whole host of reasons for this disturbing trend, it is estimated that about 40 percent of all litigants are self-represented; this can rise to close to 80 percent in family law matters. One of the many challenges that this phenomenon poses to traditional thinking on legal ethics is the effect on the accepted behavior of lawyers who must litigate against such people. Although the focus has tended to be on the mediative role and responsibilities of judges and decision makers in such contexts, there is a special burden on lawyers. Again, when dealing with the ethical dilemmas associated with litigation involving self-represented parties, it seems even more fruitful and sensible to deal with this as part of counsel’s general duty to the court and the fair administration of justice. As with many other matters, this will not work as a competing duty, but will serve as a check on lawyers’ important duty to represent their own clients’ interests in a forthright and loyal way.” (footnotes omitted)

And Canada’s law societies should consider whether their rules of professional conduct need altering as to the ethical responsibilities of lawyers when opposing self-represented litigants (SRLs). (Many of Professor Hutchinson’s footnotes cite the Model Rules of Professional Conduct, and the Canadian Bar Association’s Code of Professional Conduct.) SRLs are among the great and growing majority of taxpayers who pay for the justice system whereat lawyers earn a much better living than do those taxpayers on average. Given the high percentage of SRLs, there is a need for an SRL counterpart for many of the rules that Professor Hutchinson cites.

See also the recent article by Alice Woolley, Professor, Faculty of Law, University of Calgary, “The Lawyer As Fiduciary: Defining Private Law Duties In Public Law Relations,” Volume LXV, Number 4, Fall 2015 University of Toronto Law Journal 285. She states: “The lawyer-client relationship operates at the intersection of private obligation and public duty, and the scope and force of the lawyer’s fiduciary duties reflect that intersection.” And see also the collection of articles concerning the lawyer’s role, in Volume LX, Number 4, Fall 2010 University of Toronto Law Journal 983-1030. The lead article is by Professor Woolley, dealing with these issues: “… first, what is the ‘standard conception’ of the lawyer’s role? Second, what is the relationship between the standard conception – the conception of the lawyer as a partisan advocate for her client, neutral about (and unaccountable for) the morality of her client’s aims – and the claims of morality more generally? And third, given that relationship, can what lawyers do be morally justified? Or should what lawyers do be changed?”