What Should a Code of Conduct Do (Or Not Do)?

Lately I’ve been spending a lot of time with law society codes of conduct. Not because I’m a law nerd (although I am), but because I’m preparing the second edition of my book Understanding Lawyers’ Ethics in Canada. Much of the time I’m impressed with the codes. They provide clear and helpful guidance to lawyers on a number of important questions of practice, such as how to manage a joint retainer, or withdrawal from representation in the context of a criminal trial. A lawyer trying to answer a question about her duties should start by consulting her law society’s code of conduct.

At the same time, however, the codes of conduct contain a number of provisions that really bother me. Specifically, they contain provisions that are at best unhelpful and, at worst, dishonest about what lawyers do for their clients, and what they are obliged to do for their clients. Take for example Federation Model Code Rule 5.1-2(b), which tells a lawyer that when acting as an advocate she must not “knowingly assist or permit a client to do anything that the lawyer considers to be dishonest or dishonourable.” I may be willing to grant the dishonest part, particularly when combined with “knowingly”. It is clear, for example, that a lawyer must not knowingly assist a client to lie to the court or to others. Although even there I am somewhat troubled by the phrase “the lawyer considers to be dishonest;” I would have thought in the context of advocacy a lawyer ought to have some objective basis for knowing that the client is being dishonest, rather than simply making a subjective assessment about whether she “considers” her client to be dishonest. However, I can live with that – the general rule is sound, even if inartfully expressed.

But what does dishonourable mean? Seriously – in a modern, urban, pluralistic society, what does it mean to act “dishonourably”? The whole idea of honour is imbued with an historical, privileged and – I think – masculine ideal that seems unlikely to create any intuitive direction towards right conduct for a modern lawyer. And to the extent dishonour has meaning, that meaning seems likely to be more specific and subjective than general and objective. I might think it is dishonourable to divorce your spouse of 30 years who deeply loves you even if he doesn’t truly understand your devotion to yoga, but others would see that decision quite differently, as a legitimate pursuit of self-actualization. What kind of meaningful guidance does a direction not to help my client act dishonourably provide to me? None. And – worse – what guidance ought it to provide to me? Ought I to tell the yogi that I won’t help her obtain her divorce? Of course not. So why do we have a rule which in any way suggests that I should?

The rule is at best unhelpful and at worst misleading. But it has another aspect I think corrosive. It makes a claim about lawyers, and what we do, that means that when lawyers do the things they are actually required to do – such as cross-examine victims of a crime to challenge their credibility – those lawyers cannot use the statement of their professional duties to explain and justify their conduct. While the cross-examining lawyer may be able to note that the ethical boundaries on cross-examination are not to “needlessly abuse, hector or harass a witness” (Rule 5.1-2(m)), and to argue she stayed within that constraint, she remains stuck with a statement that her role precludes dishonourable conduct.[1] And as I’ve noted, dishonourable is a big enough word to create an infinite array of sins, certainly an array large enough to include making a victim feel humiliated or disbelieved. Or representing a client who is a bad man. Or pursuing a lawful but morally dubious claim. The work of a lawyer requires her to do things that could plausibly be described as dishonourable. When we claim that lawyers have a duty to do otherwise, a duty not to help their client be dishonourable, we push their conduct outside of our definition of the role that it in fact properly falls within.

Other similarly rant-worthy rules include the duty to act “honourably and with integrity” (Rule 2.1-1) and to uphold the “reputation of the legal profession” (Rule 2.1-2, which has a host of other issues).

Codes of conduct should guide lawyers. They should articulate lawyers’ duties, both specific and general. But they should not make meaningless, dishonest and unhelpful statements that say that lawyers ought not to do things that their representation of their clients – at least sometimes – requires them to do.

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[1] I recognize that technically it only precludes helping a client act dishonourably. But surely that includes the lawyer herself acting dishonourably in pursuit of a client’s cause.