Tom Jarmyn

Transparency of Ethics Opinions

The Chronicle of Higher Education summarizes this dispute with respect to transparency of ethics opinions. William Simon has written that ethics opinions should be publicly available and scrutinized just like another academic article. This proposition has been vigorously opposed by those who are in the business of preparing such opinions. The Chronicle article summarizes the dispute nicely.

Simon is one of the legal ethicists who is predisposed toward protection of the public interest and social concerns. For him, ethics is less about protecting the legal profession and more about ensuring the that profession looks after the public interest and achieves social good. When various rules of ethics conflict with the achievement of the public good then those rules should be modified to bring the good about.

I continue to wonder whether fewer lawyers would leave the profession if it focused on the achievement of justice and the public good

I also wonder whether the Canadian Bar Association, which is essentially a lobby association for lawyers and exists to promote the interests of lawyers, should be drafting codes of conduct for lawyers or opining on what constitutes a conflict of interest. It is similar to the fox guarding the henhouse.

The importance of education to lawyers

This is an interesting article from the Manila Standard which discusses the necessity of ethics training but wonders whether starting out in law school is too late. As the author notes, in a manner consistent with Aristotle's thoughts on virtue ethics, a good character is something that begins to be formed at the earliest stages of life and that maybe it is too late in law school to try to fix this problem.

If that is so then one way to address it is to keep people out of the profession who do not meet minimum standards of ethical conduct. Possibly if we determined the what sorts of traits were characteristic of the ethical lawyer and then made their recognition and cultivation prerequisites to entry we would be more successful.

However, the other aspect of the problem is that no screening system will ever keep all of the ne'er do wells out. We must also have a system that reinforces ethics for those in the profession, that strictly and swiftly punishes transgressors and removes their ill gotten gains.

One wonders about law society disciplinary processes and where the bias in their processes is. From what I have seen their is a predisposition to protecting the rights of the individual lawyer who is accused of misconduct or failure to follow rules. My thought is that protection of the public should be the paramount interest in these processes and that there is nothing wrong with putting the burden of proof on a lawyer who is alleged to have violated standards of professional conduct. After all there is no right to practice law - it is a privilege that is earned.

New Cdn Bar Association Report on Conflict of Interests

I am just in the process of digesting the report of the CBA Task Force on Conflicts of Interest.  But my first gut reaction is that the CBA, having had their submissions largely ignored by the Supreme Court of Canada in Neil and Strother, is trying to put the genie back in the bottle.  It seems that they have done some good work on duties after termination of a retainer which was really undefined.  But I am afraid that they have really undone that good work by trying to assert the proposition that lawyers can act against current clients.

At p. v of the report the task force falls for an amendment to law society rules that would:

4.   provide that a lawyer may act in a matter which is adverse to the interests of a current client provided that:
     a. the matter is unrelated to any matter in which the lawyer is acting for the current
client and
     b.  no conflicting interest is present;

This is unreasonable.  Lawyers should not be permitted to act against the interests of present clients.  Simply by virtue of that representation a lawyer gains personal information about his/her client.  S/he learns about frailties and sensitivities.  S/he also cannnot be certain that the matters will not be related at some time in the future. 

I could understand a rule that attempted to deal with a situation where it was not apparent that the interests were adverse and therefore a benchmark needed to be established as to how and when a lawyer would be required to terminate a relationship or carry on.  But establishing a broad rule that permits a lawyer to act against a current client is over the top.  I presume then, that if a lawyer acts against a current client on the grounds that there is not conflict of interest and that lawyer turns out to be wrong, that the lawyer will be prepared to reimburse all of the fees paid and be responsible for the damages flowing from their misjudgment.

The other part of the discussion about engagement letters was essentially - really good idea but we are not certain that it would be convenient for lawyers.  Funny, I used engagement letters for all of my clients.

The Big Sort

The Big Sort is a book that discusses the segregation / segmentation of American Society.  The theory is that since 1965 there has been a significant pattern of internal migration so that people with like values have tended to move to communities with other people of similar values to them.  The authors then argue that the political divide has developed as a consequence of this.

Although I think that they argue their case well in terms of establishing that this has occurred - the authors do not make arguments as to how we will bridge the divide and deal with the fact that  (as they note) when like thinkers gather together they tend to move to the extreme of their values because of the comfort provided by near unanimity.

Terrorism and Law

Philip Bobbitt's most recent book Terror and Consent is an interesting discussion of how we have to develop a new conception of the relationship between law and strategy that reflects our changing political environment.  I am not convinced that everything needs to change but he does compellingly make the point that the activities we characterize as 'terrorism' are fundamentally different from the activities we called terrorism in the '70's and '80's.  Al Qaeda is not the same type of organization as the Red Brigades or even the IRA. 

Bobbitt's thesis is that there has been an evolution in the nature of the state from the nation state, aimed at protecting and providing for the welfare of citizens, to the market state, aimed at providing opportunities and choices for citizens.  He argues that terrorism is now aimed at eliminating the state of consent that is fundamental to the market state.

Interestingly he also notes that this state of consent can also be eliminated by the inability or unwillingness of governments to address natural disasters or the predatory acts of other governments towards their citizens (Darfur).  He advocates the establishment of a robust legal regime that establishes a principled basis to resist terrorism and to intervene in other countries when it is apparent they are preying upon their citizens.

One area that Bobbitt goes to far in is the evolution of war.  He seems to be suggesting that terrorism is fundamentally altering the nature of war from state on state aggression to state on sub-state actor.  I can agree that we need a legal regime that conceives of the state on sub-state relationship but I do not think that we can conflate that with state on state aggression.

State on state aggression remains a fact of life (Russia - Georgia, India - Pakistan for example) and any doctrine which envisages intervention against states acting against their citizens will only make it more so.  The possibility of state on state aggression will also colour relationships with Iran and China over the next 20 years.

But Bobbitt does raise the interesting question:  How does a state react to an organization like Al Qaeda which has 1) declared war on the West; 2) has its own sources of funding through commercial dealings and charitable contributions; 3) has its own body of law (Sharia law); 4) millions if not hundreds of millions of followers; and, 5) its own military?

Values and the conduct of legal proceedings

Is there a correlation between the values of legal counsel and the way in which they conduct legal proceedings?  In other words 'Do personal beliefs of legal counsel affect the way they prosecute claims?'  The reason this question is important is that if there is a correlation then we could the system could affect things like bringing forward obviously implausible claims, lengthy trials and other unwanted conducts by changing those values through education, training or sanction.

Libertarian Paternalism

I just finished reading Nudge.  This is a book by Richard Thaler and Cass Sunstein on the architecture of choice.  The basic theory is that individuals are forced to make choices in many situations.  Their choices are limited either by inertia, asymmetry of information, bias or presentation of information by a party who will benefit from the choice.

One of the examples they point out is that we all know that we should save for the future but the default option is for us to receive all of our pay cheques and spend the money.  Their argument is that the choice could be constructed here to encourage employers to offer a default option with a level of savings.

They also point out that many studies indicate there is a preference for a choice where it is clear we are not acting alone.  Therefore we should make it clear to choosers whether they are in fact lone actors or whether there are other similarly situated individuals.

Sunstein and Thaler posit that it is government's role to make sure that choice is available to people, that choosers are provided with accurate information and that in situations where there is a default option the default should be the option which is in the best interests of the chooser.  In effect government's role is to make sure that the basis of the bargain is accurate and that where a choice will occur automatically that choice is in the interest of the actor.

The book is much more complicated than that but it is definitely a worthwhile read if one has to consider how choices are presented to people.

What is an ethical organization?

There are many statements that governments must become more ethical and there has been an increasing emphasis on ethics in the government.  Most of this is then tied into various codes of ethics and values, ethics training and accountability training.

However, if a moral dilemma is considered to be a moment when one is forced to choose between two equally meritorious alternatives then this is not very useful.  In fact, it appears to me that these codes and training packages are aimed at removing choice from employees.  They appear to be an attempt to codify every practical choice that an employee could have and to provide a hierarchy for those options that will eliminate the possibility of any moral dilemma,

There are three difficulties with this sort of approach: 1) by removing all choice from employees and categorizing as much as possible we prevent employees from gaining the skills of evaluation of outcomes and coming to judgments with respect to relative merits - particularly troublesome for situations not covered by the code; 2) we also attempt to force employees into choice sets which may be appropriate in most circumstances but are inappropriate for some circumstances; and, 3) by conditioning employees to believe that everything can be resolved by the code we do not equip them to recognize an oncoming moral dilemma until it is to late to resolve.

A better approach might be to give training in the handling of moral and ethical dilemmas and broad statements of objective and then to develop programs to monitor how employees handle these situations.

Have conservatives given up on doing good?

I was at a a social technology training conference at the MARS centre in Toronto last week.  It was a very interesting and useful conference.  However, what struck me as the most interesting thing were the people in attendance.  They were all very good people who were very committed to doing good on various things - food, environment, poverty, technology, etc.  After a day or two it became rapidly apparent that I was the only one in the room of a conservative philosophy.

It seems that conservative actors have focused on the economic issues and stopped asking the question about how they can do good in society.  Alternately, there may be groups of conservative people who are unwilling to come out and identify themselves as conservative.  Or, maybe conservatives just do not get invited to conferences like these.

The interesting question is how do conservatives regain the agenda of doing good and of values that mean something to everyday working folk.  The conservatives that I deal with on a daily basis are as concerned about their neighbours as anyone else but they just want to address the problems themselves rather than have some bigger government solution.

The question is how do conservative groups regain their focus on doing good as opposed to being solely associated with economic and crime issues?

Professional Responsibility

I am attending a conference on Social Technology for the non-profit sector in Toronto.  Which got me to thinking how things might be different if we treated matters of professional responsibility as a collaborative exercise among citizens.  The Canadian Bar Association's Code of Professional Conduct says that the overriding purpose is the protection of the public interest.  Similar statements are contained in the enabling statutes for the various provincial law societies.

Would things look any different if there was a broader participation in the writing and adjudication of professional codes of conduct?  Could we end up with a situation in which there were tiers of assessment of conduct?

For example, we already have four tiers of assessment for conduct: 1) the marketplace - client's do not go to lawyers who have a reputation for treating clients poorly; 2) the discipline process; 3) civil court where clients pursue remedies for wrongs to them; and, 4) criminal court where the state pursues remedies with respect to conduct that is particularly egregious (criminal).

Is there a place for a tier between the market and the discipline process which has objective standards but is much more focused on how lawyer's conduct themselves in society.  That market is imperfect in that it is very difficult to get information about lawyers beyond whether or not they have been disciplined and are in good standing.  Information about reputation is hard to come by.  Is there some more relevant vehicle of looking at these matters.