Tom Jarmyn

David Luban's Legal Ethics and Human Dignity

David Luban is one of the leaders in the field of legal ethics.  He approaches the field from a foundational perspective - asking questions about why the legal system operates the way it does and the values that are implicit in the operational choices that we make.  Last year he wrote Legal Ethics and Human Dignity.

Cornell University has now released its colloquom on that book and included a reply from Luban.  Well worth the read for anyone serious about the field.

Steve Coll is a Brilliant Writer

This analysis, by Steven Coll of the New America Foundation which will run in the New Yorker, of the situation Iraq and General Petraeus has nothing to do with legal ethics but is brilliant piece of work.

Does an Ethical Lawyer commence an Action that is likely to fail?

There are various answers to this question.  One is that the lawyer is an agent of the client and therefore absolved of responsiblity.  Another is that the lawyer should consider the justice of the situation and the purpose of the litigation in answering that question.  A third says that the lawyer should ensure the client is fully apprised of all aspects of the matter and allow the client to make the decision.

But what happens if the law firm commencing the action is acting on its own behalf.  This question arises in litigation commenced by the law firm Jones Day and reported by the Citizen Media Law Project.  Two associates of Jones Day purchased condominiums in expensive neighbourhoods.  Those purchases were reported by an online newsletter, Blockshopper.  In the reporting Blockshopper included links to the associates profiles and to the Jones Day website. Jones Day sued alleging various forms of trademark infringement and appropriation.

I am not a trademark lawyer but on its face the claims appear fairly spurious.  Other reviewers (here and here) have carried out a deeper analysis which suggests that the claim has a low probability of success.  Jones Day the law firm is acting for Jones Day the client in a proceeding which appears designed for the purpose of intimidating people to not report truthfully (note there are no allegations the information was inaccurate) on the actions, operations or dealings of Jones Day.  This appears ripe for an inquiry into the motivations behind the commencement of this action and whether it was brought for an improper purpose and, if it was, then Jones Day will not be able to hide behind the agent for the client defence.

The Requirement for Good Character

This article by Jocelyn Stacey and Alice Wooley (h/t to Legal Ethics Forum) is an interesting discussion of whether the character requirement for admission to the Law Society should be made explicit.  Right now it is an implicit requirement and character is given various degrees of weight.  The paper argues that the basis for the requirement is a weak one.

However, if we were to adopt an approach to legal ethics based upon the idea of individual moral autonomy (of which William Simon is the primary proponent) then character would become much more relevant.  In that type of system rather than promulgating detailed rules lawyers would be asked to exercise their own judgment about right and wrong and the nature of their activities in the course of representing their clients.  Their ultimate objective would be to seek to do justice.

Under this type of approach the rules then form a rebuttable presumption of conduct.  Lawyers would be expected to behave in a certain way unless they could establish that the values inherent in the rule and the greater objective of justice would not be served by the prescribed conduct.  Good character would be an essential element of the operation of this sort of system.

Nova Scotia Civil Procedure Rules

The Nova Scotia Barrister's Society is starting a project to put a set of annotated Civil Procedure Rules online. The Rules are undergoing a total rewrite that will come into effect on January 1, 2009.

I have not read them in detail but a couple of things that I like on first blush are reasonable attendance fees for non-party witnesses (expenses plus $35 per hour) and a clear write of summary disposition for both plaintiff and defendant.  They have also broken the summary disposition away from the old frivolous and vexatious rules.

However, we must lament the demise of the Application Inter Partes in favour of the Interlocutory Motion.

Solicitor Client Communications

This article on the Legal Ethics Forum is an interesting discussion on an aspect of solicitor client communciations that we do not often consider - what is a solicitor obliged to tell his/her client.  Some form of standard disclosure to clients that is appropriate to the practice area would be very helpful.  Afterall there are standard form reports on many services.  

It is also very difficult to get information about lawyers from reliable sources - therefore it seems reasonable for Law Societies to place a mandate on lawyers to honestly disclose (and make reasonably available) certain items of information to all clients.  Year of admission to the Bar, number of discipline complaints, in commercial transactions degree of malpractice coverage, approved certifications would all seem to be reasonable pieces of information that clients need to know.

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.

US Politics

I find it difficult to understand how the candidate of a Party that has been in charge for the past 8 years can then claim to run on the message of change. That fundamentally suggests that there has been something wrong with the past 8 years - a perspective with a lot of validity with respect to economic matters.

Given this difficulty with the change message the selection of Governor Palin is even more questionable. If anything she, as Mike Murphy points out Time polarizes the electorate and therefore detracts from the change message. Some may argue that she has common values but I suggest that she takes the campaign away from whether Senator Obama can deliver on change and returns it to the us versus them of 2004. And today at least, us vs. them has the Democrats running ahead of the Republicans.

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.