1.

Introduction to Legal Ethics (Chapter 1)

A. Introduction
[Law Society of BC v Jabour]: Advertising; Law Society have jurisdiction to discipline conduct unbecoming
of a lawyer with respect of the content of lawyers advertising
o Facts: J was a senior lawyer practicing in North Vancouver. He advertised the services provided by his
law firm and, as a consequence, was found guilty of conduct unbecoming a member of the Law
Society by the Law Society of British Columbia. The Law Societys ability to regulate members
advertising was challenged as contrary to federal competition legislation. The challenge was
unsuccessful. In the course of its decision, the British Columbia Court of Appeal considered the powers
of the Law Society of British Colombia to regulate professional misconduct.
o Issue: Does the Law Society of British Columbia have jurisdiction to discipline lawyers for advertising
prices of their services?
o Held: Yes, the LSBC does have jurisdiction to discipline conduct unbecoming of a lawyer that could
extend to content of lawyers advertisements. It is a broad power meant to protect the integrity of the
legal profession.
[Prescott v LSBC]: Benchers of Law Society are guardians of proper standards of professional and ethical
conduct
o Ratio: The Benchers (Law Society of Upper Canada is governed by the board of directors, who are
known as the benchers) are the guardians of proper standards of professional and ethical conduct.
o One of the most important statutory duties possessed by the benchers is that of disciplining lawyers
who fail to observe the proper standards of conduct and/or ethics which are necessary to keep the
profession that very high plane of honesty, integrity and efficiency which is essential to warrant the
continued confidence of the public in the profession.
B. What are Lawyers ethics and professional regulation?
The definition of legal ethics: Lawyers ethics deals with the ethical obligations of the practicing lawyer,
both as individuals and as members of organisations. Lawyers ethics addresses the constraints on lawyers
conduct: the rules, principles and legal obligations with which lawyers are required to comply in conducting
their legal practice. It also addresses the moral or ethical aspirations of the practicing lawyer the type of
decision making process and decisions which an ethical lawyer will employ and make.
Professional regulation is also concerned with the ethics of legal practice. Its concern exists; however, at
the level of regulation and governance: how do we determine and enforce ethical constraints on lawyer
conduct? As presently structured, all Canadian lawyers are regulated in significant part through a form of

self-regulation in which the rules of ethical conduct, the standards for admission to the profession, and the
enforcement of those rules and standards, are set by lawyers themselves.
C. Sources
In determining what constitutes ethical conduct, a lawyer can look to a number of sources for guidance. These
include:
o Case law and legislation
o Rules of Professional Conduct
o Law Society Disciplinary Decisions; and
o The principles or norms of lawyering
1. Case Law and Legislation
Case law and legislation (including regulations) place constraints on what lawyers can and cannot do in legal
practice.
o The law of negligence obliges lawyers to meet certain basic standards of competence.
o The law of fiduciary duties obliges lawyers to act with loyalty in furthering the interests if their clients,
and to put the interests of their clients before those of themselves, or others.
o The law of contracts governs the specific obligations a lawyers has to a client under a retainer
agreement (whether written or oral).
o The law on taxation of legal fees, in which clients or lawyers obtain court assessment of a lawyers bill
and an order requiring the bill to be paid as assessed, provides guidance on a lawyers ethical
obligations when charging a client.
o Cases dealing with the law of evidence and, in particular, the doctrine of solicitor-client privilege, are
essential for understanding the lawyers obligation of confidentiality to clients. The rules of court and
the cases interpreting those rules have dealt with lawyer ethics in the conduct of an action.
2. Rules of Professional Conduct
Every provincial law has rules of professional conduct.
These rules are generally enacted by the law society pursuant to its legislative authority to regulate the legal
profession. The rules cover a variety of matters related to legal practice including client selection, advocacy,
competence, fees, conflicts of interest, confidentiality, advising clients, interacting with judges and the
business operation of a law practice.
Despite the law societys initiatives to create a uniform set of standards, it must be noted that in general the
rules of professional conduct are not rigorously enforced by provincial law societies.
Rules of professional conduct are therefore an important but non-exhaustive source of guidance for a lawyer
in deciding what action should be taken, and what action is required to be taken, in circumstances of ethical
uncertainty.

3. Law Society Disciplinary Decisions

Law Society disciplinary decisions are publically available through law society websites, Quicklaw and CanLII.
Disciplinary decisions provide insight into the meaning of provisions of the Codes of Conduct.
They also indicate how law societies generally define professional misconduct (misconduct by the lawyers
when practicing law) and the conduct unbecoming (misconduct by the lawyer outside of his or her legal
practice). Disciplinary decisions set out the standard of proof for establishing that a lawyer has committed
professional misconduct and the sorts of sanctions that may be imposed.
Disciplinary decisions provide, however limited guidance to lawyers because they address only a narrow
range of lawyer conduct, concentrating mostly on clear legal violations such as stealing funds from clients, or
on a lawyers refusal to comply with law society regulatory requirements.
4. Principles or norms
With respect to all these sorts of questions important sources of guidance are principles or norms that apply
to the work that lawyers do.
Principles or norms play an additional role of importance. To act ethically, lawyers need to be sensitive to
when an ethical issue has arisen; they need to have the judgment to respond to that ethical situation
appropriately, and they need to have the motivation and courage to put their response into action.
D. Some Ways of thinking about normal ethics (philosophical schools of thought on ethics)
1. Virtue Ethics
Aristotelian virtue ethics explains ethical action through the combination of human character, practical
judgment and orientation towards human flourishing.
It suggests that individuals possess virtues (or vices) which orientate them towards (or away from)
ethical conduct.
Thus, a lawyer faced with a dilemma will resolve that dilemma through exercising judgment about how
those virtues are appropriately balanced in the circumstances. The lawyer will recognise the
importance of the virtues of loyalty, honesty, care, compassion, justice and integrity to the situation,
and will exercise judgment as to what those virtues require given the particular circumstances.
o EX: To understand virtue ethics, consider the following problem: Jack and Jane both work for a
government agency responsible for combatting terrorism. The agency has apprehended X, and
has excellent grounds for believing that X and others have been conspiring to set off explosive
devices at the Canadian National Exhibition on the following day. Xs co-conspirators have not
been found. X refuses to talk. Should Jack and Jane torture X to obtain information to prevent the
execution of the conspiracy?

Answer: A virtue ethics based response to this problem would consider it through the applicable
virtues which might include, respect, dignity, compassion, justice and fairness. It would then be
assess the facts and how different responses to the facts (torture or not) would accord with the
virtues. The ethical answer to the question would be that most consistent with the pursuit of the
virtues as properly assessed through the judgment of what the facts require.
2. Utilitarianism (Consequentialism)
Utilitarianism rests on the premise about human beings want to maximise their self-interest and will
seek to do so. Humans possess instrumental rationality they can identify and will act to pursue their
own interests. Utilitarianism also asserts the additional premise that a society in which overall human
interests are maximised is the best society. The general aim of a society should be to achieve the
greatest good for the greatest number.
For the utilitarian, the most ethical action is that which is likely to do the greatest good for the greatest
number, or, where that is not possible, to do the least amount of harm to the fewest number of ppl.
Furthermore, in its most sophisticated forms, utilitarianism is not so much a means of reaching ethical
decisions as it is a way of judging whether a decision is ethical. However, if after the fact it is apparent
that an action has had terrible consequences, those consequences justify assessing the action as bad
or unethical.
o EX: To understand the application of utilitarianism, consider again the Jack and Jane torture
hypothetical. The utilitarian analysis of the problem would require consideration of the
consequences of the torture choice. What would happen to X, to Jack and Jane and to others if
they torture X? What will happen to X, to Jack and Jane and to others if they do not torture X?
What are the consequences of a rule prohibiting torture in this situation?
o Answer: The ethical response should aim to maximise the positive consequences, and minimise
the negative consequences, that are possible given the facts at issue, and given the rules that
could be developed to decide what to do in the face of those facts.
3. Kantian/Deontological Theories of Right of Action
Kantian theories are strongly rule-based; they assert the possibility and necessity of having universal rules
that articulate what morality of a course of conduct. If a rule applies to a circumstance, such as do not
torture, then that rule must be applied regardless of the consequences of doing so in a particular case.
the Kantian, the essential relevant fact about human nature is that humans have the capacity for
reasoning: freedom of choice and action
Any moral rule or duty must respect this fact. It must comply with what Kant calls the categorical
imperative: the only principles which should guide your actions are those which could also hold as
o

universal law, that is, those that could apply to evert other free (reasoning) person. The fundamental moral
requirement which follows from the application of the categorical imperative is that you must treat every
person as having a free will, and you must not make any other person merely a means for the exercise of
your own free will. You must treat every person as an end, and not merely as means (i.e: end = main
objective; means = getting to a given goal).
o EX: Kantian also applies to Jack and Jills ethical dilemma over whether to torture X.
o Answer: The answer it gives to the torture hypothetical would focus on articulation and application
of the appropriate moral law as derived from the categorical imperative. Because the incentive for
torture is entirely consequentialist, it is unlikely that a moral rule could justify it; torturing a person
to achieve ones own (or societies) goal would seem a prima facie denial of that persons moral
agent, and treatment of him as merely a means.
4. Postmodernism
What postmodernism identifies as impossible is a calculus through which moral ideas or judgments can be
tested and perfected. It posits that ethical decisions must be made through individual judgment and moral
institutions, through the subjective viewpoint of the individual making them. An ethical individual will take
responsibility for a decision that he or she makes, and be accountable for it, but he or she will not be aided
in making that decision by abstract or objectively oriented attempts to follow a rule, or to assess the
decisions consequences.
o EX/Answer: if Jack and Jill are postmodernists they must apply their individual judgment and moral
institutions to determine the ethical/rightful response to X. Further, and importantly, they must
accept that they are the ones who made the decision and take responsibility for it. A postmodernist
Jack and Jill must be prepared to explain why they decided to torture X (if they did so) and why they
decided not to torture C (if they did not do so). No equation or analytical calculuss will identify the
correct solution to the problem for them they must simply apply their intuitions and judgment,
make a decision, provide justifications and take responsibility for the decision they have made.
5. Pluralism
Pluralism asserts both that there are various values, and, that there are various ways of identifying which
values are important.
It simply asserts that the attempt to find a single unifying value or way of identifying values is misguided
and impossible.
Rather the heart of ethical decision-making is the weighing and measuring of different and occasionally
conflicting values in different circumstances, and the application of those values in order to decide what
ethics requires given those circumstances.

EX/Answer: The Jack and Jill pluralist is, like the postmodernist, also somewhat unconstrained in how
to assess the torture problem. The pluralist may consider virtues, consequences and the possibility
of applying a universal rule. A pluralist will not be neutral in assessing whether to torture X, but also
will not be found by one particular way of reasoning through the problem. In the end, like
postmodernists, the pluralist will be required to exercise judgment, to explain the decision and to
take responsibility for what that person has done.
E. What does it mean to be an ethical Lawyer?
In reading this section, you can consider what mode of ethical thought: virtue ethics, consequentialism,
Kantiasm, postmodernism or pluralism best explains these competing conceptions, and would be most
useful in attempting to apply them to an actual ethical problem.
1. Loyal Advocacy
o Loyalty is the core moral requirement or value traditionally associated with legal practice.
Commentators who emphasise the importance of loyalty have analogized the lawyer-client relationship
to friendship in order to explain what loyalty requires.
[C, Fried: The Lawyer as a Friend]: A lawyer is a friend in regard to the legal system. He is
someone who enters into a personal relation with you. That means that like a friend, he acts in
your interests, not his own; or rather he adopts your interests at his own. But within that limited
domain the intensity of the identification with the clients interests is the same.
o Loyalty brings two central obligations to the lawyer-client relationship:
First, it requires the lawyer to place the interests of the client above those of other people.
Second, it requires the lawyer to place the interests of the client above his or her own.
[Strother v Canada] As recently described by the Supreme Court: A fundamental duty of a
lawyer is to act in the best interest of his or her client to the exclusion of all other adverse
interests, except those duly disclosed by the lawyer and willingly accepted by the client.
o Why does a lawyer have a duty of loyalty to a client? Each individual in society is autonomous and, as
such, is entitled to be free from unwarranted state interference. Maintaining ones autonomy from
improper state interference requires every person to have the right to access the justice system.
o The following excerpt defends the loyal advocacy conception of the lawyers role It relies on the idea of
law as a form of social settlement, arguing that the function of the lawyer is to help law achieve that
purpose.
[Woolley: In Defence of Zealous Advocacy]: defends the loyal advocacy conception of the lawyers
role and relies on the idea of law as a form of social settlement, arguing that the function of the lawyer is to
help achieve that purpose (i.e.: social settlement).
o

Argument: The basis of Wolleys argument is in favor of the lawyer as a resolute advocate. Resolute
advocacy has two central features: (i) it places decision-making about what is to be done in a legal
representation with the client: the lawyer acts to facilitate the clients achievement of ends with the
legal system. (ii) Resolute advocacy requires a lawyer to interpret and work through the law to achieve
the clients goals. In representing the client, the lawyer must engage in goof faith interpretation of
the law, and work within the system of the law as they exist. Additionally, law is sufficiently complex
and requires the assistance of a lawyer, yet the law is also capable of interpretation that the lawyer can
provide assistance to the client. While lawyers are constrained to act as resolute advocates for their
clients, they also have discretion when choosing clients. In determining what a client wants, a lawyer
will can engage in a discussion with client about what the appropriate course of action within the
constraints of the law are.
o Commentary: In making this argument, Wooley on the one hand denies that law can have identifiable
moral values that the lawyer can protect (Simon/Tanovich view) while on the other hand asserting that
law can impose a meaningful restriction on how lawyers represent client. Wooley relies on the concept
of good faith interpretation as a core constraint on lawyers ethics. Wooley seems to contemplate that
lawyers simply apply or access the law.
Compare and contrast the concept of the lawyer as loyal advocate set out by Wooley with the approach of
the SCC in R v Neil
[R v Neil]: Duty of Loyalty/ bright line rule; lawyer cannot represent one client whose interests are directly
adverse to the immediate interest of another client.
o Facts: The appellant brought an application for a stay of proceedings in his criminal trial basis that
there had been an abuse of process. The abuse arose from a conflict of interest of the law firm that
initially represented him and that ultimately represented a co-accused.
o Issue: What are the proper limits of a lawyers duty, to a current client in a case where the lawyer did
not receive any confidential information relevant to the matter in which he proposes to act against the
current clients interests?
o Ratio: A lawyer has a duty not to act against the clients interest, even if the affected interests are
unrelated to the matters in which he represents this client. A lawyer may not represent one client
whose interests are directly adverse to the immediate interests of another client, unless both clients
consent after receiving full disclosure, and the lawyer reasonably believes he/she are able to represent
each client without adversely affecting the other (i.e. bright line rule).
o (Binnie J): places the lawyers duty of loyalty at the centre of the conflicts of interest analysis.
o

A duty of loyalty is intertwined with the fiduciary nature of the lawyer-client relationship. Loyalty
is often cited as one of the defining characteristic of a fiduciary.
Fiduciary duties are often called into existence to protect relationships of importance to the
public including, as here, solicitor and client. Disloyalty is destructive of that relationship.
The aspects of the duty of loyalty relevant include:
(i)
The duty to avoid conflicting interestsincluding the lawyers personal interest
(ii)
*A duty of commitment to the clients cause (sometimes referred to as zealous
representation) from the crime counsel is retained, not just at trial, i.e. ensuring that a
divided loyalty does not cause the lawyer to soft-peddle his or her defence of a client out
of concern for another clientand
(iii)
A duty of candour with the client on matters relevant to the retainer. If conflict emerges,
the client should be among the first to her about it.
In her dissenting judgment in [Strother v Canada], McLachlin argued that it is improper to superimpose a
fiduciary duty of loyalty beyond that contracted from between the parties. However, Binnie J [R v Neil],
writing for majority, disagreed, holding that fiduciary duties may include obligations that go beyond what
that parties expressly bargained for. The duty of loyalty to a client can arise under contract, but more
obviously arises under the fiduciary obligation
Consider whether McLachlin or Binnie Js approach to a lawyers obligations is preferable in light of the
following case.
[Szarfer v Chodos]: Fiduciary duty/ conflict of interest; lawyer breaches fiduciary duty by having an affair
with clients wife
o Facts: The defendant C, was the (plaintiff Ss - client) lawyer in a personal injury claim. In the course of
his representation of the plaintiff, the defendant lawyer learned about difficulties in the plaintiffs
marriage. The defendant knew the plaintiffs wife because she had worked for him occasionally as a
legal secretary. In May 1981, the defendant and the plaintiffs wife had an affair, which lasted 6 weeks.
The plaintiff discovered the affair and was devastated. He had existing psychological problems of which
the defendant was also aware as a result of his representation.
o Issue: Did the defendant lawyer breach his fiduciary duty by having an affair with his clients wife?
o Held: Yes
o Ratio (Callaghan): The fiduciary relationship between a lawyer and his client forbids a lawyer from
using any confidential information obtained by him for the benefit of himself or a third person or to the
disadvantage of his client. The highest and clearest duty of a fiduciary is to act to advance the
beneficiaries interest and avoid acting to his detriment. A fiduciary cannot permit his own interest to
come into conflict with the interest if the beneficiary of the relationship. Once the fiduciary relationship

o
o

is established, the onus is on the trustee to prove that he acted reasonably and made no personal use
whatsoever of the confidential information. Such conduct vitiates trust and is a breach of the conflict of
interest rule
o Application: In engaging in sexual intercourse with the plaintiffs wife, the defendant was acting in his
own interest and to his personal benefit. I cannot help but conclude that his actions were also to the
detriment of his clients interests. Upon discovery of the affair, the clients trust in the solicitor was
destroyed. Such conduct which vitiates trust, the essential element of a solicitor client relationship,
and results in physical injury to the client, is a breach of the conflict-of-interest rules referred to above.
The defendant has not discharged the onus of proving that he acted reasonably in the circumstances.
That in itself is sufficient to hold him liable for damages.
2. The Lawyer as Moral Agent in Pursuit of Justice
o The following case arguably demonstrates the strength of both Luban and Simons point of view, insofar
as it suggests that a lawyer who focuses exclusively on the interests of his client may improperly lose
sight of other moral values, including the obligations imposed by the lawyers legal duty to protect the fair
administration of justice. Following the case will be an excerpt from Lubans famous critique of zealous
advocacy, and his assertion of the irreducible importance of ordinary morality.
o [R v Murray]: Ex of case where a lawyer who focuses exclusively on the interests of his client, improperly
loses sight of other moral values (legal duty to protect the fair administration of justice in this case).
o Facts: M (Paul Bernardos counsel) removed videos from crime scene not found by police on his
clients instructions, and maintained possession without notification to authorities. Charged with
attempt to obstruct justice. M held tapes for purpose of supporting clients defence (Karla Homolka
was actually responsible for deaths of victims).
o Issue: Was it unethical to handle physical evidence without confronting the police?
o Held: There was no reasonable doubt as to whether M was acting with the intention to obstruct
justice; he was acquitted because he may have believed that under the circumstances that he had
no legal duty to disclose the tapes until resolution discussions for trial.
o Ratio: Lawyer has a duty to provide authorities if they come into the possession of physical
evidence (either (i) immediately turn over the physical evidence to the prosecution; (ii) deposit
them with the trial judge; (iii) disclose their existence to the prosecution and prepare to do battle to
retain them). A lawyer should also be required to inform a client of his/her ethical obligations before
accepting the item, including the possibility of having to hand the evidence over to the court or the
prosecution.
o [Luban: The Adversary System Excuse]: Criticizes zealous Advocacy and asserts the importance
of ordinary morality

Argument: the adversarial system (legal system in common law where two advocates represent
parties) is not very accurate at uncovering truth, with the exception of where questions of law are
argued. When lawyers are attempting to keep evidence from being admitted, or distorting the
meaning of their evidence, injustice is done. Examples include intimidating claimants so they do not
go to trial. If professional obligation or legal rules conflict with moral obligations, the lawyer must
obey moral obligations, and disobey legal/professional rules.
3. Integrity
o What does maintaining integrity require?
o [Woolley: Integrity in Zealousness]: integrity is a response to the problem of conflicts between
professional and personal morality. Either professional or of personal moral claims must be sacrificed.
What emphasising integrity does is assert that lawyers should, where possible, avoid circumstances
where personal and professional morality are likely to conflict (by, for example, selecting clients whose
moral claims the lawyer can respect). In addition, integrity directs the lawyer to be fully cognizant of,
and responsible for, her choices in circumstances of moral conflict. Wolley suggests that a lawyer must
recognise and take responsibility for the extent to which her professional life requires her to do things
that conflict with what, outside of her profession, she would find morally unacceptable And, if choosing
to privilege personal morality over professional obligation, she must take responsibility for that too.
o [Farrow: Sustainable Professionalism]: argues that the traditional loyalty based visions nor the
alternative justice-seeking narratives capture the current complexities of the modern practice of law, and
articulates a new concept for the lawyers role substantial professionalism
o Argument: According to Farrow, it is safe to conclude that the evolving characterisation of the lawyer
as an ethical professional is one that involves a fusion of personal and professional attributes. Farrow
suggests that we are engaging in a new discourse for lawyers and the legal profession that is seeking
to become personally, politically, ethically, economically, and professionally sustainable. It is a
disclosure that makes meaningful space for a lawyers own principles, interests, and life preferences by
balancing with other important interests including, but not dominated by, those of the client. In
summary, Farrows view is consistent with the premise that personal values and experiences are
relevant to the development of a strong professional identity.
o In reading the following judgment, consider whether following a model of sustainable professionalism could
have changed counsel for the defendants assessment of their obligations to the plaintiff at the point of
settlement
o [Spaulding v Zimmerman]: Lawyer has no specific ethical obligation to disclose the plaintiffs potentially
life threatening condition
o

Facts: the defendants had reached a settlement with the plaintiff for injuries he had suffered in an
automobile accident. The medical report given to the defendants indicated that the plaintiff was
suffering from an aneurysm which had not been detected by the plaintiffs own physician. The
defendants did not disclose the medical report to the plaintiff. The plaintiff later discovered the
existence of the aneurysm and sought to set aside the settlement.
Issue: what are the obligations of the defendants lawyer with information regarding to a potentially
life-threatening conditions that defences doctors had found in discovery; where the plaintiffs are
unaware of the potentially life threatening condition?
Held: the defendants lawyer had no specific ethical obligation to disclose the plaintiffs potentially life
threating condition.