Table of ContentsINTRODUCTION..................................................................................................................................................... 2

(JABOUR ) – CONSERVATISM IN ADVERTISING/POWER OF BENCHERS............................................................................2PHILOSOPHIES.............................................................................................................................................................................3WOOLLEY ON LOYAL ADVOCACY......................................................................................................................................... 3(NEIL ) – DUTY OF LOYALTY IS FIDUCIARY...........................................................................................................................3(SZARFER ) – AFFAIR BREACHED DUTY OF LOYALTY/ACTING IN OWN INTEREST.......................................................4(MURRAY ) – THE BERNARDO CASE/MINISTER OF JUSTICE V. ZEALOUS ADVOCACY...................................................4LUBAN’S CRITIQUE ON LOYAL ADVOCACY...........................................................................................................................4VIEWS ON INTEGRITY................................................................................................................................................................ 5

LAWYER-CLIENT RELATIONSHIP.................................................................................................................... 5MARKETING IS IN S. 4.2-5.......................................................................................................................................................5(MERCHANT ) – ADVERTISING RE: RESIDENTIAL SCHOOLS................................................................................................5(STEWART ) – SELF-AGGRANDIZEMENT.................................................................................................................................5MORAL NON-ACCOUNTABILITY V. TAKING IT PERSONALLY..............................................................................................5DECLINING REPRESENTATION..................................................................................................................................................5ACCESSIBILITY OF LEGAL SERVICES........................................................................................................................................6TRIGGERING THE RELATIONSHIP – S. 1.1-1.........................................................................................................................6COMPETENCE – S. 3.1-1/2......................................................................................................................................................6WITHDRAWAL FROM REPRESENTATION – 3.7-1/2/7/8.................................................................................................6(RICHEY ) – INCOMPETENCE AS A PATTERN OF NEGLECT..................................................................................................6(SYED ) – MORE INCOMPETENCE.............................................................................................................................................6(FRASER ) – CULTURAL INCOMPETENCE................................................................................................................................6PERSONAL INTEREST IN MATTER – 3.4-26.1......................................................................................................................6

DUTY TO PRESERVE CLIENT CONFIDENCES................................................................................................6CRITICALLY IMPORTANT........................................................................................................................................................... 6(DESCOTEAUX ) – CRIMINAL PURPOSE EXCEPTION.............................................................................................................7(SMITH ) – PUBLIC SAFETY EXCEPTION.................................................................................................................................7(MCCLURE ) – INNOCENCE AT STAKE.....................................................................................................................................7(GOODIS ) – DISCLOSURE UNDER FOI LEGISLATION............................................................................................................7(EFA MERCHANT ) – LAW SOCIETY POWERS FOR NARROW DISCLOSURE.....................................................................7(FLSC V. CANADA ) – CONFIDENTIALITY IN NATIONAL SECURITY CONTEXT.................................................................8

LOYALTY AND CONFLICTS OF INTEREST......................................................................................................8(MACDONALD ) – DUTIES TO FORMER CLIENTS (4-3 MAJORITY)...................................................................................8(NEIL ) – DUTY TO CURRENT CLIENTS/BRIGHT LINE RULE..............................................................................................9(STOTHER ) – PRIVATE INTERESTS ABOVE CLIENT INTERESTS (5-4).............................................................................9(MCKERCHER) – REINFORCING THE BRIGHT LINE RULE..................................................................................................9

ETHICS IN ADVOCACY....................................................................................................................................... 10ZEALOUS ADVOCATE V. OFFICER OF THE COURT...............................................................................................................10PRE-TRIAL ETHICS.................................................................................................................................................................. 10

Pleadings................................................................................................................................................................................ 10(Zellers) – Pursuing Shoplifting Claims.................................................................................................................... 10Discovery................................................................................................................................................................................ 10(Grossman) – Frustrating Discovery.......................................................................................................................... 10

ETHICS AT TRIAL..................................................................................................................................................................... 11

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Witness Preparation......................................................................................................................................................... 11Cross-Exam........................................................................................................................................................................... 11Governing Authorities -- 5.1-2..................................................................................................................................... 11

WOOLLEY – ADVOCACY AND CIVILITY.................................................................................................................................11(MULRONEY) – BREACHING AGREEMENTS AND WITHHOLDING INFORMATION.........................................................11(LAARAKKER ) – SCANDALOUS LETTERS TO OTHER LAWYERS.......................................................................................11

COUNSELLING AND NEGOTIATION...............................................................................................................12COUNSELLING........................................................................................................................................................................... 12(SUSSMAN ) – COUNSELLING A CLIENT TO BREAK THE LAW..........................................................................................12LUBAN ARTICLE – COUNSELLING V. ADVOCACY................................................................................................................12NEGOTIATION........................................................................................................................................................................... 12(REGULAR, NFLD CASE ) – DELIBERATE INTENT TO MISLEAD.....................................................................................12

ETHICS IN CRIMINAL LAW.............................................................................................................................. 13CASES ON THE ROLE OF CROWN AND DEFENCE COUNSEL..............................................................................................13ETHICAL DUTIES OF CROWN COUNSEL...............................................................................................................................13

Full Disclosure..................................................................................................................................................................... 13Duty to Call All Material Witnesses............................................................................................................................ 13Overzealous Advocacy...................................................................................................................................................... 13

ETHICAL DUTIES OF OFFICERS OF THE COURT..................................................................................................................14ETHICAL DUTIES OF DEFENCE COUNSEL............................................................................................................................14

Duty to the Client................................................................................................................................................................ 14Defending the Guilty Client without Misleading the Court...............................................................................14Custody and Control of Real Evidence....................................................................................................................... 14Negotiating a Guilty Plea................................................................................................................................................ 15

CORPORATE COUNSEL...................................................................................................................................... 15MILTON ARTICLE – ROLES AND CONCERNS.......................................................................................................................15PATON ARTICLE – ETHICS AND INTEGRITY/WHISTLEBLOWING V. CLIENT LOYALTY...............................................15RHODE AND PATON ARTICLE – LEGACY OF ENRON.........................................................................................................16(WILDER ) – ROLE OF THE SECURITIES COMMISSION.......................................................................................................16(PRITCHARD ) – PRIVILEGE FOR IN-HOUSE COUNSEL IS CASE BY CASE...................................................................17(POTASH CORP ) – PRIVILEGE ONLY ATTACHES TO WORK IN LEGAL CAPACITY...............................................17PATON ARTICLE – THE FUTURE OF PRIVILEGE FOR IN-HOUSE COUNSEL...................................................................17

GUIDE TO THE CODE......................................................................................................................................... 17NO PERSONAL BELIEFS.......................................................................................................................................................... 17OFFICER OF THE COURT......................................................................................................................................................... 17ZEALOUS ADVOCACY............................................................................................................................................................... 17BEING A DUPE.......................................................................................................................................................................... 18CONFIDENTIALITY....................................................................................................................................................................18CONFLICT OF INTEREST..........................................................................................................................................................18

INTRODUCTION

(Jabour) – Conservatism in Advertising/Power of BenchersJabour advertised his fees and his practice areas

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(Rocket) later loosened the restrictions

Benchers have a tremendous amount of power: they are the “guardians of the proper standards of professional and ethical conduct”

Not many restrictions in the Legal Profession Act

PhilosophiesVirtue ethics – Aristotelian idea that people have virtues and vices through which they make decisions

Utilitarianism – greatest good for the greatest number, although that benefit can be delayed

Deontological – Kantian view that we need rules, since people are able to reason the best way, and we must treat people as ends, not means

Postmodernism – the world is unknowable; ethics are a personal assessment

Pluralism – there are no common values; we must weigh different values in different contexts

WOOLLEY on Loyal Advocacy

The law attempts to solve our major moral concerns so that even when we disagree, there is a solution

To ignore the law based on a moral objection is to undermine legality all togetherThis is in contrast to the personal morality view that lawyers need to make choices when their views conflict with the law

If the law permits it, but there is a moral or legal conflict, the final decision belongs to the client

Law creates civil society, and so lawyers need to be zealous advocates when permitted by law because it maintains our society

Any permitted action this becomes morally justified

This may still mean a lawyer takes morally dubious actions, but the lawyer’s proper route is to work them out with the client

(Neil) – Duty of Loyalty is FiduciaryThe duty of loyalty from the time of King George IV endures today because it is integral to the administration of justice and public confidence

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A litigant needs undivided loyalty

The duty of loyalty is intertwined with the concept of a fiduciary duty

McLachin disagreed with Binne on this in (Strother), saying that fiduciary duty only applies to what was contracted for

(Szarfer) – Affair Breached Duty of Loyalty/Acting in Own InterestLawyer was working with the plaintiff on a personal injury claim, and during that representation, learned of marital difficulties

The lawyer then had an affair with the plaintiff’s wife

Court framed this as the lawyer acting in his own interest and engaging in behaviour that harmed the client, even if it was NOT RELATED to the case

Lawyer also misused confidential information

(Murray) – The Bernardo Case/Minister of Justice v. Zealous AdvocacyMurray was Bernardo’s lawyer, and upon client instructions, he took videotapes from Bernardo’s home

He did not disclose them to the Crown and kept them for 17 months

He said his intent was to use them for the defence, and not bury them

He was narrowly acquitted

LUBAN’s Critique on Loyal AdvocacyTrials often turn into games

We don’t really learn the “truth,” and lawyers often do not want all of the truth on the record

Zealous advocates do not always the best trial make when procedural tricks enter the fray (texts on cross-exams, SLAPP suits)

People would not always help a person act immorally, so why should a lawyer?

It is not enough to act simply because the system mandates it

The problem is that he goes on to accept that the adversarial process is best

He simply suggests that morality should trump

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Views on IntegrityWoolley – avoid circumstances where personal and professional responsibilities conflict, such as by carefully choosing clients and being able to accept the consequences when you need to favour one over the other

Farrow – a myriad of interests are at stake, and the best approach is to move beyond the centrality of client interests

LAWYER-CLIENT RELATIONSHIP

Marketing is in S. 4.2-5

(Merchant) – Advertising re: Residential SchoolsLawyer sent Assignments and Retainer Agreements to supervisors of these schools offering to represent them with potential settlement figures, saying they had nothing to lose

The supervisors were angry because they never gave out their info

Calling the retainer a “simple authorization” was misleading

The notion of “losing nothing” did not account for legal costs in the retainer

Also a number of racist assumptions and disregard the potential impact

(Stewart) – Self-AggrandizementLawyer appeared on TV about a former case

When dealing with the media on a former case, one cannot engage in behaviour that is self-promoting or self-aggrandizing

Moral Non-Accountability v. Taking it PersonallyHutchinson argues that client selection is critical because one a decision is made, the ethical die is cast and there is little turning back

Talk to the client, and take your comfort personally

Proulx and Layton suggest that a lawyer should hold a sincere belief in the morality of representation, with little attention to public opinion and personal repugnancy

Declining RepresentationCompetence – 3.1-2

Dishonesty/Fraud – 3.2-7/8 (one for when client is an organization)

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Accessibility of Legal ServicesRoy McMurtry, Chief Justice of Ontario, believes that legal access for society’s most disadvantaged is getting worse, not better

Bev McLachlin has the same concerns

Does the administration of justice require that we do pro bono work?

Triggering the Relationship – s. 1.1-1

Competence – s. 3.1-1/2

Withdrawal from Representation – 3.7-1/2/7/8Generally speaking, though, this will be difficult

A retainer would be a good idea!

(Richey) – Incompetence as a Pattern of NeglectThe case does not rule out a single act being incompetent, but this was a pattern

Failed to move to settlement or a trial, failed to advise of the reasons for not doing so, failed to meet deadline commitments, failed to file documents in a timely manner, failed to commence discovery in a timely manner, failed to respond to communication, failed to have an adequate filing system

(Syed) – More IncompetenceNot enough time interviewing the client or exploring defences, opted for provincial court without informing the client, offered a guilty plea without really examining it, was not prepared for trial if deal fell through

(Fraser) – Cultural IncompetenceFailed to advise a black client that he could challenge jury members on bias given that the victim was white, failed to adhere to the client’s concerns about a white jury, basically just ran it all himself… reluctant to do anything but his perceived way to win every single case, failure to bother with affidavits with what the Crown had, failure to consider witnesses

Personal Interest in Matter – 3.4-26.1

DUTY TO PRESERVE CLIENT CONFIDENCES

Critically ImportantJamal article – SCC has called solicitor-client confidences a matter of high importance

Ethics text – Heart of the lawyer-client relationship; crucial for the public to know that their info is vigorously protected

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Proulx and Layton – linchpin of the lawyer-client relationship

(Descoteaux) – Criminal Purpose ExceptionSeeking advice to commit a crime, or if the communication itself is illegal

In this case, it was lying about financial state to get access to legal aid

(Smith) – Public Safety ExceptionThere must be a clear risk to an identifiable group/person

Likelihood that the risk will happen

Long range planning? Method for an attack? Prior history?Is the prior history similar?Is the violence increasing in severity?

Identifiable group at risk

Group of person must be ascertainableGroup may be large

It must be a risk of serious bodily harm or death

The risk must be imminent

This is very flexible, and will generally be found somehow if the prior two are metNot immediate; just an urgent need to prevent harm

(McClure) – Innocence at StakeNeed to prove two things on a balance of probabilities:

That the information is not available from any other source (i.e. hearsay evidence from someone else might be fine), andThat he is otherwise unable to raise a reasonable doubt as to his guilt

(Goodis) – Disclosure under FOI LegislationCourt talks about whether disclosure is absolutely necessary to meet the ends sought by the legislation

(EFA Merchant) – Law Society Powers for Narrow DisclosureLaw Society investigated a complaint that a lawyer disobeyed a court order and did not pay funds into the court

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He claims privilege over him telling the wife whether the money was paid into court

Absolutely necessary speaks about whether documents should be disclosed, and the Law Society has the power to ask for disclosure of privileged documents

The documents form a narrow and relevant enough scope, given the reasonable grounds, and the fact that they are necessary for the investigation

(FLSC v. Canada) – Confidentiality in National Security ContextGovernment passed a law requiring, among others, lawyers to obtain personal and financial information that might be used by authorities in investigations

FLSC argued that it breached solicitor-client confidentiality

This infringes the Charter re: principles of fundamental justice

It is contrary to the public interest for the government to pass a law that nullifies confidentiality

Interesting that confidentiality seems to trump some national security efforts

LOYALTY AND CONFLICTS OF INTEREST

(MacDonald) – Duties to Former Clients (4-3 Majority)A lawyer with a law firm represented Mr. Martin, and of course gathered confidential information

That lawyer moved to another law firm which represented the party opposed to Mr. Martin

The lawyer was not involved in any way with the case, but Martin wants the firm disqualified

There are three conflicting principles: standards integrity of the legal profession, litigant not being deprived of choice of counsel, and allowing for reasonable mobility of lawyers

The test is to ask where a reasonably informed public would be satisfied that confidential information was not used by answering two questions:

1. Did the lawyer actually receive confidential information about the matter at hand?

a. This just needs a substantial relationship between the matter where the confidential information came out and the matter at hand: we assume the lawyer then got confidential information unless the lawyer meets a high burden otherwise

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2. It there a risk that it will be used to prejudice the client?a. Need more than undertakings not to shareb. Need to take independently verifiable steps to avoid sharing

The Code speaks on this now, both law firm disqualification and acting against former clients

(Neil) – Duty to Current Clients/Bright Line RuleNeil and Lambert got into trouble; a law firm represented Neil, and a lawyer associated with that law firm represented Lambert

Lazin also received confidential information on this file from another client that went against Neil

The bright line rule says that a lawyer may not represent a client whose interests are directly adverse to the immediate interests of another client – even if the two matters are unrelated – unless both clients consent after receiving full disclosure, and the lawyer reasonably believes that he can represent one without adversely affecting the other

However, the remedy seems to be an ethical, not a legal one – proceedings were not stayed

(Stother) – Private Interests above Client Interests (5-4)A film production company retained a firm to help it take advantage of lucrative tax breaks

The government of Canada moved to stop the tax break, and so Monarch folded

A former senior employee of the company approached a senior partner of the firm, and suggested that they work together to try and stop this from being implemented

They were successful, made lots of money, and then the production company argued that such work was owed to them instead

The biggest issue is that the partner continuously kept the production company in the dark

Even though the retainer had ended, there was a sense of more fiduciary duty than the parties contracted for

This relationship may have been permitted otherwise, but he used information from a client to put his own personal financial interests ahead of that by directly competing for profits, and made it seem as if NOTHING WAS WRONG

(McKercher) – Reinforcing the Bright Line RuleLaw firm represented plaintiffs in a class action against CN Rail, even though the firm had long had CN Rail as a client

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Law firm never told CN

Violated the duty of candour (should have gotten consent), duty of conflicting interests, and duty of commitment

Nevertheless, the firm likely won’t be disqualified from representing the plaintiffs

No confidential information shared, and the firm dropped CN

Ethics in Advocacy

Zealous Advocate v. Officer of the CourtMcMurtry (Chief Justice of Ontario) – A lawyer is not simply a hired gun; they must be faithful both to the client and to the administration of justice

Lord Denning – a lawyer must do all he honourably can for his client; this is a conflict often difficult to resolve

Pre-Trial Ethics

PleadingsHow does one fearlessly raise every issue without overstating the case or use pleadings to be frivolous, vexatious, etc.?

(Zellers) – Pursuing Shoplifting ClaimsZellers had a policy of pursuing children for small shoplifting claims, even though there is nothing that automatically holds parents liable for the torts of their children

The plaintiff had paid damages to Zellers, but she now wants to reclaim them on the basis that Zellers never had a valid claim

The court agrees – the forbearance to sue was based on an invalid claim because Zellers never had a claim against the mother who paid

Zellers misled her, so she gets the money back

DiscoveryClients often don’t like this, and ethically speaking, lawyers are essentially left to regulate themselves

(Grossman) – Frustrating DiscoveryThe rules of civil procedure are intended to facilitate discovery, not frustrate it

Framing an affidavit in a way that claims privilege over everything and prevents opposing counsel from making arguments against it is not appropriate

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Need to at least provide enough information to challenge the validity of the claim

General descriptions of documents will not give away their contents; lawyers cannot argue over what they do not know exists

Ethics at TrialThe trial is basically all about zealous advocacy v. officer of the court

Witness PreparationWitness prep is ethically fine; witness coaching to distort evidence, act forgetful, or do anything false or misleading is a bigger problem

Cross-ExamThe biggest issue here seems to be the acting with candour, integrity, respect, etc.

(Lyttle) – good faith basis

(AJ) – cannot be demeaning, humiliating, or overly sarcastic; also no room for personal opinion

Governing Authorities -- 5.1-2

Woolley – Advocacy and CivilityGood manners are NOT a subject for professional regulation

It’s too broad to be useful

Lawyers can’t always “be nice” for their client, and must sometimes risk unpopularity

Might keep lawyers from issuing proper strongly-worded criticisms

We have defamation if it goes over the line; otherwise, civility inhibits truth-finding

Civility is in the eye of the beholder

Civility is already stated adequately elsewhere without this broad catch-all

(Mulroney) – Breaching Agreements and Withholding InformationLawyer was penalized for breaching an agreement not to seek default judgment, and for not telling opposing counsel that this was done behind his back

(Laarakker) – Scandalous Letters to Other LawyersIn response to a letter from a lawyer regarding something similar to the Zellers set-up, the other lawyer sent back a very demeaning fax, and posted a similarly demeaning blog

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He was guilty of professional misconduct

Not the lawyer’s place to pursue vigilante justice by using personal remarks

COUNSELLING AND NEGOTIATION

CounsellingNeed to be frank and candid, and not simply tell clients what they want to hear

Also cannot make the decision for the client

(Sussman) – Counselling a Client to Break the LawLawyer advised a wife to breach the access provisions of a court order

He said he did so because he had reasons to apply for a variation order, but this is baseless – that took seven months

Need a reasonable and honest belief of imminent risk or danger to a child, co-existing with the requirement that there be an immediate court application to work out those issues

Luban Article – Counselling v. AdvocacyThe government seems to have gotten advice it wanted to hear by getting a legal opinion that torture only exists when there is risk of organ failure

The opinions became discredited, but the lawyers got off without punishment

Advocates often have to stretch the law and fit it to their client’s needs, but counselors ought not to do this

NegotiationIn general, negotiators can withhold material facts and make untruthful statements

Frequently seen as a game

Negotiation is also listed in the definition of a competent lawyer

(Regular, NFLD Case) – Deliberate Intent to MisleadA lawyer received a letter addressing a rumour that his client, a corporation, was to be sold

The lawyer denied it even though the company that day removed the author as a director of the corporation, and sold it a few days later

Lawyer testified that, in his opinion, the company wasn’t selling substantially all of the assets, meaning 90% in his opinion, so his statement was fine

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Court doesn’t buy it – unless Regular states that assumption, the author had no reason to believe that half or more of the company would be sold

ETHICS IN CRIMINAL LAW

Cases on the Role of Crown and Defence Counsel(Boucher) – no notion of winning or losing; minister of justice who needs to see justice done

(Cook) – Crown still can and should be a strong advocate if the evidence supports it

(Rose) – Crown counsel are expected to be adversarial

(Stinchcombe) – although defence counsel are adversarial, they are still officers of the court

Ethical Duties of Crown CounselProulx and Layton – takes personal courage and strength to be both a strong advocate and a minister of justice that treats the accused fairly

Full DisclosureUndoubtedly the most important ethical obligation

(Stinchcombe/Marshall Inquiry) -- All relevant information in the Crown’s possession must be disclosed

(Krieger) – the Law Society can hear ethical complaints about whether the lawyer properly disclosed evidence without meddling into prosecutorial discretion

Duty to Call All Material Witnesses(Lemay/Stinchcombe) – gets all of the facts before the jury, both favourable and opposed to the accused

HOWEVER… now that we have (Stinchcombe) disclosure, (Cook) says that the Crown DOES NOT have to call witnesses they don’t want to call

Overzealous Advocacy(Boucher) first said that Crown counsel cannot use inflammatory or vindictive language or leaving an impression that the accused ought to be found guilty

No appealing to emotion – is this still the case today?

Same goes for cross-exam (A.J.) – no sarcasm, demeaning, humiliating

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Ethical Duties of Officers of the CourtThese do apply to both Crown and defence counsel

All of the cases – (Rondel) and (Giannarelli) in particular – place a premium on honesty and integrity

(Samra) also mentions a duty not to make frivolous arguments

(Felderhof) mentions a duty of civility, mainly by personally attacking the other counsel’s honesty or integrity

Ethical Duties of Defence Counsel

Duty to the ClientOverly partisan, including representation with admissions of guilt (albeit with serious limitations in the Code, s. 5.1-1)

(Rondel) – fearlessly raising every issue, argument, and question, however distasteful

Similar language in Code s. 5.1-1

Counsel failed here in the Marshall case

Defending the Guilty Client without Misleading the CourtThe most important ethical principle is FORM NO PERSONAL OPINIONS

This happened in the Marshall case

The lawyer who is convinced of guilt can continue to represent subject to the restrictions in 5.1-1 (can cite Tuckiar as well)

No advocating that another person did it, generally can’t argue that the accused didn’t do it, no false alibies or evidence

Can still argue on procedure and evidence; just cannot mislead

Custody and Control of Real EvidenceRemember (Murray) – the Bernardo case

Counsel cannot hide evidence if it suggests illegal conduct, but this is really a legal obligation, not an ethical one

Code does mention fraud/dishonesty, and nothing dishonest/dishonourable, but there’s nothing right on point

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Since defence generally don’t need to disclose, the text suggests the following model approach:

Review it regardless of client instructions, advise the client that the lawyer cannot conceal it if it turns out to be incriminatory, and if the evidence is in doubt re: incriminatory status, counsel ought to call a Bencher

Negotiating a Guilty PleaCounsel does have a responsibility to plea bargain when permitted

Often applies when there is an inevitable conviction or when the client wants to

However, if lawyers do this at the last minute in the hope of avoiding trial without knowing all the facts, or if they pressure guilty pleas, this is unethical

Also may be unethical if the client confidentially discloses innocence

Code talks about this in s. 5.1-7

CORPORATE COUNSEL

Milton Article – Roles and ConcernsThe use of in house counsel is growing, which raises some interesting questions

How do ethics apply to representing an abstract entity, when most of ethics focuses on representing individuals?

What individuals hold power in a corporation, and when are they acting in the entity’s best interests?

Do ethics change when the primary task is drafting, not litigation?

If lawyers are in-house, are they also business advisors, and does this water down their role as a lawyer?

Is a corporate lawyer a gatekeeping whistleblower on illegal corporate activity, or a zealous advocate?

Corporate lawyers often use loopholes, but to maintain public confidence, the law needs to be more than just an instrument/rule to overcome

Paton Article – Ethics and Integrity/Whistleblowing v. Client LoyaltyIn-house counsel are getting paid well today, and are getting diverse and important work

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Ethics becomes muddled when lawyers are placed directly in the corporate sphere

Saying no based on ethics might end up meaning strained or lost employment

USA drafted the Sarbanes-Oxley Act to draft rules of professional conduct, with a sense that lawyers are placed under similar responsibilities as executives and accountants, and that lawyers must now protect shareholder interests in this role

Lawyers are now asked to choose between reporting their clients/employers up the ladder and preserving the loyalty to the client

The lawyers won the fight against noisy withdrawal, and kept that out of the legislation

Rhode and Paton Article – Legacy of EnronLawyers played a key role in helping Enron determine how to use SPEs, and whether they needed to be disclosed

The in-house counsel were accused of an absence of forceful and effective oversight

One lawyer was dumb enough to invest in one of the partnerships

Two lawyers that did have concerns were basically silenced

Corporate culture values appealing lies over inconvenient truths

The outside law firm also approved of the entire set-up, and Enron relied heavily on their approval

Their view was that since the company approved of it and since it WASN’T ILLEGAL, it wasn’t their role to question business judgment

Unfortunately, that ignores ethics, and asks who is the client?

A bigger problem was that the same firm agreed to “independently” review its own work after concerns from one upper-level management figure

Also keep in mind the troubling discussion over Temple acted ethically in enforcing a document shredding policy after becoming aware of the SEC investigation

(Wilder) – Role of the Securities CommissionDoes it have the authority to discipline a lawyer?

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They have statutory jurisdiction – any person, regardless of status as a lawyer, is caught

Can it reprimand lawyers in their role as lawyers?

YES – the legislature chose towards that do not explicitly exclude lawyers

This role is not inconsistent with that of the Law Society – the Law Society regulates professional conduct; the OSC regulates investor protection

(Pritchard) – Privilege for In-House Counsel is CASE BY CASE

(Potash Corp) – Privilege Only Attaches to WORK IN LEGAL CAPACITY

Paton Article – The Future of Privilege for In-House CounselIn Europe, privilege does not apply to in-house counsel because of the employment relationship

In one case, an independence agreement was not enough to get around this because he occupied the position of an employee

As a result, even North American communications with European offices are at risk

According to a CBA paper, we here in Canada have only just begun to tackle this

Will this drive people away from being in-house counsel, or worse still, drive them into hiding their correspondence, or doing it all orally?

GUIDE TO THE CODE

No Personal Beliefs2.1-2 (should not assert a personal belief), 2.1-3 (regardless of personal opinion), 5.1-1 (notwithstanding private opinion), 5.1-1 again (restrictions if accused admits)

Officer of the Court2.1 (minister of justice/officer of court), 2.1-1 (duty to the state), 2.1-2 (candour and fairness), 2.1-4 (courtesy and good faith with other lawyers), 2.1-5 (honour and integrity), 2.2-1 (honour and integrity again), 2.2-2 (uphold standards of profession), 5.1-1 (candour and fairness), 5.1-5 (courteous and civil)

Zealous Advocacy2.1-3 (resolutely without fear of judicial disfavour or public unpopularity), 2.1-3 again (obtain any remedy permitted), 3.2-1 (quality of service), 5.1-1 (raise fearlessly every issue), 5.1-1 again (openly and necessarily partisan), 5.1-1 again (restrictions if accused admits)

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Being a Dupe2.1-2 (no misstating or flattery/pretended solicitude), 2.1-3 (undisguised opinion), 2.1-3 again (no fraud of chicanery, nothing repugnant to lawyer), 3.2-2 (honest and candid), 3.2-7 (dishonesty/fraud/dupe), 3.2-8 (dishonesty/fraud when client is organization), 5.1-1 (frivolous or vexatious objections), 5.1-1 again (tactics that merely delay or harass), 5.1-2 (nothing motivated by malice or solely to injure), 5.1-2 again (nothing dishonest or dishonourable)

Confidentiality2.1-3 (scrupulously guard), 3.3-1 (all times hold in strict confidence), 3.3-2 (need consent), 3.3-2.1 (privilege), 3.3-3 (public safety exception)

Conflict of Interest3.4-1 (duty to avoid AND definition), 3.4-1 [6] (bright line rule for current clients), 3.4-2 (consent), 3.4-10 (acting against former clients), 3.4-11 (firm working against former client of lawyer), 3.4-20 (law firm disqualification), Appendix D (screening procedures)

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