Canadian Lawyer

April 2009

The most widely read magazine for Canadian lawyers

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opinion defence team, he was savagely attacked. His response? "That Hussein and other former Iraqi officials must have law- yers of their choice to assist them in defending against the criminal charges brought against them ought to be self- evident among a people committed to truth, justice, and the rule of law. . . . [A lawyer] should accept such service as his highest duty." Ironically, many cause lawyers would recognize and endorse this sentiment. It is, after all, a personal commitment to a cause. But moral neutrality, acceptable as it may be in general, doesn't mean that a lawyer should subvert the values of his society, or be blind to its best interests. Canadian law societies make this plain in their rules. The Canons of Legal Ethics of the Law Society of B.C., for example, says that "it is a lawyer's duty to promote the interests of the state," and that "a lawyer owes a duty to the state, to maintain its integrity and its law." Note, not just its law — its integ- rity as well. The Rules of Professional Conduct in Ontario say that, when act- ing as an advocate, the lawyer shall not "knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable." In a paper entitled "A Lawyer's Duty to Society," delivered to a 2008 Ontario Advocates' Society symposium on pro- fessionalism, Sylvia Corthorn and Reena Goyal drew a distinction between the "thin" and "thick" views of profession- alism. People who believe in the "thin" view argue "that there is no residual duty to society if the lawyer's duties to the client, the courts, and the law are dis- charged." The "thick" view, on the other hand, requires that the lawyer's duty to society be paramount: "To act in a way that might reasonably be forseen to be contrary to the public interest is incon- sistent with the defining characteristic of a profession." The Corthorn/Goyal paper implies that law society rules favour the thick view. This may come as a surprise to lawyers who like to argue in favour of moral neutrality and consider them- selves to be in the mainstream. As for me, I'm sticking to my guns. I think it's very hard, for example, for a lawyer to justify, on the grounds of moral neutrality, having been a cog in the machine that packaged and sold collateralized debt obligations (CDOs) made up of sub-prime mort- gages unlikely ever to be paid. These CDOs were irresponsibly graded by rating agencies enmeshed in conflicts of interest, and were then off-loaded onto unsuspecting buyers who didn't really understand what they're getting. Ignorance is the usual defence in this and similar cases (who knew?), but what about due diligence, a concept much loved by the legal profession (at least, when it comes to other people)? And as for it being okay for a lawyer to help a client evade taxes — puhleese! Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com Enforcing Human Rights in Ontario The fundamentals you need to quickly navigate the new human rights system The was recently amended to significantly change how human rights are protected, promoted and enforced in Ontario. Enforcing Human Rights in Ontario is the first book to outline how the new human rights system works, written by lawyers renowned for their experience in the area. Written in a practical, how-to format, it provides: the history of the reform the wide-ranging changes from the old to the new system – including the changed roles of the Human Rights Commission, Human Rights Tribunal and an overview of the new Human Rights Legal Support Centre the new role of the courts in enforcing human rights the interaction between the Human Rights Tribunal and other administrative tribunals with concurrent jurisdiction practical information and principled analysis to help those representing complainants, respondents, intervenors and the Commission Benefit from practical tools such as: the and Human Rights Tribunal a flow chart of the application process a list of the Commission's guidelines and policies information on legal supports … and more. Hardbound Approx. 320 pp March 2009 $98 P/C 0301010000 ISBN 978-0-088804-485-3 For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www. Cornish_enforcing Human Rights (CL 1-2is Legal).indd 1 CL0409 mag.com APRIL 2009 25 3/17/09 3:14:23 PM Mary Cornish, Fay Faraday and Jo- Anne Pickel H uman Rights Code Rules of Procedure H uman Rights Code

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