The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50809
OP I N ION BY PHILIP SLAYTON LEGAL ETHICS Ethically speaking, don't always defer to your elders Have faith in your personal ethical instincts, and be suspicious of what legal sophisticates may present as the way of the world. practitioner, government lawyer, or in-house counsel; whether you start out on Bay Street, in the burbs, or on a country road. Young lawyers worry about getting S clients, billing enough hours, impress- ing their boss, paying the rent, building a reputation, developing expertise, and having a future. Ethical issues don't appear nearly as pressing. If an ethical problem comes up, it seems natural and smart to defer to a senior lawyer in the firm or com- pany, or to consult the law society, or ask some wise legal mentor. Aſter all, if you're just starting out, what do you know? But, deferring on ethical matters to a lawyer who sports the proverbial grey hair is not necessarily a good idea. Just because someone has been around a long time doesn't mean that he has a high ethical IQ or his ethical sensibilities have been refined and honed by a long legal career. Quite the contrary, perhaps. Years on the battlefield may have taught a lawyer to be a brutal realist, to take no prisoners, to be ruthless in advancing his clients' interests, to ignore what seem to be exquisite and pointless is- sues of right and wrong, not to be overly "academic" in his or her approach, or to emphasize income rather than ethical sen- sibility. Innocence may have been lost a long time ago. I don't think young lawyers should tarting a legal career is daunting, whether you begin as a big-firm associate, member of a small partnership, solo hockey rink, and from reading and private rumination. Every good citizen has a general sense of right and wrong. Conflicts problems are an example. Lawyers know they must avoid conflicting interests in their defer to their elders, or, if they do, they should be very careful about it. Here's a bet- ter idea for someone starting out: Listen to your inner voice. I know this sounds like trivial advice from a paperback bestseller or TV pop psychologist. But, although ethical issues can have a technical side (e.g., "how should this law society practice rule be interpreted?"), they are really about applying your community's shared stan- dards and morality and a common view of good sense. Those things are learned from family and friends, in school, at the 16 A U GUST 2011 www. CANADIAN Lawyermag.com practice, but what's a "conflicting inter- est?" To paraphrase Rule 2.04(1) of the Law Society of Upper Canada's Rules of Professional Conduct, a "conflicting inter- est" is "an interest that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or pro- spective client, or that a lawyer might be prompted to prefer to the interests of a client or prospective client." All provincial law societies have much the same practice rules about conflicts. There are lots and lots of these rules, and commentaries on them, and, of course, cases (most notably the 2002 Supreme Court of Canada deci- sion in R. v. Neil). It's not long before we're spinning intricate webs of legal rhetoric, but the rhetoric is likely to be confusing, if not misleading. Most times, left to his or her own devices, the sensible lawyer will instinctively recognize a conflict of inter- est and doesn't need theory to do so. U.S. Supreme Court Justice Potter Stewart said in the 1964 hardcore pornography case Jacobellis v. Ohio that he couldn't define it but, "I know it when I see it." It's the same with conflicts. A youngish lawyer told me the fol- lowing story: His large firm represented a public company and, separately, the CEO and chairman of that company, who was TODD JULIE