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opinion Counselling fraud is an offence under the Criminal Code, but in most cases taking on additional debt when consid- ering bankruptcy does not amount to criminal fraud. What about ethical rules set out by provincial law societies? They don't help. The Law Society of Upper Canada's Rules of Professional Conduct has noth- ing directly on point, although I suppose some rules might apply tangentially — for example, rule 2.02(5), which says: "When advising a client, a lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct, or instruct the client on how to violate the law and avoid punishment." The Law Society of British Columbia Professional Conduct Handbook is a bit more to the point. Paragraph 6, Chapter 4, says: "A lawyer must not engage in any activity that the lawyer knows or ought to know assists in or encourages any dishon- esty, crime or fraud, including a fraudulent conveyance, prefer- ence, or settlement." The Nova Scotia Barristers' Society Legal Ethics Handbook, commentary 21.3, contains the usual bromide: "The lawyer has a duty not to subvert the law by counselling or assisting in activities which are in defiance of it and has a duty not to do anything to lessen the respect and confidence of the public in the legal system of which the lawyer is a part." There's a lot of tricky issues here. Go back for a minute to the questioning of Milavetz counsel by the U.S. Supreme Court judges. Alito asked: "Well, let's say someone goes to the lawyer and they discuss the person's debt situation and the decision is made that a bank- ruptcy petition is going to be filed at some future date. Do you think that everything that that person does after that point is done in contempla- tion of bankruptcy?" Chief Justice John Roberts won- dered what a lawyer should say if asked by a client, "I know we are thinking of filing bankruptcy, but I want to go to Tahiti and charge it; can I do it?" Later the chief justice added: "What if the person takes a trip to Tahiti every November? They've always done it. They are not intending to defraud the debtor. They are just doing what they have always done." Ginsburg inquired what the lawyer could tell the client about paying legal fees. Asked Sotomayor: "How about the person comes in, shows the attorney his or her financial state. There is no money to pay the fee. The attorney simply gives a bill and says, 'I need it by Friday.'" How does a Canadian lawyer deal with problems like these, in the absence of formal legal and ethical require- ments? Feeble as it sounds, I think he or she has to fall back on a sense of what the society he or she works in regards as right and wrong (often not an easy thing to figure out). Most people in this country would probably consider it wrong to advise or help a client con- templating bankruptcy to incur more debt, save in the most dire of circum- stances. That doesn't mean, of course, that a client can't be told that it may be lawful to do so. Whenever I suggest in these pages that community morality should have a role in determining legal advice, I get e-mails telling me that I just don't under- stand what being a lawyer is all about. My inbox is waiting: philipslayton @hotmail.com. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com or fill up his inbox at philipslayton@hotmail.com. Read the transcript for Milavetz Gallop & Milavetz v. United States at www.supremecourtus.gov/ oral_arguments/argument_transcripts/08- 1119.pdf www. C ANADIAN Law ye rmag.com M ARCH 2010 19 ntitled-3 1 2/10/10 9:51:15 AM