Canadian Lawyer

16 O C T O B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m I think there are two kinds of bound- aries, active and passive. Active bound- aries govern the interaction between professionals and their clients and are driven by the fiduciary nature of the relationship. They are easily expressed as rules or guidelines. For a long time the medical profession has been par- ticularly sensitive to active boundar- ies in a therapeutic setting. There is substantial literature on the subject. The list of exhortations to doctors and nurses seems endless. No sharing of personal information. No nicknames or endearments. No romantic or sexual involvement. The list goes on and on. Active boundaries have been similarly explored in the teaching profession. Don't be Facebook friends with a stu- dent. Don't send a student a personal e-mail. Don't drive him home after class. No touching. Etc. etc. Then there are passive boundaries. These are subtler and cannot easily be expressed in rules. They are the bound- aries that allow professionals to prevent their work-related concerns intrud- ing on and damaging their personal life. Don't bring your clients' problems home with you. Don't treat your loved ones as if they were patients or clients or pupils. Have an autonomous life. Distance, distance, distance. Who could survive as a pediatric oncologist with- out well-developed passive boundaries, without leaving the illness and death of children at the hospital door, heartless as that sounds? So what about lawyers? The pro- fession hasn't really dealt with active boundaries. There are a few warnings scattered about, here and there, not many. The Washington State Bar Asso- ciation, for example, warns its members of signs that they may be at risk of vio- lating boundaries. These signs include: altering the established management of communication (either more or less than the customary frequency of phone calls, written correspondence, e-mails and texts); changing billing practices (special financial arrangements, allow- ing bills to go unpaid); and providing special treatment (meeting at odd hours, providing your home phone number, allowing "drop-in" appointments, agree- ing to unusual requests). Why should we care about the violation of active boundaries, about signs like those identified by the Washington State Bar Association? The argument is that once objectivity is lost — once the client becomes more than just a client — two bad things happen. First, the quality of legal advice and practice declines. Second, the fiduciary relationship — created by the imbalance of power and knowledge, characterized by trust and confidence — is violated. As the fiduciary relationship collapses, conflict of interest arises and the client may be exploited. Is this argument sound? I'm not sure it is. Why should the quality of advice friend of mine runs a children's rights centre in San Francisco. The centre has a professional staff of about 30. It's a mix of lawyers and social work- ers. I asked my friend what differences she found between the two pro- fessions. Boundaries, she said. Social workers understand boundaries. Lawyers don't get it. Social workers are taught about boundaries right from the beginning. No one ever talks about boundaries in law school. It's a problem for lawyers, my friend told me. In her view, not having a clear sense of boundaries makes lawyers less effective in their work. L E G A L E T H I C S O P I N I O N @philipslayton Keeping boundaries Lawyers have trouble creating professional boundaries, and the causes are deep-seated and diffi cult to root out By Philip Slayton A

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