Lawyers after dark

The extent to which a lawyer’s non-professional activities should subject him or her to professional discipline can sometimes be a difficult minefield to navigate.  The question cannot be conveniently ignored, however.  It’s most often in social activities and personal interactions with members of the bar that a member of the public forms his or her first impressions of the legal profession.

The lawyer’s conduct in his or her professional life must be guided by 3 principles:  Firstly, the lawyer must at all times show integrity.   Any doubt about a lawyer’s commitment to honesty and right conduct understandably raises a cloud of suspicion over the whole profession.

Secondly, the lawyer must show commitment to uphold the law and the judicial process.

Thirdly, the lawyer must avoid questionable conduct, or conduct that tends to reflect poorly on the profession as a whole.   This last requirement is perhaps the most difficult to analyze, since what qualifies as “questionable conduct” is difficult to define.

Interestingly, the American Bar Association Model Rules of Professional Responsibility only appears to address a lawyer’s non-professional activities in its Preable:

[5] A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

Now, that must surely be a novel concept:  The Model Rules seem to suggest that the profession’s sole duty outside activities related to the actual practice of law is to adhere to the very laws the profession interprets for others.  Presumably, the whole point of interpreting law for a client is to assist the client in keeping within the law’s confines.  The public should find it troubling that the legal profession feels compelled to remind its members that they have the same responsibility.

In my view, avoiding questionable conduct goes much further.  Lawyers, like all professionals, occupy a position of trust in society.  Even when a lawyer acts within the strict confines of the law, the lawyer must be mindful of creating the appearance that he or she has taken advantage of his or her specialized legal knowledge and skill to the detriment of others.

The Canadian Bar Association’s requirements, in my view, are more in line with what the public has a right to expect:

Preface

.          .          .

The essence of professional responsibility is that the lawyer must act at all times uberrimae fidei, with utmost good faith to the court, to the client, to other lawyers, and to members of the public. Given the many and varied demands to which the lawyer is subject, it is inevitable that problems will arise. No set of rules can foresee every possible situation, but the ethical principles set out in the Code are intended to provide a framework within which the lawyer may, with courage and dignity, provide the high quality of legal services that a complex and ever-changing society demands.

The extent to which each lawyer’s conduct should rise above the minimum standards set by the Code is a matter of personal decision. The lawyer who would enjoy the respect and confidence of the community as well as of other members of the legal profession must strive to maintain the highest possible degree of ethical conduct. The greatness and strength of the legal profession depend on high standards of professional conduct that permit no compromise.  [emphasis added]

.          .          . 

Uberrimae fidei is a concept with its origins in insurance law.  Its scope of set out in the often-quoted case of Carter v. Boehm (1766), 97 E.R. 1162 (K.B.) at 1164: 

Insurance is a contract of speculation… The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist… Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.

The parallel is subtle.  In most of the free democracies, the legal profession is granted the right to regulate the conduct of its own members without interference from government.  Lawyers are also granted a virtually exclusive right of audience before the courts and an effective monopoly on the ability to offer legal advice.

This is a privilege that the profession must never take for granted, since it is given to the profession blindly – speculatively.  The public has very little in the way of information or ability to judge the quality of the services our profession provides.  The public must rely upon the profession to guarantee the quality of service that it makes available, and to discipline its members appropriately when the level of service fall short.

As a result, every dealing by lawyers with members of the public must be taken with that in mind.  The lawyer must remain above reproach.

We see this theme throughout the Canadian Bar Association’s Code.  I apologize to the reader for quoting extensively from the Model Code, however it is published as a PDF file without any ability to link to particular chapters.

CHAPTER I – INTEGRITY

RULE
The lawyer must discharge with integrity all duties owed to clients, the court or tribunal or other members of the profession and the public.

Commentary
Guiding Principles
1. Integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession.  If the client is in any doubt about the lawyer’s trustworthiness, the essential element in the lawyer-client relationship will be missing. If personal integrity is lacking the lawyer’s usefulness to the client and reputation within the profession will be destroyed regardless of how competent the lawyer may be.

2. The principle of integrity is a key element of each rule of the Code.

Disciplinary Action
3. Dishonourable or questionable conduct on the part of the lawyer in either private life or professional practice will reflect adversely upon the lawyer, the integrity of the legal profession and the administration of justice as a whole. If the conduct, whether within or outside the professional sphere, is such that knowledge of it would be likely to impair the client’s trust in the lawyer as a professional consultant, a governing body may be justified in taking disciplinary action.

Non-Professional Activities
4. Generally speaking, however, a governing body will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the integrity of the legal profession or the lawyer’s professional integrity or competence.  [emphasis added]

.          .          .

CHAPTER XVI – RESPONSIBILITY TO LAWYERS AND OTHERS

RULE
The lawyer’s conduct toward all persons with whom the lawyer comes into contact in practice should be characterized by courtesy and good faith.

.          .          .

CHAPTER XIX – AVOIDING QUESTIONABLE CONDUCT

RULE
The lawyer should observe the rules of professional conduct set out in the Code in the spirit as well as in the letter.

Commentary
Guiding Principles
1. Public confidence in the administration of justice and the legal profession may be eroded by irresponsible conduct on the part of the individual lawyer. For that reason, even the appearance of impropriety should be avoided.

.          .          .

Standard of Conduct
10. The lawyer should try at all times to observe a standard of conduct that reflects credit on the legal profession and the administration of justice generally and inspires the confidence, respect and trust of both clients and the community.

The American Bar Association Model Rules try to provide the lawyer with guidance as to what his or her professional duties are in a wide variety of potential situations the lawyer might encounter at work, but provides little in the way of guidance for the lawyer “after dark”.

The difficulty with this approach is two-fold.

Firstly, it produces a tendency in the profession for members to view professional responsibility as ending at the office (or courthouse) door.   While many may argue that they are not defined by their work, for members of the learned professions, this simply is not the case.

Every doctor, clergyman, and indeed every lawyer, as an individual will certainly have outside interests, and may well play different roles in the different aspects of his or her life.  That said, membership in the learned professions is a calling and inevitably touches every aspect of the member’s life.   The lawyer’s position in society is quasi-official, and the membership is not evaluated solely by their competence at work.  The profession ignores the inextricability of its members’ personal and professional lives at its peril.

Secondly, this approach encourages a rule-oriented attitude that proceeds with a view that if certain conduct is not specifically prohibited, then it must be allowed.  At the same time, the multiplicity of rules discourages the exercise of professional judgment.  Over time, the membership acts with a natural tendency to skirt as closely to the rules as possible when making decisions that impact upon the members personally.  In the result, a disconnect emerges between the manner in which the profession enforces the conduct of its members, and the public’s expectations from a profession in which it has reposed considerable trust and authority.

I argue that the better approach is to instill in the membership, an attitude that it has been shouldered with a special responsibility to the democracy in which it carries on practice.  Accordingly, every member must be above reproach, or the public will rightly consider that its trust has been abused.