Run for the Border: Practicing Across Jurisdictions

In Canada, lawyers enjoy a great deal of freedom to practice outside their home provinces. Generally, if a lawyer has no pending criminal or disciplinary proceedings, and has no disciplinary record, he can practice in any Canadian province other than Quebec for up to 100 days per year without advising the host province’s law society.

This has given lawyers, particularly those in smaller jurisdictions such as Prince Edward Island, a lot of freedom to expand their practices to neighboring provinces.

The agreement that allows for this kind of temporary (and permanent) practice mobility between the common law provinces seems to be working extremely well. It offers members of our profession great opportunities to learn and experience different approaches to common procedural problems – as well as, occasionally, to common problems in the substantive law. That sort of breadth and depth of knowledge translates to a more flexible profession that is able to offer clients more options when it comes to trying to solve difficult legal issues.

But it also raises some interesting ethical issues, both for the lawyers who find themselves in another jurisdiction, as well as for the judges before whom those lawyers appear.

Lawyers

For lawyers, simple courtesy demands becoming familiar not only with the rules of court in the host jurisdiction, but also the particular practice that the local courts might have for certain situations. It’s often simple things, such as whether a local court requires gowning for a particular proceeding, that can be a source of embarrassment. While it might not be a serious breach, it is off-putting for the local court, disruptive to the proceeding, and potentially disadvantageous to the client, since counsel can’t help but highlight his out of province status.

Lawyers also need to be aware that each province has its own code of professional ethics, and that there may be minor differences between the one governing the host jurisdiction and the lawyer’s home jurisdiction. Lawyers must comply with both. Directly conflicting provisions are rare, but if there is any possibility of that kind of a conflict arising, then a lawyer should try to anticipate how the conflict will be resolved in advance.

Lawyers in every jurisdiction have duties of courtesy, civility and good faith toward every person with whom they must deal in the course of a representation, and those duties extend to practitioners from outside the jurisdiction. That includes accommodating reasonable requests for extensions, and the duty to refrain from sharp practice.

Lawyers are also always subject to the duty to be competent. This entails acquiring knowledge of the law related to the matter as that law is interpreted and applied in the host jurisdiction.

Judges

Perhaps the greatest danger for judges called upon to decide matters involving counsel from outside the jurisdiction is to allow themselves, or their court, to be perceived as tending to favour local counsel. The ethical principles to which judges are subject do not change when counsel is from outside the jurisdiction.

Although the Canadian Judicial Council’s publication entitled “Ethical Principles for Judges” is not intended to be a binding code of professional conduct for judges, the principles it enunciates are instructive.

Principle 3 under Chapter 1, states that an independent judiciary is the right of every Canadian. It goes on to state that a judge must be and be seen to be free to decide honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone. Every precaution should be taken to avoid the appearance that the case is being decided in a particular way because of the client’s choice of counsel.

Chapter 6, entitled “Impartiality” explores that duty even further. It provides that judges must be and should appear to be impartial with respect to their decisions and decision making. The principles under that Chapter emphasize the point, stating that judges should strive to ensure that their conduct, both in and out of court, maintains and enhances confidence in their impartiality.

The commentary under Chapter 6 provides the explanation:

A.5   A reasonable perception that a judge lacks impartiality is damaging to the judge, the judiciary as a whole and the good administration of justice. Judges should, therefore, avoid deliberate use of words or conduct, in and out of court, that could reasonably give rise to a perception of an absence of impartiality.

No complete catalogue can be made of the particular ways in which this type of perceived impartiality might manifest itself, and indeed, the duty is simply to treat all counsel and parties equally, irrespective of where their home offices might be located. Ultimately, the best that can be said is that counsel from outside the province should not come to expect lengthier delays in the rendering of a decision, more onerous discretionary orders, and the like, than local counsel expect from their judges.

Fortunately, the quality of the Canadian judiciary is known the world over for its excellence and professionalism. Still every precaution should be taken to safeguard and improve that reputation.

Conclusion

The ability to appear before different courts in different jurisdictions provides both the bench and the bar with significant learning opportunities that have every possibility of creating a net benefit to the clients we serve.

While there will certainly be challenges, we should not underestimate the ability of our professionalism to handle the changing landscape.