I’ve always had a great deal of respect for the medical profession.

Unlike lawyers, accountants, Realtors, or even the clergy, the decisions they make affect life and limb. For doctors, ethical conduct isn’t just a means of maintaining the public trust; it’s an essential to their mandate of saving lives.

My doctor has this sign posted on her door:

To me, it demonstrates the importance of a values-based ethics system, over a rule-based ethics system.

In the end, we might be accountable to our clients and the profession. But if your values lead you to act ethically only when you are being watched, are you really an ethical professional?

The literature on business ethics often treats the topic far more superficially than ethics literature from the professions. Still, this short article from the Harvard Business Review’s Management Tip of the Day blog lends credence to the theory that there must be a common ground if ethics that runs through all disciplines.

The short post speaks of helping others while respecting their dignity, and remembering that you are always accountable to others.

Clearly, that is a lesson not only for business managers, but also for the traditional professions (including lawyers).

One of the best things about being licensed in multiple jurisdictions is the opportunity to observe emerging trends. The opportunity to see trends obviously applies to the development of case law and judicial attitudes.

One less obvious opportunity is to see changes in courthouse security. What I’ve seen is more than a little disheartening.When I started out, back in 1996-97, courthouse security – at least in my then home jurisdiction of Alberta, Canada – amounted to a once-over by the unarmed security guard sitting at the information desk. Once in awhile, during high-profile criminal cases, security might set up metal detectors at the entrance to the courtroom when the trial was underway.

Even in the immediate aftermath of 9/11, very little changed.

I traveled to Boston, MA (pop. 4,522,858) in 2005, and was taken aback when I was asked to walk through a metal detector complete with a manual wand scan, while my coat and bag were X-rayed at the entrance to the Suffolk County Courthouse. At the time, I chalked it up to post 9/11 skittishness, to be expected in a much larger city than my hometown of Edmonton, Alberta.

Even then, there was something that didn’t sit right; being asked to submit to a search as a pre-condition to entering a public building – a public building where the proceedings are built around being open to the public.

Since then, I’ve watched security intensify – I refuse to apply the word “increase” to what amounts to security theatre.

Back in Edmonton, the metal detectors moved downstairs, to the courthouse entrance. The security staff searched your bags while you walked through a metal detector. Of course, if you could produce a card to prove you were a lawyer, you could be waived through unmolested. Your clients, however, would not be accorded the same courtesy.

It was refreshing when I moved to Halifax, Nova Scotia, in 2007, to simply walk into court to use the library or argue in court as I pleased. More importantly, it was refreshing to watch the public enter the courthouse unmolested – so that they could see for themselves that our courts were meting out justice in a fair and transparent way. That, in the end, is the whole point behind public trials: that justice not only be done, but that it is seen to be done.

Even Halifax, however, has failed to resist the temptations of security theatre. Over the last year or so, at unpredictable times, and for unpredictable durations, the metal detectors appear, manned by security staff at the ready to inspect your belongings. Again, if you can prove you’re a member of the Bar, then you’ll be waived through – only your clients have to suffer the indignity of the presumption that they are up to no good.

At least I could find comfort in the relative politeness of the security staff.

Which is why I was galled when I appeared a few days ago, at the courthouse in Moncton, New Brunswick (pop. 126,424). There, I was met with a team of 8 to 10 security staff, all sporting bullet-proof vests. This new building also boasts metal detectors at the front entrance, and state of the art X-ray scanners befitting an airport.

Lawyers and the public alike must tell security staff why they are there.

“You a lawyer?”

Yes.

“Got a law society card, or a CBA card with picture ID, so we can see it?”

Yes.

Waived through. Some traditions, it seems, remain.

The difficulty I have with this is two-fold: firstly, as I stated earlier, a courthouse is meant to be a public building. Its public nature is more than the simple fact of being government-owned: it is a place where the public must be able to attend, unmolested and unintimidated, to see for themselves that their courts treat everyone before them transparently and fairly. Justice, not just done, but seen to be done.

The second issue that I take is with the surly behavior of the security staff, aided, no doubt, by the flack jackets and TSA style scanners. If some bureaucrat is able to make a bona fide case for airport quality heightened security at a courthouse in Moncton – or Edmonton, or Calgary, Toronto or Boston, for that matter – then security staff ought to receive explicit and firm instructions that they are to remain scrupulously polite to each and every person they encounter at the door.

They must be reminded that as necessary as someone thinks their presence is, it is inconsistent with the values of a free society – and that their necessity will be re-evaluated often.

I’m proud to announce the birth of my daughter, Amelia, born March 29, 2011!

Paul Horowitz at PrawfsBlawg has noticed that the economy appears to have an influence on how law students approach problems in legal ethics.

In particular, students seem to adhere to a more client-loyal view of legal ethics, rather than espousing the overarching duties that lawyers have to the court. This, Professor Horowitz says, leads students in class discussions to give answers that are aimed at keeping the client, rather than providing recommendations that might risk having the client take the file elsewhere. In addition, students tend to favour non-disclosure where ethical rules are permissive about the breach of confidentiality.

The post, and the observations in it, are fascinating. But they reveal the weaknesses inherent in a rule-based approach to ethics, as opposed to a values-based approach.

I have written here before, that in my view, it is not enough to articulate a set of rules, and then anoint them as the code of professional conduct applicable to a particular jurisdiction. Professor Horowitz’ observations illustrate the reason: there is no limit to human ingenuity when it comes to circumventing particular rules to suit one’s own circumstances.

And make no mistake: a tendency toward preserving the client relationship when lawyers perceive clients to be scarce is to favour the lawyer’s own interests over his duty to the justice system.

The better approach is to foster a legal culture that predisposes lawyers toward ethical conduct. This begins in law school by teaching students to value the integrity of the judicial system over the relationship with a client where the two are in conflict.

Public respect for the profession demands that lawyers act in ways that demonstrate not only that they can be trusted to further the client’s best interests, but that they will also preserve the system of justice as a whole. Preserving the integrity of the system cannot be something that is cast aside when the economy is difficulty. It is a value that should be near to the heart of every lawyer, irrespective of the state of the economy.

h/t: Legal Ethics Forum

My previous posts on this story can be found here and here.

On January 7, 2011, the perpetrators of the scheme were sentenced, and legal ethics hero Greg Adler received some well-deserved commendation.

The elephant in the room, however, remains the conduct of Commissioner Saldivar. Until his involvement in this unfortunate matter is fully investigated, the matter cannot be considered closed.

Stephen Gillers at Legal Ethics Forum posted a very interesting note about an excerpt from a talk that United States Supreme Court Justice Samuel Alito gave concerning the citation of philosophy in legal journals.

Justice Alito was critical of the practice. Mr. Gillers rightly asks what the problem is, and concludes, again rightly in my opinion, that there is nothing wrong with it.

I would even go a step further.

There seems to be a bit of a debate among American jurists about the legitimacy of citing foreign legal authority in support of new propositions of American law.

The arguments both for and against are well summed up by Steven G. Calabresi and Stephanie Dotson Zimdahl‘s paper entitled “The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision”. The authors conclude, interestingly, that while the citation of foreign legal authority is not a new phenomenon in American jurisprudence, it is not appropriate in cases that ask the Court to decide upon the intent of the Founders of the American Constitution.

As a Canadian lawyer, I must say that I find the debate curious. Perhaps it is because up until 1931, Canadian courts actually had, as a final court of appeal, the Judicial Committee of the Privy Council in London, England. Canadian constitutional jurisprudence has always looked, at a minimum, to the decisions of the House of Lords and the Judicial Committee of the Privy Council.

Later, Canadian law had regard to American jurisprudence, and even today, Canadian courts routinely cite the United States Supreme Court, the House of Lords (now the Supreme Court of the United Kingdom), and the High Court of Australia.

Obviously, those decisions are not binding on any Canadian court. They can, however, provide a different perspective, and guidance in deciding difficult and novel cases.

American jurisprudence is informed by American history, including the Revolution, and the idea that there is no assistance in citing foreign authority for decisions about the Founders’ intent does have some merit.

At the same time, my immediate instinct – clearly borne from Canadian legal tradition – wants to avoid being bound by the dead hands of the drafters of any constitutional document. Constitutional documents, we are told, should be like a living tree. I suppose that the upshot is that it requires the Court to engage in some policy making – something Professors Calabresi and Zimdahl caution against.

Still, if there is nothing wrong in citing philosophical texts, then there shouldn’t be anything wrong in looking to experience and wisdom from other jurisdictions whilst searching for the best answer to employ at home.

Interesting food for legal thought on both sides of the 49th parallel.

The Dutch law firm Houltoff Buruma is using a sophisticated computer game to select its new legal recruits. In “The Game”, legal knowledge doesn’t count for much.

What does this say about the future of legal practice?

The last two decades has seen the practice of law change considerably: The civil trial seems to be vanishing, at least partially because of the expense and risk of that process.

In its place, methods of what were once called “alternative” dispute resolution have become mainstays of litigation practice.

Mediation has seen stunning growth. At one time, more seasoned litigators considered it, at best, an obscure, alternative dispute resolution process, reserved for cases and clients whose issues revolved more around emotion than legal principle.

Today, mediation is firmly in the mainstream – in demand not only in the emotion-laden practice of family law, but also in commercial and insurance litigation.

Judicial settlement conferences, where judges meet with counsel and parties in an informal setting to try to settle the case, have become embedded in the rules of procedure for a growing number of jurisdictions. These sessions resemble mediation, but the judges are encouraged to give the parties a sense of how the settlement conference judge might decide the case had the evidence come out at trial.

Legal skills have always, and undoubtedly, will always include an encyclopedic knowledge of the law – not only as it relates to the issues in the case, but also the rules of evidence. Likewise, lawyers will always need strong negotiation and advocacy skills.

Lawyers, however, have not always been known for having good people skills. Yet people skills are exactly what Houtoff Buruma’s “Game” measures. Indeed, legal knowledge is not even required in order to play the “Game”. Instead, what the “Game” measures is creativity, leadership, problem-solving ability, and the ability to manage stress.

These skills play a critical role in a successful negotiation, mediation or judicial settlement conference, as well.

The challenge for future lawyers arises in part because these are not skills one directly acquires in law school. There is a saying that to a carpenter, the solution to every problem is a hammer. Lawyers have often been criticized as seeing legal proceedings as the solution to every client problem.

It has become somewhat cliché to say that lawyers have to offer their clients practical solutions, based around an understanding of the client’s needs and affairs.

Doing so requires not just the application of legal knowledge, but the application of legal knowledge by a creative mind skilled at finding creative, practical solutions.

That is much easier to articulate than it is to accomplish in practice. But to accomplish it in practice, and to do so consistently, is critical if the legal profession is to remain relevant.

Canada.com reports that counsel in the Norbourg class action are seeking fees equivalent to approximately 20 percent of their recovery.

While I have never shied away from criticizing excessive legal fees in class action litigation, the fees counsel seek in this matter, at least on the surface, are imminently reasonable.

Typically, the professional fees lawyers require in contingency fee cases hovers around 25 percent, and ramps up to about 35 percent when the matter is set down for trial. Usually, this excludes the lawyers’ out of pocket expenses.

Most often, contingency fee cases involve personal injury files where liability for the accident is admitted – the only real question is the amount to be collected.

Norbourg represents an entirely different kettle of fish.

That case involved the director of a mutual fund company who made off with nearly $130 million of investors’ money. The details can be found here.

A civil suit for the recovery of those funds would involve a very significant investment in time and expense, with the very real possibility that even if pursued to judgment, no funds would be available from which the judgment might be paid.

Class counsel appears to have recovered $55 million – that is very remarkable considering the nature of that kind of litigation. The fees they are seeking are low compared to other contingent fee litigation, and the amount sought recognizes a good result.

Hopefully, the court agrees.

Police in the San Francisco suburb of Castro apparently botched a drug raid on a private home on January 11, 2011, breaking in and placing law professor Clark Freshman in handcuffs, over his objections that police had the wrong house.

In fact, the information in support of the warrant indicated that police had cased the home for 2 days, but still provided an inaccurate description of the building they raided.

If that is true, it’s reprehensible.

My concern, however, is with the good professor’s own conduct.

SF Weekly quotes Professor Freshman pledging to sue until, in his words, “I see [the agents'] houses sold at auction and their kids’ college tuitions taken away from them. There will not be a better litigated case this century.”

A quote like this coming from a professor of law is troubling for at least two reasons.

Firstly, it demonstrates a disturbing lack of restraint. It’s easy to feel sympathy for Professor Freshman: his home was invaded based on a warrant that was founded upon an incorrect description of the home, allegedly obtained after a two-day stakeout.

The SF Weekly story was published over a month after the raid, yet still, the Professor refers to police as “pigs”. He aggressively threatens a financially debilitating lawsuit.

While that might be acceptable – even expected – from any other member of the public, it is not acceptable coming from an officer of the court.

The story isn’t clear on whether Professor Freshman intends to handle the suit personally, but it seems to suggest that he might. That would be a mistake, given the lack of objectivity and perspective evident from his interview.

Secondly, Professor Freshman’s words suggest that he intends to use his lawsuit as an instrument of personal revenge. That demonstrates a serious misunderstanding of the purpose for a civil lawsuit.

Tort law was never intended to be an instrument of punishment; instead, it is supposed to be a means of obtaining compensation. The idea behind the right to sue for damages, is that by obtaining a monetary award, the plaintiff is put, as best as the court can accomplish it, in the same position as if the wrong had not happened.

While the civil courts can, and often do award punitive damages, punitive damages should be measured, and meted out in a way that deters similar conduct in the future. They are not intended to be used as means of financially crippling the defendants and their families by taking away the tuition funds of their children.

If there was misconduct on the part of law enforcement, then that should be investigated and punished. But haughty, high-handed behavior by police should not be met with haughty, high-handed behavior by lawyers.

In the end, what is at stake is the credibility and integrity of the justice system. What Professor Freshman threatens to do would transform the law into a sort of gladiatorial contest.

Not exactly a good example of holding up the finest traditions of the profession. Worse, if those are the lessons his students take from his behavior.