Working through ethical dilemmas

By Gavin & Brooke MacKenzie Summer 2018

Working through ethical dilemmas

 

This spring, litigators from across the province gathered at a Law Society of Ontario roundtable to discuss the complex issues that arise in practice surrounding ethics in litigation. As co-chairs of the roundtable, we organized a session to work through a series of mock problems, raising issues like joint retainers, the duty of candour, preparing clients as witnesses, and working with expert witnesses. Over the course of the subsequent panel discussion, participants shared and debated their findings and practical tips. Of the many valuable takeaways, here are three that we thought were most worth sharing.

1. There is value in working through professional conduct issues with colleagues

Although the rules of professional conduct may appear straightforward, it can be difficult to apply them to a real problem in your practice – especially if you are personally invested in the matter. It’s also easy to lose perspective when you’re used to advocating for your client, or when there is tension between your personal interests and professional obligations.

There’s no need to work through an ethical dilemma alone. Walk down the hall and run your approach by a partner – or if you work alone, pick up the phone and call a colleague to help you work through the options (being mindful of confidentiality issues, of course). Your colleague may support your instinct, which will make you feel more confident about your chosen course of action. They might also alleviate some of your anxiety about the situation by sharing a similar experience. Or they might raise a perspective you hadn’t considered. This happened at our roundtable session.

2. There’s often more than one right answer (and more than one wrong answer, too)

As we worked through our mock problem at the roundtables, a number of people raised issues that neither of us had considered during our preparation. Sometimes participants arrived at the same result, but for different reasons. In one case, groups totally disagreed about whether a lawyer could continue to act in a given scenario – and both articulated cogent, persuasive reasons for their views. The lesson: reasonable people can disagree.

Although some issues are black and white, it’s usually not that simple. There may be a few different “right” or reasonable ways to tackle a problem – but there are also many ways to make a bigger mess. If you think through your options and their implications, seek advice, and act deliberately, you’re much more likely to fix the problem (or at least improve the situation) than to make it worse.

3. To avoid getting hurt in an ethical minefield, slow down

In our practice, we are often called upon to deal with the consequences when a lawyer’s missteps with regards to their professional obligations have created a more serious problem – such as a disqualification motion, a solicitors’ negligence action, or a law society investigation or discipline matter. It seems that more often than not, lawyers’ errors could have been avoided if they had taken a bit more care with the matter at the outset.

The old expression “an ounce of prevention is worth a pound of cure” is good advice in our line of work. Taking 15 minutes to communicate with your client about expectations, then putting those details in writing, could save you months of headaches and untold expense. Whether it’s taking the time to put the terms of a joint retainer in writing, completing a thorough conflict check, or requiring more detail about a matter before you agree to take on a client, it is almost always a good idea to slow down at the beginning of a file in order to do things right – no matter how eager you and your client are to get started.

Gavin MacKenzie & Brooke MacKenzie practise together in Toronto as MacKenzie Barristers. Find them at mackenziebarristers.com. The opinions expressed here are their own.

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