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Keeping up with the times

The practice of law has changed. Do we need to modernize lawyers’ codes of conduct?

Old meets new

Codes of conduct are there to guide lawyers in following the right course of action when faced with an ethical dilemma. But the profession, and our system of justice, have evolved in unexpected ways, and so there comes a time when it becomes essential to take a close look at their contemporary relevance. The CBA and the Federation of Law Societies of Canada have chosen the upcoming Legal Ethics Forum to ask whether the current codes are achieving their purpose and what should change. The timing is appropriate, as this year marks the 100th anniversary of lawyer codes of conduct in Canada, which began with the Canadian Bar Association’s Canons of Legal Ethics.

According to Stephen Pitel, professor at Western University’s Faculty of Law, the rules of professional conduct for lawyers were initially conceived to guide a profession organized around small private practices. Much has changed since those days. “And so many of the rules tend to treat that paradigm as though that was all that really needed to be discussed,” says Pitel.

Another significant change to keep in mind, says Malcolm Mercer, the Treasurer of the Law Society of Ontario, is that codes were first drafted before the emergence of administrative justice. The courts are no longer the only setting in which disputes are resolved today.

“Administrative justice looks in some cases quite different from the traditional adversarial system,” says Mercer, who is also counsel at McCarthy Tétrault LLP in Toronto. “It’s interesting to reflect on whether the codes, when they talk about the duties of lawyers to their clients as advocates, apply in the same way in a system which is not necessarily as adversarial as the ordinary court system.”

And in two out of three family law cases, says Mercer, at least one of the litigants is not represented by a lawyer.

“The question is whether or not rules premised on the way things were continues to be effective for their purpose,” he says.

 According to Pitel, here are several areas where codes of conduct offer little or no guidance or, worse yet, unhelpful or inappropriate advice for certain practices, such as Indigenous and family law, or for public sector and in-house lawyers.

New rules ought to address these omissions, says Pitel. “Some of those changes could be addressed by modifying a few of the existing provisions and adding in a couple of others,” he says. “Some of them might be more fundamental, that they might require more work in terms of the drafting.”

Pitel suggests that current rules that presuppose the adversarial nature of the process should probably be updated at a time when the best interests of the child and collaborative practice is in the ascendency.

As the profession ages, we should also be rethinking notions around fitness to practice. There is also the matter of retired judges returning to private practice – something that was seldom heard of until the past decade.

Amy Salyzyn, professor at the University of Ottawa’s Faculty of Law, points to the need to address the competent use of technology by practitioners, as well as issues of diversity and discrimination.

As large firms have taken over a bigger share of the market compared to when small private practices ruled, there also may be a need for proactive regulation systems, she says. “When you deal with entities, a lot of what determines ethical conduct is what’s called ethical infrastructure,” says Salyzyn, citing the policies, procedures and systems that firms follow. “And looking at that ethical infrastructure, it may not be ideal to look at a code that sets minimum standards, black-and-white rules you have to reach.” Instead, organizations ought to consider the outcomes they want to achieve. Rules of conduct should aim to “encourage them to develop systems to meet those outcomes.”

The Nova Scotia Barrister’s Society has been a leader in this area, says Salyzyn. It recognizes that what is required for firms can’t always be achieved through a code.

“You still need codes to set minimum standards for individuals, but if we want to ensure that the public is protected, that the clients are getting the best service, we may have to look at different types of models as well,” says Salyzyn.

Codes are how law societies ensure proper conduct, adds Mercer. It only makes sense to recognize that conduct will be affected at the firm level. The Law Society of British Columbia has been working on firm regulation, and Nova Scotia has taken steps towards compliance-based entity regulation as well. As of January 1st, the Law Society of Saskatchewan requires all law firms in the province to register with it.

Elaine G. Cumming of the Nova Scotia Barristers’ Society, speaking in her capacity as a panelist for the conference, says that her focus is on the rules governing lawyers who become aware of misconduct and their responsibility to report it. Current rules, she says, don’t “clearly encompass a duty to report by lawyers when they are aware that there is misconduct going on within a law firm or by a lawyer.”

“The rule is more focused on conduct that might be harmful to a client as opposed to conduct that is inappropriate in a situation where it could be staff, co-workers, colleagues, or even opposing counsel,” she adds. What’s more, the issue has to take into consideration challenges for anyone captured by the duty, such as article clerks or junior associates at a firm who might be faced with concerns about making career-limiting moves when making a complaint about a senior partner.

After 100 years, the question begs itself: Are we really keeping up with the times?