The Labyrinth of Law: The Regulation of Lawyers and Ethical Conundrums

The Regulation of Lawyers: A Primer

The regulatory framework within which lawyers operate in Canada is imposed on the profession by statute. The purpose of lawyer regulation is to govern and administer the practice of law to ensure, among other things, the integrity of the profession, and the protection of the public interest. Lawyer regulation exists to: Lawyers in Canada are regulated by the Law Societies of each province and territory under powers given to them by provincial/Territorial Acts and statutes. Each provincial/Territorial law society has its own regulatory framework and operational structure. It is typical for professional legislators to draft broad legislation then allow the professional bodies to enact, through rules and regulations, the specific governing details. The provincial/Territorial acts establishing the law societies authorizes the law societies to regulate their members with respect to their conduct and the conduct of the profession , so long as the law societies act within the guidelines of their enabling statutes. The statutory model for lawyer regulation was designed to achieve two objectives crafted by the Supreme Court of Canada in the 1982 case of Pearlman v. Manitoba Law Society: The first objective serves to protect the public against unworthy practitioners. It is achieved by ensuring that practitioners are members of a self-regulating professional community having adequate standards of integrity, competence and discipline. The second objective is to maintain the integrity of the legal profession, so that it can credibly fulfil its duty to protect the public and the administration of justice. This objective is achieved by insulating the law society from outside control and interference in its affairs and by ensuring that practitioners maintain the standards of conduct required of them by the law society in its quest to meet its duty to the public.

The Ethics of Practice

Lawyers encounter a host of ethical dilemmas throughout their career. The most commonly known and imposed upon attorneys are the Rules of Professional Conduct, and those are followed within the context of the attorney-client relationship, including the issue of conflicts of interest.
Lawyers are arguably faced with the most conflicts of interest of any profession today. This occurs both at the time of retention by a client and during the litigation process. There is no clear cut definition or legal reference to a conflict of interest, however various references can be made to ethics opinions with the implication that a conflict exists when the interests of a party or a potential party are directly adverse to one another. The other scenario is when there is a significant risk that the representation of one party will be materially limited by a lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Each conflict is often decided on a fact specific basis as opposed to a one size fits all formulation.
The issue of confidentiality is one of the most challenging elements of an attorney’s ethical duties. Lawyers must continue to respect a client’s confidentiality after the matter is completed. What constitutes confidentiality? Generally, this concept can be defined as a lawyer’s duty to safeguard confidential information from being disclosed to a third party. Confidential information is not limited to an attorney’s work product or trial strategy, but also includes what can be characterized as private information shared by the client, the client’s identity (including the mere fact that the person has consulted with an attorney) and the client’s personal and financial details. This confidentiality obligation can also extend to the family members of the client. Likewise, even seemingly private information, such as a client’s past history, can be disseminated through the course of a divorce litigation as revealed to a witness on the stand in court during testimony, and is not then considered confidential, though it may have been initially disclosed to the lawyer only for the purposes of the litigation.
The attorney-client privilege is a legal extension of confidentiality. The privilege prevents disclosure of confidential communications between attorney and client at trial. Privileged information must be safeguarded and protected. The attorney should conclude that good faith efforts have been made to prevent disclosure of privileged information to another party when certain steps have been implemented to keep that information secret. No privilege exists if the client waived or failed to invoke the right. Waiver can occur when confidential communications are made in the presence of third parties. Even the unauthorized presence of a third party when a communication is made can create an inadvertent disclosure that could result in a waiver of privilege.

Law v. Ethics: Striking Balance

The strict legal regulations governing the practice of law present challenges to ethical and responsible practice. Navigating the law at the cost of one’s moral compass can have consequences far greater than sanction. Consider for a moment a few of the possible permutations. The legal duty to pay child support and the ethical duty to provide adequate representation conflict, or perhaps the statutory guideline amount for support creates an insurmountable challenge, or child support payments come due at a time when client’s resources have run dry, or client is adamant that her ex-spouse won’t pay any more than the guideline amount even if the court orders additional payment or client may spend the rest of his or her life behind bars rather than pay at a higher level than that of the guideline amount. In this same vein are many instances in which a criminal defendant is adamant that he will only pay his lawyer in "cash," and his refusal to provide the financial information required by the supreme court’s Financial Disclosure Form, is the only thing that stands between the defendant and the defense of his criminal case.
The ethical contractor who would increase her fee beyond the statutory guideline amount in a child support case, simply because the statutory guideline number is not commensurate with her expertise, may lose that opportunity to represent a worthy client who is in need of a good lawyer. What is one to do? The ethical lawyer must ethically withdraw from that representation and then decline to accept further refusals to represent the same party, even at a higher rate, during the course of the case.
Attorneys rendering criminal defense services are bound by the ethical requirement to avoid conflicts of interest and to keep their clients informed. Criminal defendants may be their own worst enemy when it comes to these ethical requirements. I have defended clients who were know-nothing about their drunken driving arrests. On Friday morning after the arrest, the client ordered me to plea him out of the charges. On Monday morning, he wanted to go to trial because he had figured out a reason why he was stopped by the police and arrested. My alertness to prosecute according to law, and my responsibility to keep the client and his mom informed meant that I had to explain things that made the client uncomfortable or made the family angry. It is not ethical for me to take any action to prevent the client or his mother from hearing all the facts, however distasteful they may be. My ethical obligations prevent me from not informing the client and his family while at the same time, avoiding representations that may not be ethically sustainable.
The same is true for clients who agree to plead guilty to saving money by not going to trial, but then become convinced that they will be found not guilty if they go to trial. Although I can discuss the possibility of trial with the client, I cannot promise the client that he will be found not guilty at trial. The potential savings achieved by pleading guilty is real; the possibility of going to jail for an extended period of years is also real. How do you explain a real possibility, without ruining your relationship with your client, for all time, which also makes it impossible to represent that client on future charges? When, and how, do you recognize that the relationship is irreparably damaged, and the client’s refusal to hear the inconvenient facts makes it impossible to represent them any longer? At some point, the challenge of balancing law and ethics means that when asked to do the impossible, it is time to ethically withdraw, and let the client deal with the consequences of that decision.
Some challenges require more creativity and thought than others. For example, the supreme court requires attorneys performing criminal law work to fill out and file a Financial Disclosure Form. The purpose of the form is to give the Financial Council the best information possible in order to determine whether or not the attorney practices criminal law adequately. However, in some cases, particularly in federal court practice, the client is adamant that he will pay in cash, and he does not want to provide the documentation required by the Financial Disclosure Form. As an attorney practicing in federal court, I am obligated to file a Financial Disclosure Form. But asking for a financial disclosure from my client, in this case, could mean losing the representation entirely, because the client is adamant in his refusal to pay by check or to divulge any information that goes beyond a verbal authorization for me to accept cash. Even if the client authorizes payment by check at the end of the case, the ethical difficulties inherent in practicing in federal court in these circumstances clearly outweigh the difficulty of getting paid in cash rather than check.

Ethics Violation and the Legal Profession’s Reputation

The consequences of misconduct extend beyond the offending attorney to the profession as a whole. That’s because the public pays attention when lawyers are held accountable for bad acts. As accountability increases, so too does public confidence in the legal profession.
Disciplinary actions can take many forms. The court has the authority to impose various forms of discipline ranging from a mere admonition or reprimand for minor violations of the Rules of Professional Conduct to a disbarment or suspension from the practice of law for the most serious offenses. The staggering impact of a disciplinary action on a lawyer’s career is not limited to his or her practice in California. The Board of Bar Overseers for the Supreme Judicial Court of Massachusetts reports that a number of states have adopted rules permitting or requiring their jurisdictions to rely on another jurisdiction’s disciplinary action in determining if reciprocal discipline should be imposed in the receiving state . Thus, the consequences of being disciplined in one state may be felt in another state where the disciplined attorney might practice in the future.
Similar to the linked fate phenomenon, discipline serves as an important reminder to the public about the rigorous standards we as lawyers are held to and the fact that violations of those standards will not be tolerated. This serves to reassure the public that their lawyer is a trustworthy member of the bar.
Accountability is a key ingredient to maintaining the profession’s reputation in the eyes of the public. The ability to instill public trust in the profession is one of the primary reasons for the existence of disciplinary boards and oversight committees. Basic fairness requires that attorneys who violate the Rules of Professional Conduct be reported and that corrective action be taken. It is not surprising that lawyers who obey the letter and spirit of the Rules of Professional Conduct wholeheartedly support ethics regulations that punish violations of the Rules.

Examples of the Ethical Quagmire

Case Study 1: Ignoring Confidentiality Rules
A law firm was representing a high-profile individual in a defamation lawsuit. The associate assigned to the case began discussing some of the facts with a close friend, not thinking anything of it. That individual did some research as to the circumstances surrounding the disclosure and the case, and left the social media site open for others to view without knowing. The client’s reputation took a hit and the confidence in his attorneys didn’t do much to help matters.
The Problem: The firm failed to set adequate restrictions on the dissemination of sensitive information, and the attorney shared the information to outside parties without thinking of the consequences, violating the client’s right to confidentiality.
The Lesson: Attorneys need to understand that confidentiality rules apply equally to social media platforms, and demonstrate a comprehensive knowledge of the ethics of client communication.
Case Study 2: Making Improper Discoveries Through Social Media
An attorney was handling a personal injury case. His client had serious injuries and the defense attorney had deposed both his client and his treating physician. At one point, the defense attorney sent over a request to produce and allow inspection of certain items like medical records and photos. At the same time, the defense attorney produced all of the plaintiff’s Facebook and MySpace pages. Upon inspecting the records, the defense attorney discovered a photo of his client water-skiing in a speedboat, seemingly unconcerned with her injuries and not complying with her jobs. The defense attorney produced the photo and called the plaintiff’s attorney to discuss the matter. Faced with the indisputable evidence that his client had been lying all along, the plaintiff’s attorney decided to have the case settled quickly.
The Problem: The plaintiff’s attorney believed his client’s lies and failed to ask for or demand production of the plaintiff’s social media information immediately, leading him to losing the most leverage he had in the proceedings.
The Lesson: Respect your client, but verify the information they give you in order to prevent them from making your job harder than it has to be.
Case Study 3: Employing Prosecutors on Contingency
A big break in the case of an organized crime syndicate had been made by one state’s attorney’s office; they had sent subpoenas to hundreds of the members’ family and friends for bank, phone, utility, and other records.
The Problem: They had evidence that one of the crime family members was donating to a popular campaign initiative, and offered immunity for a large number of subpoenas in exchange for information regarding the vote. However, it turned out that the politician had no intention of supporting the vote and was repaying the favor with campaign donations.
The Lesson: The pressure to win cases and support political allies can create ethical problems, so it’s best to stick to what you know.

Emergent Trends in the Regulation of Lawyers

Looking to the future, the regulation of lawyers will be increasingly influenced by the growing globalisation of legal services. We are already seeing a trend of more and more consumers sourcing, or desiring to source, their legal services online from other jurisdictions, and such services can be delivered by virtual law firms. The 24/7 nature of the internet will only accelerate this demand for and availability of legal services. Such availability is informed by the globalisation of legal practice, and this is likely to continue to develop despite resistance from localised government bodies. The harmonisation of qualifications and standards for legal practitioners coupled with the availability of legal services online means that foreign lawyers have the ability to provide an increasing range of legal services in many jurisdictions. The challenge remains that whilst there is freedom to provide legal services, certain types of work may be restricted to those with local practitioner qualifications; and the provision of these services may be regulated by the foreign of lawyer’s home legal professional body.
Deepening globalisation of legal services is being mirrored by the persistence of local understandings of ethics. To take an example, structural conflicts of interest, meaning business conflicts of interest (as opposed to ethical walls) are dealt with differently in each jurisdiction, as different conceptions of what constitutes ‘the firm’ evolve and are understood in different ways . Such divergence in the understanding of what constitutes ‘the firm’ leads to competing expectations of lawyers in terms of their conduct. Changes, no matter how minor, in the regulatory rules of one jurisdiction may have unforeseeable consequences and burdens abroad.
There are also significant drivers here to respond to the ongoing fragmentation of national regulators. Public trust in regulators has been undermined, leading to a move to share some of the burden of traditional regulators’ responsibilities to regulate foreign lawyers who do not have a presence in a foreign jurisdiction, though there remain conflicts within ethical duties, marketing, standards for professional conduct, and enforcement. This leads to a more complex ethical environment and removes the clarity that a single regulation authority provides.
The challenge for regulators moving forward is how to integrate all these different factors. For example, what does it mean when a lawyer from Dubai moves to Singapore? Will each disciplinary authority report this to their respective bar in the case of a violation? Which national authority will take the lead? Does the lawyer remain subject to their original authority’s ethical obligations? We are bound to see regulators develop a response to these issues they face as a result of these changes to the profession.