Civility in the Classroom

Last week I had the honour of guest lecturing at the University of Ottawa law school as the inaugural Cavanagh Williams LLP Practitioner in Residence. The topic was “Ethics in Advocacy”. It was an honour to be a part of the course “Professional Responsibility”.

The lecture began with an introduction of the topic by Professor Adam Dodek. Subsequently, I led a discussion of the principles of professional conduct. The discussion dealt with a variety of scenarios encountered in legal practice. There was a lively debate about how lawyers should handle swearing affidavits, disclosing relevant documents, and preparing witnesses for court (among other things). All scenarios were based on true stories that included ethical dilemmas.

The lecture ended with a group presentation on the meaning of civility and the principles of professional conduct. Of interest was a debate about the case Laarakker2011 LSBC 29. In that case, the lawyer Mr. Laarakker was disciplined by the Law Society of British Columbia for making discourteous remarks online and directly to an Ontario lawyer. Below are the discourteous remarks:

[12] After consulting with the client, the Respondent sent a one page fax letter to the Ontario Lawyer. The Respondent’s letter read:

I have been approached by [the client] with respect to your letter of October 30, 2009. Suffice it to say that I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to the only use for which it might be suitable, however uncomfortably.

It is disappointing when members of our profession lend themselves to this kind of thing. You must know that you are on the thinnest of legal grounds and would be highly unlikely to get a civil judgment against my client. That is aside from the logistics in bringing this matter to court in BC. I am also well aware that by preying on people’s embarrassment and naiveté you will unfortunately be able to pry some money out of the pockets of some of the humiliated parents.

I have notified the local paper of this scam. Save the postage in the future and become a real lawyer instead! You must have harboured dreams of being a good lawyer at one point. Surely bullying people into paying some small amount of money is not what you went into law for.

But then again, someone has to be at the bottom of his class, practising with a restricted license as you appear to be.

Good luck.

[13] Two days before sending the letter, on November 20, 2009, the Respondent posted a comment on the “Canadian Money Advisor” internet blog. The Respondent posted the comment in response to two postings made by an individual who had received a letter similar in nature to the Demand Letter. The Respondent posted on the blog as follows:

I am a lawyer.

This guy is the kind of lawyer that gives lawyers a bad name. He is relying on intimidation and blackmail to get the lousy $500. Don’t pay him. I hate these sleazy operators.

Speaking as a lawyer, he would have little chance of collecting in court. He would have rto [sic] prove that a chiold [sic] was a habitual criminal. As far as an adult is concerned, he has to prove the loss. Also remember this, he has to bring the action in a court near to where the incident took place (at least in BC) Gueuss [sic] what – that ain’t going to happen.

The Law Society of British Columbia fined Mr. Laarakker for his remarks. Apparently it’s distasteful for lawyers to air their dirty laundry in public. The Law Society concluded:

[45] As noted above, the Respondent takes the position that he was allowed, perhaps even compelled, to do what he did in the face of a “rogue lawyer”. Even if the Ontario Lawyer can be considered to be a “rogue”, it is not the Respondent’s place to pursue some form of vigilante justice against that lawyer by posting intemperate personal remarks or by writing letters that do not promote any possibility of resolution of the client’s legal dispute.

[46] Clearly, the appropriate avenue for the Respondent to take would have been to file a complaint either with the Law Society of Upper Canada or the Law Society of British Columbia. Obviously, the Respondent did not take those steps. Thus, by taking actions that he felt were protecting the integrity of the profession, he was achieving the opposite result.

(I personally disagree with the decision. Mr. Laarakker was warning the public about a scam. It was practically a public service announcement. Just because his tone could have been softened, doesn’t mean he deserved to be fined. After all these were questionable demand letters sent to unsophisticated individuals.)

I really enjoyed the class’s discussion on this case. It was interesting to hear the perspectives of students, especially considering that most of them are of the Facebook, Instagram, Snapchat generation.

The day ended with a small lunch with a few students. I had a wonderful experience, and I hope that the students enjoyed it too!

 

 

Fighting Fair: From Just Wars to Just Lawsuits

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Litigation is like war. Easy to start. Hard to end. Difficult to know how it will turn out.

In Fighting Fair: Legal Ethics for an Adversarial Age, legal scholar Allan Hutchinson argues that military ethics should be applied to legal ethics. He points out that merely looking to the laws themselves is not enough for evaluating ethical behaviour. The laws take their shape because of lawyers. “The clients they represent, the causes they advocate and the strategies they deploy all influence the law’s content and substance.” The law often grows in a way that “today’s frivolity may be tomorrow’s law”. Once derided as absurd, the concept becomes tenable and then eventually accepted as law. Furthermore, just because something is the law today does not mean it is right, as evident by the laws of Nazi Germany.

 The sobering truth is that the discursive resources and frameworks for evaluating the ethical merits of military action are much richer and more sustaining than that of legal ethics.

The main thrust of military ethics is that any and all violence in war must be justified. There are five conditions for a just war. They are:

  1. a just cause;
  2. rightful intentions (not simply to recapture something and not motivated by hidden / ulterior intentions);
  3. proportionate – there is more good to be achieved than the harm to be done by waging war;
  4. it is the last resort; and
  5. there is a reasonable chance of success.

The abiding objective of entering and waging a just war is to achieve a just and lasting peace, not a punitive and temporary victory. Accordingly, the goal of military action is not simply to win, let alone crush the enemy, but to work toward a future situation in which war will no longer be a possibility between the parties. It is considered that this cannot be achieved unless the victorious side negotiates a settlement that is fair and reasonable to both sides…. Any remedy achieved must be commensurate with the wrongful or transgressive conduct that gave rise to the hostilities in the first place…

[T]he negotiator’s primary duty is to be fair and forward-looking… Ethical lawyers will work toward settlements that are reasonable and defensible… In both military and legal ethics, it is paramount obligation to act both discriminately and proportionately. Indeed it is the ethical signature of the warrior as opposed to the hired gun to be both a good winner and a good loser.

Like a just war, lawyers should promote just lawsuits, using proportionate force to achieve their ends. These ends should be directed to a lasting peace and not to an ulterior motive.