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!

 

 

Professional Responsibility & Ethical Issues for Tax Lawyers

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The Ontario Bar Association hosted the event “Professional Responsibility & Ethical Issues for Tax Lawyers” on Monday. Professor Colin Campbell kicked-off the program by discussing the core ethical and professional considerations in giving tax opinions.

Legal opinions may be oral, implied, or written. An opinion refers to a statement as to what the court will decide, based on an informed judgment.

A client may sue a lawyer for three types of behaviour:

1) breach of a contract (the standard of care is implied);

2) breach of a fiduciary duty (like conflict of interest); and

3) tort (intentional and/or negligence).

The duty of care owed by a lawyer to his client could be defined by the retainer, and is generally limited to the material issues to the engagement. However, any privative clauses will be construed strictly against the person claiming the disclaimer.

The standard of care owed by a lawyer to his client is that of a competent lawyer. A competent tax lawyer understands the relevant legislation, case law, and the views of the Canada Revenue Agency. Lawyers have a duty to refer their clients to a specialist when they do not have the necessary competence to complete a task.

A third party may also sue a lawyer in tort. For negligence to be established, the third party must show  proximity between the lawyer and the third party.  A duty of care to third parties could arise when third parties rely on the mere existence of a lawyer’s opinion.

In providing legal opinions, lawyers must clearly outline where factual assumptions were made. It is best practice to obtain written confirmation from the client regarding the relevant factual assumptions. Some factual assumptions may be mixed fact and law, like residence.

Professor Campbell ended his presentation by reminding us that lawyers have a duty to be candid to their clients by providing honest, independent, and objective advice.