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!

 

 

Advice to New Law Students

Quentin_Massys_-_Portrait_of_a_Man_-_National_Gallery_of_Scotland

(1) Think long-term:

(i) Be kind to your classmates. Building your professional reputation begins on the first day of orientation.

(ii) Compete with yourself, not others. The old adage of “look to your left, look to your right, because one of you won’t be here by the end of the year” is false.

Remember, “true nobility lies in being superior to your former self.” – Ernest Hemingway

(iii) Focus on understanding the material instead of fixating on the pursuit of good grades. As future officers of the court, you have a professional obligation to understand legal concepts. And, anyways, good grades follow an understanding of legal concepts.

(iv) Keep perspective. Although grades are important (future employers will use them as a lazy shortcut to weed potential employees out), ultimately grades are a footnote in your life journey. Trust me, no one is writing them on your tombstone.

(2) Learn the Basics:

(i) Before starting law school, read about the history of our legal system. History shapes the development of case law. Case law does not form in a vacuum, even for Lord Denning. “The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps” (Carter v. Canada, 2015 SCC 5). Look to Professor Dodek’s reading list to get started – http://bit.ly/1MtnuHu.

(ii) Review civil procedure before even touching case law. Case law makes infinitely more sense with an understanding of procedure. Procedure is intimately tied to the substance of the case. In particular, you should pay attention to learning the difference between appellate level versus trial level and interlocutory versus final decisions. Challenge yourself to spot them when reading case law. E.g. Is this an appellate case? Is this a motion?

(3) Read different textbooks:

Find a textbook that clicks with the way you think. Cheat on your syllabus and start “seeing” different textbooks. Maybe even different libraries. If you live in Toronto, go to the Great Library in your quest for better resources.

(4) Modify – Don’t Adopt:

Study as you studied before with minor tweaks. Professors will make a huge deal about summaries. Often people waste hours making them look perfect. This is stupid. You do not submit these summaries for grades. Write them for you.

(5) Enjoy the ride!

Three years goes by in a flash. It is a privilege to be in law school.