Do Codes of Ethics Actually
Shape Legal Practice?
Margaret Ann Wilkinson, Christa Walker & Peter Mercer”
In theory, professional codes of conduct are sup-
posed to assist lawyers in choosing the appropriate
course of action when they are faced with an ethical
dilemma and it is expected that lawyers will, in prac-
tice, tm to such codes for guidance. A recent research
initiative undertaken by legal scholars at the University
of Western Ontario sought to examine the effectiveness
of codes of ethics in maintaining standards of behav-
iour within the legal profession in Ontario by examin-
ing the kinds of ethical problems confronting lawyers
in that province and the extent to which they were re-
solved through the use of professional codes.
This article examines the nature of ethical codes
in the legal profession and offers an analysis of par-
ticular results of the research initiative. The authors
conclude that the research demonstrates a lack of reli-
ance on professional codes for the purpose of resolving
ethical issues by the majority of lawyers practising in
Ontario. Moreover, the study revealed that such codes
tend to inhibit ethical deliberation by those lawyers
who refer to them for assistance in solving specific
problems. The results of the study will, in the authors’
opinion, encourage the legal profession in Ontario to
re-examine the efficacy of existing codes of profes-
sional conduct and the role they should play in shaping
lawyers’ ethical decision-making.
En th6orie, les r6gles de d6ontologie profession-
nelle devraient venir en aide aux avocats qui, faisant
face h un dilemme 6thique, sont appel6s A choisir la d6-
cision la plus adequate. On devrait done s’attendre A ce
qu’en pratique, les avocats fassent appel k ces r~gles
pour leur servir de guide. Une 6tude r6cente entreprise
par des chercheurs de l’University of Western Ontario a
tent6 de determiner l’efficacit6 des ragles de d6ontolo-
gin A maintenir les critres de conduite professionnelle
an sein de la profession juridique ontarienne, en exa-
minant les problmes dthiques auxqueis font face les
avocats de cette province, ainsi que la mesure dans
laquelle ces probl mes
sont r6solus A travers
l’utilisation des rfgles de deontologie.
Cet article examine la nature des r~gles de deon-
tologie dans le cadre de la profession juridique, et ana-
lyse certains rsultats particuliers de l’6tude. Les au-
teurs concluent que celle-ci demontre la faible utilisa-
tion des r~gles pour la rsolution de questions 6thiques
par la majorit6 des avocats ontariens. De plus, elle r&-
vale que de telles rfgles tendent a inhiber la delibera-
tion dthique de la part des avocats qui, en fait, les utili-
sent pour rdsoudre des problmes l6gaux particuliers.
Les r6sultats de cette 6tude devraient, selon les auteurs,
amener Ia profession juridique ontarienne a r~examiner
l’efficacit6 des rfgles de deontologie professionnelle et
le r6le qu’elles devraient jouer dana le processus dad-
sionnel adopt6 par les avocats en mati6re d’6thique.
“Margaret Ann Wilkinson, Associate Professor of Law and of Information and Media Studies, Uni-
versity of Western Ontario; Christa Walker, graduate of the Faculty of Law, University of Western
Ontario, now practising in Toronto with Blake, Cassels and Graydon; Peter Mercer, Professor of Law,
Vice-President (Administration) and General Counsel, University of Western Ontario. This research
was sponsored under a strategic grant from the Social Sciences and Humanities Research Council of
Canada.
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 45 McGill LJ. 645
Mode de r6ference: (2000) 45 RD. McGill 645
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Introduction
I. The Nature of Ethical Codes
II. The Study and Research Method
Ill. Findings
A. To What Extent Did Lawyers Refer to the Ontario Professional
Conduct Handbook?
B. What Types of Problems Were Lawyers Facing When They Referred
to the Handbook Specifically?
1. Lawyers Classifying the Problem as Involving Ethics
2. Lawyers Identifying the Problem as Other Than Ethical
3. Did Use of the Handbook Replace Ethical Decision-Making?
C. What Types of Problems Were Lawyers Facing When They Referred to
the Handbook Generally (and Not in Relation to a Specific Problem)?
1. Lawyers Who Classified Their Problems as Ethical, but Who Only
Referred to the Handbook in a General Sense, Not in Relation to
the Specific Problem Discussed
2. Lawyers Who Referred to the Handbook beyond the Context of
Their Own Problems, Which They Themselves Identified as Other
Than Ethical in Nature
Conclusion
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M.A. WILKINSON ET AL. – CODES OF ETHICS
647
Introduction
In theory, “professional codes are supposed to help lawyers choose among two or
more legal courses of conduct!” when faced with an ethical issue. Until relatively re-
cently in the history of law as a profession, codes of ethics have not been thought
necessary to guide lawyers’ conduct. In the past, lawyers would receive guidance on
“how to conduct [themselves] professionally in particular situations” from informa-
tion “handed down from one generation of lawyers to another through word of mouth,
[through] law society dealings in disciplinary matters, remarks from the bench and so
on.”‘ It was not until the beginning of the twentieth century that the North American
legal profession became interested in adopting formal professional codes of conduct.”
Generally, codes of professional conduct have been adopted by lawyers, as members
of a self-governing profession, in order to preserve public confidence in the profes-
sion’-and in turn, in its ability to self-govern. Indeed, in the context of a profession, a
code of ethics can be defined as “the formal statement of standards which the profes-
sional consults to guide his or her behaviour. It represents a statement of the roles pro-
fessionals ought to assume in specific situations. To that extent, a code is a formalized
statement of role morality, a unitary professional ‘conscience’.’ As these codes are
the formal statement of the ethical standards of the profession of which lawyers are
members, one would expect that when faced with a dilemma, lawyers would turn to
their professional codes for guidance and that these codes would actually assist law-
yers in choosing the appropriate course of action. However, the effectiveness of codes
of ethics in maintaining standards of behaviour within the legal profession has been
the subject of much debate over the last century.’
‘ .C. Zacharias, “Specificity in Professional Responsibility Codes: Theory, Practice, and the Para-
digm of Prosecutorial Ethics” (1993) 69 Notre Dame L. Rev. 223 at 231.
2 This article will use the terms “ethical code”, “professional code”, and “code of conduct’ as hav-
ing the same meaning (see W.W. Pue, “‘Becoming Ethical’: Lawyers’ Professional Ethics in Early
Twentieth Century” (1991) 20 Man. L. 227 at 229 where he states that “the terms ‘ethical’ and ‘pro-
fessional’ are sometimes used interchangeably”).
3 B. Smith, Professional Conductfor Canadian Lawyers (Toronto: Buttersworth, 1989) at 6.
4 The first canon of ethics was adopted by the American Bar Association in 1904 (see D.L. Rhode,
“Why the ABA bothers: A Functional Perspective on Professional Codes” (1981) 59 Tex. L. Rev.
689). In Canada, the Canadian Bar Association (“CBA”) published the Canon of Ethics in 1920 (see
Pue, supra note 2 at 255), and in Ontario, the Professional Conduct Handbook, infra note 10, was not
created until 1964 (see D. Robinson, ‘Ethical Evolution: The Development of the Professional Con-
duct Handbook of The Law Society of Upper Canada” (1995) 29 L. Soc. Gaz. 162).
Ethics 311 at 318.
5 Robinson, supra note 4 at 165, n. 14.
6 R. E. Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirsf’ (1987-88) 1 Ga. L Leg.
‘See P. Mercer, M.A. Wilkinson & T. Strong, “The Practice of Ethical Precepts: Dissecting Deci-
sion-Making by Lawyers” (1996) 9:1 Can. J. L. & Jur. 141 at 141-42 [hereinafter “Ethical Precepts”];
Robinson, supra note 4 at 163-66.
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Two of the major thrusts of the research initiative entitled “Professionalism or
Profit: The Changing Nature of Legal Ethics”8 were precisely to ask: “To what extent
do practitioners turn to [their code of ethics] … in solving ethical issues?” and “To
what extent [does the code] provide the assistance which practitioners seek in solving
ethical dilemmas? To what extent [is it] perceived to provide solutions? To what ex-
tent [does the code] obviate the necessity for ethical decision-making in favour of ac-
ceptance of perceived authority?”9 The research describes the types of problems con-
fronting lawyers which lead them to seek assistance from codes of ethics. Finally, the
study can assist in determining whether revising or amending codes will have any ef-
fect on the behaviour of lawyers governed under such codes.
This article presents certain results from that study, analyzing specifically
whether lawyers in Ontario consult their ethics code, the Professional Conduct Hand-
book”0 The analysis indicates that the Handbook is not considered to be a useful tool
for the majority of practising lawyers in Ontario. Furthermore, the findings demon-
strate that the Handbook actually inhibited the ethical deliberation of those lawyers
who referred to it for assistance in solving their specific problems. These results indi-
cate that the legal profession has serious issues to address regarding the continued use
of professional codes as a mechanism for shaping the conduct of lawyers in practice.
I. The Nature of Ethical Codes
Despite the fact that the modem introduction of ethical codes into the legal pro-
fession has been intended to help lawyers resolve ethical issues, not everyone agrees
that such codes should be used in the legal profession. The fundamental criticism of
professional codes stems from the very definition of what an ethical code is. By defi-
nition, ethics involves making moral choices between what is right and wrong. The
choice is made by the individual. Codes of conduct operate through external rules,
B This project was initiated in 1993 at the University of Western Ontario by M.A. Wlkinson, P.
Mercer, D. Buckingham, and B. Hoffnmaster. For a complete description of the project, see “Ethical
Precepts”, ibid For an empirical paper from the project which describes the presence amongst practi-
tioners of two distinct approaches to the lawyer’s role, see M.A. Wilkinson, P. Mercer & T. Strong,
“Mentor, Mercenary or Melding: An Empirical Inquiry into the Role of the Lawyer” (1996) 28:2
Loyola U. Chi. LU. 373 [hereinafter “Role of the Lawyer”]. For a further analysis of this role differ-
entiation, see M.A. Wldkinson, C. Walker & P. Mercer, “The Gendering of Roles in the Practice of
Law” [in preparation]. For a paper describing the other sources of information used by lawyers in
solving their problems in the study, see M.A. Wilkinson, ‘The Information-Seeking Behaviour of
Lawyers” [in submission, hereinafter “Information-Seeking”].
See ‘Ethical Precepts”, supra note 7 at 142.
Law Society of Upper Canada, Professional Conduct Handbook, 2d ed. (Toronto: Law Society of
Upper Canada, 1998) [hereinafter Handbook]. The Handbook contains the Rules of Professional
Conduct.
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M.A. WLKINSON ET AL. – CODES OF ETHICS
649
and as such, contradict “the notion of ethics itself, which presumes that persons are
autonomous moral agents”
The argument against ethical codes thus revolves around the idea that ethics are a
matter of personal virtue, and that a person cannot be made to be an ethical person
through the consultation of external rules. 2 Codes in the United States and England
have additionally been criticized as being class-biased. Some authors’3 argue that legal
codes of conduct reflect the social position of the drafters by promoting rules which
tend to prohibit activities of lower-class lawyers yet permit the activities of the elite
lawyers. The extent to which such bias is present in Canadian legal codes is un-
known.”‘ Ethics, runs this argument, are not something that can be legislated, but are
something an individual either has or does not have.” This position is echoed by some
of the respondents in a recent study about perceptions of practising members of the
Law Society of British Columbia (‘ LSBC”) regarding the LSBC’s anti-discrimination
and anti-sexual harassment rules. As one respondent succinctly stated, “[W]hat you
are talking about is an overall attitude and approach to life. You can’t legislate that”
“J. Ladd, ‘The Quest for a Code of Professional Ethics: An Intellectual and Moral Confusion” in
G.C. Hazard Jr. & D.L. Rhode, eds., The Legal Profession: Responsibility and Regulation, 2d ed.
(Westbury, N.Y.: Foundation Press, 1988) 105 at 105; see J. Honsberger, “Legal Rules, Ethical
Choices and Professional Conduct’ (1987) 21 L. Soc. Gaz. 113, who also argues that codes of con-
duct are at odds with the basic notion that ethics involves choice, not rules.
12 Note that ethical codes in the legal profession have also been criticized as being self-serving to the
profession. For a discussion on the reasons behind the publication of the CBA’s Canon of Ethics, see
Pue, supra note 2. Pue suggests that adoption of the code came in part from a recognition that the
trustworthiness of lawyers and their commitment to the collective good was no longer one that was
being accepted by the public. A professional code was thus seen as a mechanism which the legal pro-
fession could use to justify to the public the special privileges, roles, and income that lawyers enjoyed.
The notion that the promulgation of ethical codes is not simply a statement of charitable goals is
common throughout the literature. Rhode, supra note 4, argues that ethical codes are used by lawyers
to assure themselves of their special status and self-importance. This point was also noted by Pue, su-
pra note 2 at 228, who states that there is a “diverse body of literature [that] generally repudiates
claims that codes of ethics arise exclusively (or even primarily) from altruistic impulses … codes of
ethics are viewed as self-serving by many authors:’
13 Pue, supra note 2; R.L. Abel, “Why does the ABA Promulgate Ethical Rules?” (1981) 59 Tex. L.
Rev. 639.
‘4 FOe, ibid
“D.S. Kleinberger, “Wanted: An Ethos of Personal Responsibility – Why Codes of Ethics and
Schools of Law Don’t Make for Ethical Lawyers” (1989) 21 Conn. L. Rev. 365 at 370. Kleinberger
blames the conventional adversarial approach for the lack of ethical lawyers in today’s society. In his
view, the adversarial system allows a lawyer to separate a lawyer’s morality from the practical results
that the lawyer produces. As such, lawyers are not forced to think about the effects of their conduct,
and thus become desensitized to ethical issues. In his view, this is why “[piromulgating detailed codes
of ethics cannot reverse the damage” (Ibki) See also P. Worthington, “On Regulating Ethics” (1989)
Canadian Lawyer 13:9 (Dec. 1989/Jan. 1990) 44.
‘6 J. Brockman, “The Use of Self-Regulation to Curb Discrimination and Sexual Harassment in the
Legal Profession” (1997) 35 Osgoode Hall LJ. 209 at 218, quoting “Oscar”. In a study of 50 male
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Ethical codes are thus seen as being unnecessary since the potential for impact on
a person’s behaviour is minimal. Reed Loder points out that “the influence which any
code may have on lawyer attitudes and conduct may be sorely limited, since moral
predisposition predates entry into the profession.”” The same point has been acknowl-
edged by T. Morawetz who states that “codes … cannot transform the most callous
and self-interested operators into lawyers of conscience. At best, codes and training
can activate pre-existing inclinations.””
Not only have ethical codes been criticized as oxymorons and therefore unneces-
sary, several scholars have argued that ethical codes can actually have a negative effect
on ethical deliberation. Loder argues that ethical rules can impede moral development
in various ways. First, rules which create a minimum standard of behaviour deter
lawyers from “reaching beyond moral mediocrity”‘9 and may “foster undesirable
customs and habits:’ 0 This danger is articulated by one of the respondents in the
Brockman study, who stated, “You are dealing with lawyers. You are dealing with
people, that if they want to hide a clause or hide a fact, that’s what they do for a liv-
ing:’2′ A similar sentiment was echoed by another respondent, who stated, “First of
all, nobody ever reads the rules. Secondly, people are always going to be able to find a
way around them.”‘
Another way ethical rules can impede moral development is the fact that if law-
yers can simply turn to a specific rule when faced with a difficult moral problem, they
will be dissuaded “from rational deliberation and from accepting personal responsi-
bility for their actions, two characteristics of moral decision-making “‘ For example,
one of the respondents in the Brockman study (who thought that the anti-
discrimination rule would be effective) stated, “Lawyers, we like rules, and the rule is
there and we have to respect it”’24 Loder argues that by following specific rules, the
lawyer is deprived of the opportunity to deliberate and choose the course of action
lawyers and 50 female lawyers called to the Bar between 1986 and 1990, Brockman found that 73%
of the women lawyers sampled and 45% of the men thought that the anti-discrimination rule would
not be effective in reducing discrimination (ibid. at 239). The same practitioners were much more op-
timistic about the effectiveness of the anti-sexual harassment rule: only 30% of the women and 24%
of the men thought it would be ineffective (ibid at 228).
‘” Loder, supra, note 6 at 333. See also G. MacKenzie, “The Valentine’s Card in the Operating
Room: Codes of Ethics and the Failing Ideals of the Legal Profession” (1995) 33 Alta. L. Rev. 859 at
869; S. Toulmin, ‘ Ethics and Equity: The Tyranny of Principles” (181) L. Soc. Gaz. 240 at 244, both
of whom argue that ethical rules have only a limited role in influencing behaviour.
‘ T. H. Morawetz, “Lawyers and Conscience” (1989) 21 Conn. L. Rev. 383; Zacharias, supra note
1 at 386.
“9 Loder, supra note 6 at 312.
2 Tibid.
22 Brockman, supra note 16 at 219, quoting ‘Elizabeth”.
n Ibid., quoting “Holly”.
Loder, supra note 6 at 312.
Brockman, supra note 16 at 225, quoting “Jack”.
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M.A. WILKINSON ET AL. – CODES OF ETHIcS
that should be taken.’ Patricia Rizzo sums this point of view up by stating that
“[mI]orals become reduced to checking the code of professional responsibility; if the
code does not prohibit an act, the act is moral.”‘
Similar points have been made by other authors. Heidi Feldman argues that any
code of conduct that purports to regulate lawyers’ conduct through permissive and
prohibitive rules discourages practitioners from “sentimental responsiveness, a key
feature of good ethical deliberation “‘ Nancy Lee Firak asserts that professional codes
have the effect of insulating lawyers from the ethical consequences of their actions
because as long as the lawyers follow the rules, they will not be held responsible for
their actions. As stated by one lawyer, “[I]f the code, rules or an opinion sanctions an
activity, we separate our own consciences from the behavior, label the behavior ethical
and march forward with … full confidence’ 2′
There are two types of rules of professional conduct: hortatory and regulatory. An
hortatory code of ethics attempts to inspire members of the profession to a higher
standard by articulating the general principles and underlying goals of the profession.
A regulatory code, on the other hand, creates a minimum standard to which members
of the profession will be held accountable through the use of rules, whether permis-
sive or prohibitive.
There are advantages and limitations to both types of codes. An hortatory code that
articulates the collective goals and general principles of the profession can foster pride
and public respect for the profession. However, as Gavin MacKenzie points out, “some
issues of professional responsibility are sufficiently complex that it is impractical to ex-
pect individual practitioners to resolve them on the basis of general principles.” The
failure of a such a code to provide specific guidance to lawyers when faced with every-
day issues can be problematic: it can leave the public unprotected and result in practitio-
ners concluding that the code is useless and is something to be ignored’ Furthermore, it
has been suggested that lawyers are accustomed to applying “black letter” rules to a
particular fact situation. Requiring lawyers to determine the appropriate course of action
on the basis of aspirational goals may therefore be unrealistic.32
Loder, supra note 6 at 312.
PL. Rizzo, “Morals for Home, Morals for Office: The Double Ethical Life of a Civil Litigator”
(1988) 35 Catholic Lawyer 79 at 82.
H. Feldman, “Codes and Virtues: Can Good Lawyers be Good Ethical Deliberators” (1996) 69 S.
Cal. L. Rev. 885. Feldman suggests that a more appropriate method of creating good ethical delib-
erators would be through the common law.
2 N.L. Firak, “Ethical Fictions as Ethical Foundations: Justifying Professional Ethics” (1986) 24
Osgoode Hall L.I. 35 at 44.
M.M. Jennings, “The Model Rules and The Code of Professional Responsibility Have Absolutely
Nothing to Do with Ethics: The Wally Cleaver Proposition as an Alternative’ [1996] Wis. L. Rev.
1223 at 1226.
3See MacKenzie, supra note 17 at 869.
3, Loder, supra note 6 at 312.
MacKenzie, supra note 17 at 870.
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Codes that are regulatory in nature, on the other hand, have two main advantages:
they provide specific guidance in certain situations, and they create a minimum stan-
dard or yardstick to which the public can hold members of the profession account-
able. However, regulatory codes do have several limitations. First, it is impossible to
create a comprehensive code that will cover all situations.’ Second, the more numer-
ous and more specific the rules get, the less flexibility the lawyer has in choosing a
permissible course of action?’ Third, it is the regulatory ethical code which seems to
suffer most from the criticism of codes made by the scholars cited above who argue
that the increased specificity created by codifying ethical conduct has a negative im-
pact on ethical deliberation. Finally, codes that concentrate on regulation are per-
ceived to take focus away from the fact that the profession is there to serve the pub-
lic.35 Given the low public opinion of the legal profession in recent years. ‘ it is thought
that reminding both the public and, members of the legal profession that one of the
goals of the profession is to serve the public is important.”
It is apparent from the above discussion that a code that is either wholly hortatory
and inspirational or wholly specific and regulatory may be limited in its success. As
William Riddell stated, “[A] Code of Legal Ethics, if sufficiently general, is unneces-
sary-if specific, is dangerous!’ It is thought to be important that a good professional
code function on both levels, in an attempt to strike an appropriate balance among the
need to have general principles, the need to provide lawyers with specific guidance,
and the need to protect the public by having measurable criteria against which to
judge the conduct of lawyers. The question of what constitutes an appropriate balance
between these three goals is one that is often discussed in the literature.’
The code in force in the jurisdiction of this empirical study, that governing law-
yers in the province of Ontario, contains both hortatory and regulatory provisions.’
Initially, the extent of use of the two types of rules by Ontario lawyers was to form an
element of the analysis set out below. However, a review of the data indicated that al-
most all of the Handbook rules to which lawyers referred in this study were regulatory
rules, in the sense that the lawyers consulted the commentary to the rules-which in-
variably forms a regulatory guide for lawyers even when the rule itself is framed in a
hortatory manner.” It was speculated from a theoretical perspective that the more spe-
“Loder, supra note 6.
/biak at 313; MacKenzie, supra note 17 at 871.
MacKenzie, supra note 17 at 870.
Jennings, supra note 29 at 1225.
“MacKenzie, supra note 17 at 870.
NV. Riddell, “A Code of Legal Ethics” (1919) 55 Can. LJ. 297 at 303.
” See Loder, supra note 6; MacKenzie, supra note 17; Morawetz, supra note 18; Zacharias, supra
note 1; Feldman, supra note 27; and NJ. Moore, ‘The Usefulness of Ethical Codes” (1989) 1 Ann.
Surv. Am. L. 7.
For examples of hortatory rules, see Rules 1, 11, 12, 13, 14 of the Handbook, supra note 10. For
examples of regulatory rules, see Rules 2, 3, 5, 7, and 9 of the Handbook.
” See Robinson, supra note 4 at 170.
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M.A. WILKINSON ET AL. – CODES OF ETHICS
cific and regulatory the rule, the less independent the ethical decision-making of law-
yers would need to be. However, in the data, the fact that a lawyer referred to a regu-
latory, rather than an hortatory, rule turned out not to predict whether or not the
Handbook resolved the issues for the lawyer, nor did it predict whether or not the
lawyer engaged in independent ethical deliberation. Therefore, this element of the
analysis is not discussed further below.
The essence of the argument against having a code of ethics for legal profession-
als is that adherence to specific rules of conduct precludes moral development. This
article will look not only at whether lawyers in Ontario use their code of conduct to
solve their most pressing problems but also, if they do refer to the Handbook, how
they use it, including which rules are consulted. The article therefore provides empirical
evidence on whether, because of reliance on their ethical codes, lawyers are not exercis-
ing any independent ethical judgment, or whether, despite the existence of ethical codes,
there is still evidence of independent ethical decision-making by lawyers 2
II. The Study and Research Method
The study involved interviewing 180 lawyers in Ontario. It was conducted in four
centres, each a different size: one small centre’ one medium-sized centre, one large
centre, and one metropolitan centre. A sampling strategy was designed to mirror the
proportion of practitioners practising in private firms of various sizes in Ontario.” In
addition to the 150 private practitioners approached, 30 corporate counsel in the met-
ropolitan centre were asked to participate because the corporate counsel in the prov-
ince were overwhelmingly found to be practising in that size of city.” Each lawyer
participated in an interview with a law student research assistant which lasted between
thirty and forty-five minutes. At the interview, the lawyers were asked about decision-
making in the context of a problem involved in their practice, a problem which they
themselves identified.” They were not specifically asked to discuss “ethical” prob-
lems, even though the overall thrust of the research involved ethics. This was a delib-
erate strategy choice on the part of the researchers and marked a departure from the
kinds of studies previously done on professional ethics, such as those conducted
amongst Canadian family doctors.’ This approach was necessary given the breadth of
42See the discussion in Part III, below.
43 A truly small centre (under 10,000) had been included in the pre-test but the reluctance of the
lawyers in that centre to discuss their situations convinced the researchers to only include slightly
larger centres in the final study (see “Ethical Precepts”, supra note 7 at 149).
“‘”Ethical Precepts”, ibic at 150. The Law Society of Upper Canada (‘LSUC”) supported and as-
sisted this research initiative.
Ibid. at 151. The CBA also supported and assisted this research.
“This is known as the “critical incident?’ or “anecdote” approach (see R. Harris, “The Information
Needs of Battered Women’ (1988) 28 RIQ. 62; P. Dewdney & C.S. Ross, “Flying a Light Aircraft:
Reference Service Evaluation From a User’s Viewpoint’ (1994) 34:2 R.Q. 217).
47 These studies use the “vignette” approach, where subjects are given a prepared scenario and
asked for their comments (see RJ. Christie, C.B. Hoffnaster & M.A. Stewart, “Ethical Decision
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the research questions posed above. For example, the researchers were interested in
the use of the Handbook by members of the profession, whether that use fell within
the practitioner’s own conception of use in the context of an ethical problem, or
whether that use fell outside that conception. As another example, the researchers did
not want to bias the practitioners’ reactions to the study by anticipating an “ethical”
component to the problems which beset their practices.
After reviewing their interviews, which had been transcribed and from which any
text referring to the identity of the participating lawyers had been deleted, 86% of
participants allowed their interviews to be included in the database for analysis.” Of
these 154 participating lawyers, 25 were corporate counsel. Of the 129 private practi-
tioners, 22% were sole practitioners, 43% partners, 17% employees, and 18% associ-
ates.49 Chi-square tests were performed and indicated that the corporate counsel did
not differ significantly from their colleagues in private practice in terms of demo-
graphics.” This finding reinforces the generalizability of the findings from the inter-
views sampled to all practitioners in the province. In addition, although the sample of
private practitioners was not stratified according to gender in any way, female practi-
tioners represented 27% of those whose interviews were included for analysis in the
study and this corresponds directly to the overall proportion of female practitioners in
Ontario, found in 1990 to be 23% and in 1996 to be 29%.”
Making by Canadian Family Physicians” (1987) 137 Can. Med. Assoc. J. 891; RI. Christie et aL,
‘Ethical Decision-Making by British General Practitioners” (1989) 39 J. Royal Coil. Gen. Pract. 448;
C.B. Hoffmaster, M.A. Stewart & R.J. Christie, “Ethical Decision Making by Family Doctors in Can-
ada, Britain, and the United States” (1991) 33 Soc. Sci. Med. 647. For other studies using the same
type of approach, see S. Daicoff, ‘Ethical Decisionmaking by Attorneys: An Empirical Study” (1996)
48:2 Fla. L. Rev. 197; P. Dewdney & R.M. Harris, “Community Information Needs: The Case of
Wife Assault” (1992) 14 L.LS.R. 5; D.B. Parker, S. Swope & B.N. Baker, Ethical Conflicts in Infor-
mation and Computer Science, Technology and Business (Wellesley, Mass.: QED Information Sci-
ences, 1990).
” Note that the response rate information given in ‘Ethical Precepts”, supra note 7, was provisional
since the consent process had not then been completed (see ibid at 154 and at 155 (Diagram 3)). The
final figures are now available and were excerpted for the first analytical article published from the
project (see “Role of the Lawyer”, supra note 8 at 416 (Figure 8)).
* While the private counsel were intentionally proportionately sampled from across the range of
firm sizes, 15 corporate counsel were found to be predominantly practising with between 2 and 8
other lawyers, a setting characterized as medium-sized in the sampling strategy for the private practi-
tioners. Of the remaining corporate counsel, 3 were the sole lawyers in their workplace, 2 worked in
settings of between 9 and 30 practitioners, and 2 in settings of over 30 practitioners (information on
this variable was missing for 3 of the corporate counsel participants).
” The distribution of the ages of both the private practitioners and the corporate counsel was rela-
tively evenly split around the age of forty.
contribution to this article
” Numbers courtesy of the LSUC. The authors would like to thank the LSUC for its assistance and
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M.A. WILKINSON ET AL. – CODES OF ETHICS
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III. Findings 2
A. To What Extent Did Lawyers Refer to the Ontario Professional
Conduct Handbook?
Only 16% of the respondents mentioned the Handbook during their interviews. 3
To determine the reasons why the lawyers mentioned the Handbook in their inter-
views, it was necessary to examine in detail each transcript in which the Handbook
was mentioned. The goals behind this analysis were threefold. The first objective was
to discover what types of problems lawyers who referred to the Handbook thought
they had.’ It was expected that the lawyers who referred to the Handbook in relation
to a specific problem would have described their situation as an ethical problem or
dilemma, while those who only referred to the Handbook generally would have been
describing non-ethical situations given that if the lawyer had been faced with an ethi-
cal problem, he or she would likely have felt it necessary to refer to the rules of con-
duct specifically. The second objective behind looking at the specific language used
by the lawyer was to determine whether the lawyer considered the Handbook to be a
useful tool in resolving the issue. The final objective was to determine whether the
language used by each lawyer supports the assertion that ethical codes preclude ethi-
cal decision-making. In making the determination of whether the lawyer engaged in
ethical decision-making, the researchers looked for language that suggested the law-
yer had made an internal decision between right and wrong, as opposed to language
that suggested the lawyer made the decision solely through the consultation of these
external rules. It is important to note in this connection that this analysis is based
solely upon the available evidence of the transcripts. It is possible that the language
the lawyers used during their interviews did not mirror their actual deliberations when
faced with the problems they described. However, the interviews were carefully de-
signed to try to encapsulate the lawyers’ own experiences and thought processes.”
The transcripts from the twenty-five interviews during which the Handbook was
mentioned are categorized in Table #1. Eleven of these lawyers mentioned the Hand-
book in relation to the specific problem that they presented in their interview. The
52 All references to statements made by lawyers participating in the study are taken from the tran-
scripts of the confidential interviews held in various centres throughout Ontario. These are currently
archived at the Faculty of Law, University of Western Ontario.
53 A chi-square test was done to see if there was any significant difference in the use of the Hand-
book depending upon the gender of the respondents. There was no significant difference. Subsequent
chi-square tests were run to determine whether the numbers of those referring to the Handbook varied
significantly depending upon the size of centre and firm size in which the respondent practised, and
again there were no significant differences.
-q Of course, there may be another way to characterize the problem than the way the lawyer has
characterized it. However, since the focus of this analysis is on how lawyers perceive the Handbook
and the problems they face in practice, this article will only focus on what type of situation the lawyer
thought he or she was confronting.
“See “Ethical Precepts”, supra note 7 at 152.
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Handbook actually resolved the issue for six of these eleven lawyers. Two of these
lawyers found that the Handbook was helpful in resolving the issue, although not de-
terminative, while three of these eleven lawyers specifically stated that the Handbook
was not helpful in resolving their specific issue.
Fourteen lawyers mentioned the Handbook generally in the course of their inter-
views, although not as part of the direct discussion regarding the resolution of the
problem situations they had presented. Of these fourteen, eleven discussed the Hand-
book as being helpful in terms of defining their obligations and duties towards their
clients. The other three lawyers specifically referred to the Handbook as not being of
assistance in resolving issues that come up in practice. When those lawyers who spe-
cifically mentioned the Handbook in terms of ethical problems encountered by them
and those who made a general reference to it, outside the context of their specific
problems, are taken together, nineteen of the twenty-five who mentioned the Hand-
book had found it to be helpful in some context. While this tends to illustrate a posi-
tive role for the Handbook, it must be remembered that when the entire data set is
taken into account, the study actually indicates that only 5% (8/154) of the lawyers in
the study found the Handbook to be useful in resolving a specific ethical issue.
Table #1: Breakdown of Handbook Transcripts
Lawyers Who Mentioned the Handbook in Relation to Their Specific Problem:
Actually Resolved
the Issue
Was Helpfl in
Resolving the Lx
Not Helpful in
Resolving the Issue
6
2
3
Total
11
Lawyers Who Mentioned the Handbook Generally (Not in Connection With
Their Specific Problem)
Handbook Comdered Helpful
Handbook Not Conddered
11
3
Totad
14
B. What Types of Problems Were Lawyers Facing When They
Referred to the Handbook Specifically?.
Results from the data sample indicate that seven of the eleven lawyers who re-
ferred to the Handbook in relation to a specific situation classified the situation as
having some ethical component. Six of the seven classified the situation as primarily
ethical while the seventh classified her problem as primarily strategic, with some ethi-
cal considerations.
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M.A. WLKINSON ET AL. – CODES OF ETHICS
Table #2: Summary of Information from Lawyers
the Handbook in Relation to a Specific Problem
Issue Resolved by
Typeo fProblem
Lawyer
Handbook
Who Mentioned
Evidence of Ethical
Deliberation
Ethical
Components
No Ethical
Components
98
134
135
136
140
144
143
139
154
141
147
No
Yes
Yes
No
No
Yes
Helpful but not resolved
No
Yes
Yes
Yes
No
No
No
Yes
Yes
No
No
Yes
No
No
No
1. Lawyers Classifying the Problem as Involving Ethics
Lawyer #98
Lawyer 98 was acting for a client in a litigation matter when he became suspi-
cious that the client was pursuing the litigation for improper purposes. For Lawyer 98,
this clearly raised ethical issues. He stated: “T]he first thing we did was to consult
within the firm as to what our obligations were, to consider the ethical ramifications
of proceeding if what we thought was the case was in fact the case:’ In considering
his ethical obligations, he referred to the Handbook: “[We felt immediately that you
have an ethical responsibility not to participate in, and not to assist a client to poten-
tially commit a tort, the tort of abuse of process. … It is not appropriate under the rules
of professional conduct and we won’t do it. And I think it is quite a specific rule in
that regard.” However, the issue was not resolved by the Handbook alone. Lawyer 98
stated that he consulted senior lawyers in the firm because it was “valuable to obtain
the views of more senior people” before making ethical decisions. The decision was
made to confront the client. The client’s explanation satisfied the lawyer that the im-
pression he had formed was not the correct one. Hence, Lawyer 98’s response is an
example of the Handbook providing assistance to a lawyer in determining the
boundaries of appropriate conduct.
The rule Lawyer 98 is referring to is Rule 10, commentary 2(a) of the Handbook, supra note 10 at
29, which states:
The lawyer must not, for example … abuse the process of the tribunal by instituting or
prosecuting proceedings which, although legal in themselves, are clearly motivated by
malice on the part of the client and are brought solely for the purpose of injuring the
other party.
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Lawyer #134
Lawyer 134’s firm was acting for a company that produced hardware. Two senior
officers had left and entered into competition with the company. The officers were
subject to a restrictive covenant preventing them from doing so. The lawyer was in-
structed to commence an action to get an injunction against the officers for violating
the covenant and to seek damages. As part of the process, he was instructed to write a
letter to the distributor of the product produced by the senior officers to let the dis-
tributor know that there was an ongoing lawsuit in Ontario and that the senior officers
were subject to a restrictive covenant. The lawyer for the distributor responded by
saying that if that letter was published he would sue Lawyer 134’s firm. In the words
of Lawyer 134: ‘The decision that we had to make was –
are we going to continue to
act for this client in these circumstances and are we going to report ourselves to the
Law Society? Do you respond aggressively back to the other lawyer or do you ignore
it and hope it goes away?” Lawyer 134 clearly viewed the decision of whether to re-
port the incident to his client and the Law Society as an ethical problem. He stated
that the obligation to report himself to the client and to the law society came from the
Rules of Professional Conduct: “IY]ou’re dealing with integrity in advising the cli-
ents. You have to tell your client about it, and you’re ethically bound to advise the
Law Society if there’s ever a potential claim against you. You’re supposed to advise
its ethical, it’s being honest.”7 For Lawyer 134, the issue of
the Law Society –
whether or not to inform the client seems to have been resolved by this section of the
Handbook. He explained:
[Tihe instant I got the letter saying [1] might be sued, I wrote to my client ex-
plaining to him what the ramifications of that were. I told him that I had to re-
port myself to the Law Society, I told him that if the lawsuit was launched that
we might have to remove ourselves from the record and they should be getting
alternative counsel.
The issue of how to respond to the lawyer for the distributor, however, was viewed
more as a tactical problem. Lawyer 134 stated: “So the decision sort of was made that
you know, we’re going to try and answer his concerns now and hope that it goes away.
That was the tactic that we took?’
Lawyer 134’s response to the above situation supports the assumption that law-
yers faced with ethical problems consult the Handbook and the assumption that the
Handbook assists lawyers in resolving difficult issues. Furthermore, Lawyer 134’s
“The
lawyer here is referring to Rule 3 and Rule 5 of the Handbook, supra note 10. Rule 3 dis-
cusses the lawyer’s duty to “be both honest and candid when advising clients” (ibid at 7). Specifi-
cally, commentary 10 of this rule requires lawyers to inform the client promptly of any errors the law-
yer might have made in connection with a matter related to the client. Rule 5, commentary 15 dis-
cusses a lawyer’s duties once the lawyer has become aware that an error or omission might have oc-
curred. Under this commentary, the lawyer is required to immediately advise the client of the error
that has occurred and must also notify the lawyer’s professional indemnity company of the facts of the
situation.
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659
words also tend to support the argument that codes obviate the need for independent
ethical decision-making. His decision to inform his client and the Law Society was gov-
erned by the Handbook-the Handbook sets out what an ethical lawyer is supposed to
do in a particular situation and he followed this advice precisely. There was no evidence
in the transcript that Lawyer 134 had engaged in any independent thought.
Lawyer #135
Lawyer 135 was working on a file where there was one plaintiff and there were
about eight or nine defendants. She was acting for one of the defendants, a munici-
pality. The problem with the file was that the plaintiff’s lawyer had decided to start a
“paper war” and Lawyer 135 felt that the lawyer for the plaintiff was not acting in his
client’s best interest. She suggested:
I think he is making a case out of something that is not there. … The lawsuit has
been going on for at least [period of time] and I am sure that this lawyer has
billed far in excess of [sum of money] for what he has done so far; because this
lawyer comes from a law firm that likes to paper everybody to death. So I think
the client, the plaintiff client, will find itself in a situation where they have spent
so much money in it so far, that they can’t really get out of it. They feel they
should be getting something, and I think this lawyer is bleeding the client, and
encouraging them to continue the lawsuit when there is really no claim. … I
think his client is being led down the garden path.
Lawyer 135 characterized the situation as an ethical problem. In her view however,
the issue of what to do was resolved by the Handbook. She explained: “A client is free
to choose whatever lawyer they want to have represent them. And the basic rules in
the code of conduct say that as a lawyer I cannot contact the plaintiff individually and
say I think you are getting bad advice, perhaps you should get a second opinion.”8 As
with Lawyer 134, Lawyer 135’s response provides support for the assumption that
lawyers faced with ethical problems consult the code and suggests that codes decrease
the occurrence of ethical decision-making. When deciding whether or not to contact
the other client, Lawyer 135 simply referred to the appropriate rule, without giving
thought to whether any other considerations were involved
‘s Lawyer 135 is referring to Rule 14, commentary 7 of the Handbook, supra note 10 at 46, which
states: “The lawyer should not communicate upon or attempt to negotiate or compromise a matter di-
rectly with any person who is represented by a lawyer except through or with the consent of that law-
yer”.
‘ In this situation, Lawyer 135 might have considered whether she was obliged to report opposing
counsel to the Law Society. Under Rule 13, commentary 1 of the Handbook, supra note 10 at 43, a
lawyer has an obligation “to report to the Society any instance involving a breach of these Rules:’
Some might view the opposing lawyer’s conduct of encouraging the client to continue a lawsuit to
which there is no real claim as a breach of Rule 3, commentary 1 (lawyer must clearly disclose what
the lawyer honestly thinks about the merits and probably results) and of Rule 10, commentary 5 (the
lawyer should discourage the client from bringing unmeritorious proceedings).
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Lawyer #136
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Lawyer 136’s firm had been providing advice to the shareholder of a major real
estate developer. The firm also acted for a number of banks. The banks wanted the
firm to act for them in connection with the restructuring of the real estate developer’s
finances. Lawyer 136 appeared to recognize this as an ethical problem. He stated that
“[c]learly, we’re on opposite sides of the table, that’s a clear conflict of interest.’ The
issue was resolved by obtaining the consent of all parties. When asked where his defi-
nition of conflict of interest came from, the lawyer stated that it was “defined by
common sense, by law society rules and by the courts. And our own ethics.” However,
when further queried about whether he consulted the Handbook to determine the legal
definition of conflict of interest, Lawyer 136 replied that it was not necessary to do so
since “you just sort of know … when you are going to have a conflict:’
As with the interviews discussed above, Lawyer 136’s response provides support
for the assumption that lawyers faced with ethical issues consult the Handbook. How-
ever, his response indicates that he did not consider the Handbook to be helpful in this
situation because the conflict was so obvious. His statement that “you just sort of
know” suggests that the decision between what is right and wrong was an internal
one, a response that lends itself to the argument that ethics are internal to the individ-
ual and cannot be regulated by external codes.
Lawyer #140
A competitor of a major client of Lawyer 140’s firm approached the firm and
asked it to represent it in a matter that would not involve a conflict with the major cli-
ent. The lawyer’s firm was very interested in the type of work that the competitor was
offering, and there was also a potential for a long-lasting business relationship. The
lawyer clearly regarded this as an ethical dilemma-one of weighing the law against
his personal ethics. He explained:
The most recent difficult [decision] was trying to decide on an ethical basis
whether we would disclose to a very major client what he would regard as a
conflict of interest, but which wasn’t, i.e. a business conflict. We had been
asked to represent one of his competitors and we were quite sure that he would
feel that was inappropriate. It is not legally wrong. There is no conflict of inter-
est per se under the rules. … It was a professional/ethical decision.
When asked why he felt that the existing client had to know, Lawyer 140 replied:
[T]he basis of the professional relationship is full trust and confidence. And if
that client felt that we were holding out on him something that we would be-
lieve that he might find material, that could break down that relationship. If in
doubt you disclose, that’s the rule we follow in this office. There are other law
firms who are very happy to use the so-called “Chinese Wall”. The Law Soci-
ety has specifically pronounced that the Chinese Wall is not an acceptable con-
cept to resolve conflicts in law firms in Ontario. But [the other law firms] con-
tinue to do so, which I consider shocking and I wish the Law Society would en-
force it, because the result is that these people are keeping the clients, notwith-
standing the conflicts, ours not even being a true conflict, it was a business con-
flict, to the detriment of those who are behaving ethically. … The relationship
with a client is based on mutual trust and confidence … and you [just] can’t …
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have a proper professional relationship without full disclosure … you have an
oveniding obligation to make full disclosure because you are in a fiduciary re-
lationship. Even though it harms you, which in this case it obviously did.
In determining whether the situation was a legal conflict, Lawyer 140 consulted the
Handbook. He described the decision-making process as follows:
So he and I discussed it and he tried to find some way where we could justify
doing this, and as I said we could, legally; there was no breach of the Law So-
ciety rules, we just felt that it was inappropriate. That [the client] had to know,
even though we were pretty sure that the client would say, “No, I don’t want
that competitor in our office:’
The comments made by Lawyer 140 are significant because they illustrate that it
is possible for lawyers to engage in ethical deliberation, despite the existence of a pro-
fessional code. In this situation, the lawyer had imposed his own personal ethics of
what the lawyer-client relationship entails in addition to the obligations set out in the
Handbook.
Lawyer #144
A licensee and licensor both wanted Lawyer 144 to represent them on the same
patent deal. In deciding whether to represent both sides, Lawyer 144 stated that her
primary concern was whether to do so would violate the Handbook. She explained: “I
guess paramount was my liability problem, conflict problem and whether or not it
was in fact contrary to the conflict of interest rules of the Law Society.” After con-
sulting the conflict rules, ‘ she decided that she would represent both parties:
[We] looked at all the Law Society rules and everything, and it was decided it
could be done provided we did certain things … you have to advise them of the
conflict of interest, you have to get their permission to proceed. You have to tell
them that you can’t act for either party without it, you have to tell everybody
everything essentially. There’s nothing confidential … So nobody is kept in the
dark. … And I guess after discussing it with some people and when I felt com-
fortable that it wasn’t contrary to the Law Society, ifI laid out certain terms and
everybody agreed to those terms, then I could proceed and I certainly did that.
In addition to her concern about whether the situation would violate the conflict of
interest rules, Lawyer 144 also had ethical concerns about her ability to remain com-
pletely neutral:
You have to decide, you know, how much do I put in that would represent either
party’s interest it has to be fairly neutral for either side.., you can’t give pros and
cons, you just sort of take a very neutral approach, which I find very difficult to
do…. I don’t want the finger being pointed at me as doing something that wasn’t
appropriate, when in fact I tried my best to be as neutral as possible.
Lawyer 144’s concern that she remain neutral throughout the proceedings was so
strong that she intimated that she would probably not adopt such a similar position in
‘0 Lawyer 144 is referring to Rule 5 of the Handbook, supra note 10 at 11.
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the future. She noted: “[E]ven though we followed the guidelines, we did everything
we were supposed to do, and everybody’s on side, and everybody agreed, I’m not sure
if I’d do it again, just because I think it adds an extra level of stress and it also makes
you really think really hard about what you do:’
Lawyer 144’s comments are important for the following reason. Her words pro-
vide support for the theory that not only do professional codes reduce ethical deci-
sion-making but they also send the message that, as long as lawyers follow the rules,
they will not be held responsible for their actions.” Lawyer 144 stated, “[We] looked
at the Law Society rules and everything, and it was decided it could be done?’ At this
point in time there was no further ethical deliberation: the rules allowed the conduct
therefore the conduct could be engaged in. However, in the process of simply follow-
ing the rules of disclosure, Lawyer 144 became aware that there was more involved
than simply following the rules. She stated: “Even though we followed the guidelines,
we did everything that we were supposed to do… I’m not sure if I’d do it again?’ This
may suggest that even where a lawyer simply complies with the rules of conduct, he
or she can become aware that there are more than just rules to be considered, and in a
similar situation in the future, the lawyer will be much more inclined to engage in
ethical deliberation before simply following the rules.
Lawyer #143
Lawyer 143 considered her problem to be primarily strategic, with ethical over-
tones. A client wanted her to bring a motion to dismiss the action against the client
without giving notice to the other two defendants. A successful motion would have
benefitted the client, but Lawyer 143 thought that bringing the motion without notice
might have been considered unethical or in contravention of the Rules of Professional
Conduct. She observed that it was
… one example of decision-making where you had to consider your obligations
as a lawyer as well as your obligations to the client … If we proceeded …, the
best thing we could do for our client … [was to] get a dismissal right away. But
because we have a duty to the court and to fellow counsel, that might be seen
as sharp practice … That is something that is referred to in the Rules of Profes-
sional Conduct, where you do something that is a little questionable. It is not
forthright, it’s sneaky, and generally not desirable. 2
6′ See previous discussion in Part I, above.
62 Here, the conflicting rules that Lawyer 143 is referring to are Rules 10 and 14 of the Handbook,
supra note 10 at 29,45. Rule 10, commentary 2, ibid. at 29 [emphasis added], provides (inter alia):
The lawyer has a duty to the client to raise fearlessly every issue, advance every argu-
ment, and ask every question, however distasteful, which the lawyer thinks will help
the client’s case and to endeavour to obtain for the client the benefit of every remedy
and defence authorized by law.
Rule 14, commentary 4, ibid. at 45 [emphasis added], provides (inter alia):
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She stated that while it would have been in the best interests of her client to bring the
motion right away in the sense that it would have been a little bit easier, “in the end there
would be no substantial gain for the client that could not be remedied at a subsequent
motion.” This was weighed against the negative consequences of bringing a motion:
You have to understand when you appear before judges on a regular basis, you
want the judge to trust what you are saying. If they think you have done some-
thing sneaky in the past, something deemed to be a little sneaky, it will affect
your ability to appear before the judge on behalf of other clients and get a fair
adjudication.
For Lawyer 143, this was primarily a strategic problem. She stated:
Often we have to decide on a strategy, how we are going to do something, what
tactics we are going to use, putting aside the law, what procedures we should
be using. Often you have two or three different courses of action available to
you to achieve one result. You have to determine which is the most appropriate.
So you just consider all the facts of each individual case.
When asked how she would classify this particular problem she replied:
Procedural, the best way to get to the end result, and then there are some ethical
considerations. The ethical consideration was primarily, was this a sharp prac-
tice? Were we trying to, not deceive the court, but do something designed to,
sneaky. Sneaky and questionable, that’s all. I think under the Rules of Profes-
sional Conduct considered sharp practice, conduct unbecoming a solicitor, that
sort of thing.
Again, this interview supports the assumption that lawyers consult the Handbook
when ethical considerations are involved. In this situation, Lawyer 143 found the
Handbook helpful in resolving the issue in the sense that it defined sharp practice,
however, it did not dispose of the matter completely. Rather, the issue was resolved by
doing a risk assessment of which outcome would be more beneficial to the client and
the firm’s reputation.
2. Lawyers Identifying the Problem as Other Than Ethical
Two of the remaining four lawyers who mentioned the Handbook in connection
with their specific problems classified their situations as dilemmas without specifi-
cally identifying any ethical components (Lawyers 139 & 154). Two lawyers failed to
classify the situation with which they were faced (Lawyers 141 and 147).
The lawyer should avoid sharp practice, and should not take advantage of or act with-
out fair warning upon slips, irregularities or mistakes on the part of the other lawyers
not going to the merits or involving the sacrifice of the client’s rights.
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Lawyer #139
The problem Lawyer 139 faced was that two of his clients wanted him to act for
them in the same real-estate deal. There was a potential for possible conflict, so he
decided to act for the client of longer standing. Although he does not say so specifi-
cally, he seems to have viewed the problem as a dilemma. He stated: “I think that one
of the most important things that a practitioner has to learn to do is to say ‘no’…. I
said ‘no’ to acting for somebody … and that was a good clean decision…. One of the di-
lemmas that people get into often is they don’t know how to say ‘no'” While Lawyer
139 did make a vague reference to the Handbook during his interview in stating that “I
did the clean, correct, proper thing which you’re supposed to do according to the edicts
of the Law Society,”
it appears that he resolved the issue on his own without consulting
the Handbook. In response to a question inquiring whether he consulted any other per-
sons or documentary sources in making his decision, he replied that “I reflected only on
myself and made my own conclusions…. I made my own judgment”
As with the previous interview, Lawyer 139’s response suggests first that lawyers
do not necessarily consult the Handbook when faced with ethical issues and second,
that ethics involve the individual making choices between what is right and wrong.
Lawyer #154
Lawyer 154 was an immigration lawyer who had been visited by a refugee who
was trying to remain in Canada. After the first interview, Lawyer 154 went to the li-
brary to do some research on his client’s country. While researching, he discovered
that portions of personal information that the client had submitted had been directly
lifted from government documents at the research centre. Lawyer 154 viewed the
problem of what to do with his discovery as a dilemma. He explains:
These are the types of decisions that lawyers normally have to make; these pro-
fessional responsibility-type decisions as to, can you put forward a false story.
Obviously not. Do you advocate your client’s position as closely as possible to
the story they want to put forward? You have to decide, do you just send them
on to another lawyer because you can’t put forward this position? Do you con-
front them with the position and allow them to recant and come back with an-
ther story, and then go forward with that story? Or, I guess the most extreme
position would be, do you report them to Immigration. That [is] basically the
dilemma you [are] faced with in that type of situation…. That was the dilemma
I was in.
Lawyer 139 here is referring to Rule 5, commentary 5 of the Handbook, ibid. at 12, which pro-
vides (inter alia) that
if a conflict develops which cannot be resolved, the lawyer cannot continue to act for
both [parties] … and may have to withdraw completely. If one of such clients is a per-
son … for whom the lawyer acts regularly, this fact should be revealed to the other or
others with a recommendation that they obtain independent representation.
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For Lawyer 154, the dilemma was resolved by the rules set out in the Handbook Re-
porting his client to Immigration was rejected because of his professional obligation
of confidentiality ‘ Putting forward the story given by the client was not an option be-
cause it is not allowed under the Rules of Professional Conduct.’ For Lawyer 154,
“that was the end of the dilemma. … I think the rules of professional responsibility fit
the situation perfectly.” The only option permissible under the rules was to confront
his client with the truth. When his client refused to admit that the story had been made
up, Lawyer 154 informed the client that he could no longer represent him.
The reasoning set out by Lawyer 154 first supports the assumption that the Hand-
book is helpful to those who refer to it, and second, tends to support the notion that
professional codes preclude rational and ethical deliberation; upon deciding that the
Handbook rules applied to the situation, there was no need for Lawyer 154 to con-
sider the matter further.
Lawyer #141
It will be recalled that two lawyers, Lawyer 141 and Lawyer 147, did not use lan-
guage during their interviews which classified the situation which they were describ-
ing. Indeed, Lawyer 141’s interview was unique in that he refused to discuss a situa-
tion in which he had to make a difficult decision with respect to client matters. He did
not say during the interview whether he viewed this situation as an ethical problem or
dilemma. His refusal to participate was based on Rule 4 of the Handbook
[A]nd I referred you to Rule 4 of our Rules of Professi6nal Conduct, which of
course, govern my relationship with the Law Society of Upper Canada. And
Rule 4 states, “Mhe lawyer has a duty to hold in strict confidence all informa-
tion concerning the affairs of the client acquired in the course of the profes-
sional relationship, and should not divulge any such information unless ex-
pressly or impliedly authorized by the client or required by law to do so”
That’s the general rule, and then under the commentary and guiding principles
there’s [sic] special cautions given, under commentary 7, that “the lawyer
should avoid indiscrete conversations about a client’s affairs, even about such
things although the client is not named or otherwise identified.” And the con-
cern there is if this information is overheard or recounted by third parties, they
may be able to identify the matter being discussed and [this] could result in
prejudice to the client or embarrassment to the client. And it states, moreover,
the respect of the listener for lawyers in the legal profession will probably be
lessened. So in my opinion, even though your questions were apparently ge-
neric in the sense that the location of this interview wouldn’t be disclosed, or
the client names deleted, [in] my opinion the disclosure of that information, of
MThis is Rule 4 of the Handbook, ibid. at 9.
Lawyer W is referring to Rule 10, commentary 2(e) of the Handbook, ibid. at 29 which states:
The lawyer must not … knowingly attempt to deceive a tribunal or influence the course
of justice by offering false evidence, misstating facts or law, presenting or relying upon
a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise as-
sisting in any fraud, crime or illegal conduct.
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the facts, might identify the client, and that would bring the profession into dis-
repute. And I refuse to be recounting any of those fact situations, because I felt
that it offended this rule and the spirit of the rule.
However, the rule was not the sole basis for refusing to participate. He stated that even
if the Practice Advisory told him specifically that it was all right to participate in the
study, he still would not be involved because he would not “a) put my client in the po-
sition, in my mind, of offending the spirit of this rule; and b) put myself personally in
jeopardy of having to face discipline proceedings of the law society.” This concern
over personal liability, according to Lawyer 141, stemmed from the fact that the Prac-
tice Advisory is simply an advisory service, and that, notwithstanding his compliance
with the guidance given by the service, the Disciplinary Committee could still reach a
finding that he breached the rule.
Initially, it appears that Lawyer 141 may have been superimposing his own ethical
views in addition to those of the code. However, in explaining why he was refusing to
participate, he did not refer to any ethical concerns. In fact, his refusal was based on
the fact that he did not believe the Practice Advisory had interpreted Rule 4 of the
Handbook in an appropriate way. Viewed in this light, Lawyer 141 was simply fol-
lowing the edicts set out in the Handbook, and as such, his response lends further
support to the argument that codes have the effect of precluding moral development.
Lawyer #147
Lawyer 147’s firm was representing a client who began to suggest that the firm
was improperly handling the matter and that the firm was conspiring with the other
side. The firm and Lawyer 147 tried to reassure the client that her best interests were
being looked after. However, the client reached the point where she was ranting and
accusing the firm of all sorts of things. The firm made a quick decision to drop the
client. When asked what factors the firm and the lawyer considered when making this
decision, the lawyer replied: “We considered the solicitor-client relationship and the
fact that she was questioning that relationship. And the duty to our client to provide
the best service we could. But we also considered the fact that if there is no trust in
that relationship, then how could we fulfill our obligations?” Lawyer 147 felt that the
basis of the solicitor-client relationship was one of the rules of good conduct which is
“that a lawyer will provide the service to his or her client as they need it’
It was the
lawyer’s feeling that because the client did not trust in their abilities, they could not
represent the client or provide the best possible service to the client. As such, the firm
had no other choice but to cease representing the client. There was no evidence as to
how Lawyer 147 herself viewed the problem with which she was faced.
6 It is unclear to which rule the lawyer is referring. Presumably, she is referring to Rule 10 of the
Handbook, ibid. at 29, which requires a lawyer to represent the client to the best of his or her ability. It
is interesting to note that there is no rule which specifically requires a lawyer to drop a client in this
situation. The lawyer’s firm in this case made the decision that because they couldn’t satisfy this posi-
tive rule, they could no longer represent the client.
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M.A. WILKINSON ET AL. – CODES OF ETHICS
667
3. Did Use of the Handbook Replace Ethical Decision-Making?
The majority of these eleven lawyers who discussed the Handbook in relationship
to their specific problems stated either that the Handbook had resolved the issue for
them or that it was helpful in resolving the issue (Lawyers 98, 134, 135, 140, 141,
144, 147, and 154). This endorsement of the utility of the code occurred both in cases
where the practitioners had identified their problem as having an ethical component
(Lawyers 98, 134, 135, 140 and 144) and in situations where the lawyers had not
identified their problems as ethical (Lawyers 141, 147, and 154). Six of these seven
lawyers actually implied that the Handbook did in fact obviate the necessity of ethical
deliberation (Lawyers 134, 135, 141, 144, 147, and 154). Moreover, not all the law-
yers who used the Handbook to address problems which they identified as ethical
found it helpful in the resolution of those problem (Lawyers 136, 140, and 143).
C. What Types of Problems Were Lawyers Facing When They
Referred to the Handbook Generally (and Not in Relation to a
Specific Problem)?
As discussed earlier, it would be logical to assume that, since the Handbook is
specifically designated as a source of ethical guidance for lawyers in Ontario, lawyers
who did not refer to the Handbook in relation to a specific problem would have classi-
fied their situations as something other than ethical. However, our findings did not
support this expectation (see Table 3). Seven of these fourteen lawyers classified their
situations as ethical. The remaining lawyers classified their situations as strategic
problems or dilemmas. While none of these lawyers referred to the Handbook in rela-
tion to their specific problems, eleven of the these lawyers did state that the Handbook
was helpful in the general sense of defining a lawyer’s obligation to the client. Six of
these fourteen interviews provide support for the assertion that ethics are internal to
the individual and cannot be regulated by external rules.
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Table #3: Summary of Information from Lawyers Who
Handbook in Relation to a Specific Problem ‘
did not Refer to the
Type of Problem
Lawyer
Evidence of Ethical
Deliberation
Ethical Components
No Ethical Components
115
137
145
148
149
151
152
132
133
138
142
146
150
153
Yes
Yes
Yes
Yes
Yes
Yes
No
No
No
No
No
No
No
No
I
| 1 ”
l
Il
1. Lawyers Who Classified Their Problems as Ethical, but Who Only
Referred to the Handbook in a General Sense, Not in Relation to
the Specific Problem Discussed
Lawyer #115
Lawyer 115 was an in-house lawyer for an organization. Several allegations of
sexual abuse were made against members of the organization. The ethical dilemma he
was faced with was that the client was ignoring the recommendations the lawyer had
made in regards to these members. He stated:
[1] saw the potential for other people to be at risk because of the decision that
was being made, and was and continue to be greatly concerned because of that.
I also had to realize in myself that the opportunity –
people accuse corporate
and
counsel of being the conscience of corporations or at least trying to be –
the opportunity to be in that position would be sacrificed if I walked away be-
cause of the ethical dispute that was taking place. It’s hard to assess when
something is serious enough that you have to say, “I can’t work here any
more.”… So the personal, ethical considerations created the dilemma of,
“knowing what I know, what am I going to do about it?”
In deciding how to resolve the dilemma, Lawyer 115 mentioned the Handbook but
did not use it to resolve the issue. He stated:
” This table gives the same information as Table #2 except that it does not contain the “Issue Re-
solved by Handbook” column. This column was not needed in this table since these lawyers, in refer-
ring to the Handbook, were not using it to solve a specific problem.
2000]
M.A. WILKINSON ET AL. – CODES OF ETHICS
Looking at the Rules of Conduct for the Law Society of Upper Canada, and be-
fore completing my law degree, looking at the Rules of Conduct recommended
by the Canadian Bar Association, it was my personal conviction that practising
law on the basis of my Christian convictions and the ethical principles I find in
scripture was a higher standard that was being asked of me than either the Bar
Association or the Law Society. … [Mly first obligation is to God. And that
provides me with certain ethical hurdles that come into play even before I start
thinking what does the Law Society have to say, or what does the law have
to say.
However, he did say that the rules were helpful, in that they “reminded [him] of [his]
obligation to [his] client, and [his] obligation to society”
In deciding what to do, Lawyer 115 consulted his wife and several other lawyers.
He resolved the matter by writing a letter that said: “[T]hese are the recommendations
that had been made, this is the decision that you have made, and that’s contrary to my
recommendation. I think that you’re making the wrong decision and I want this letter
placed on the file with everything else pertaining to this matter” According to Lawyer
115, this position did not put him in violation of his ethical obligations to God or the
Rules of Conduct because he stood up for what he believed in and backed up his po-
sition in writing. His response provides further evidence that not all lawyers faced
with ethical issues consult the Handbook.
Lawyer #137
As in-house counsel, Lawyer 137 was responsible for minimizing the legal liability
of the company. The company was about to release a new product into the marketplace
and Lawyer 137 was concerned with the safety of the customers and potential liability of
the company. The difficulty for him was deciding how far to push the company (his em-
ployer) so that he discharged his duty to advise his client and at the same time did not
compromise his employment. In his words, this was an ethical dilemma:
But what do you do as a lawyer if you tell them what you think the legal stan-
dard is, and what the risks are, and what the potential liability is, and they make
a decision that accepts liability, and you think that’s an unreasonable risk to the
corporation? Therein lies the dilemma that a lawyer has, because who do you
talk to? … The president is the guy that probably hired you. And the president
views you as an employee. And if you want to be strategic employee, he views
you as the person who’d better be on his team, or your day’s going to be ruined.
The ethical considerations involved preventing injury to the customers. In deciding
how to deal with this situation, the lawyer stated that he referred to his own “internal
compass”:
Well, you have regard to what your own beliefs of right and wrong are. And
what you owe to other people. Then you have regard to what the law says. And
then you have regard to what your profession says. … [And then] you talk to
anybody whose judgment you trust to tell you whether or not they think your
internal compass is on point. The first thing you want is affirmation that “am I
nuts to be concerned with this, or is this a legitimate thing to be concerned
about?” … And ultimately, once I am satisfied that the “corporation’ has been
advised, and I’ve given the best advice I could give … then [the company] has
the opportunity to go wrong.
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For Lawyer 137, being satisfied meant going to a business level in the corporation
where he was satisfied that the corporation knew of all the risks of exposure associ-
ated with releasing the product. Although the lawyer did not refer specifically to the
Handbook in relation to his ethical dilemma, he did express the opinion that the
Handbook is useful in defining the lawyer’s responsibility to his client.
This response of Lawyer 137 is interesting for two reasons. First, it again con-
firms that not all lawyers who are faced with ethical problems turn to the Handbook
for assistance. Secondly, his response supports the view that ethical behaviour origi-
nates with the individual, not from the consultation of an external set of rules.
Lawyer #145
While researching an immigration case, Lawyer 145 called what he thought was the
human rights organization for a certain country. In fact, the organization was a govern-
ment front. The phone call could have potentially put his client and his client’s family in
serious jeopardy. In Lawyer 145’s words, he was in an “ethical jam”-he had to protect
his client’s interests and his own. He informed the client of his error immediately:
Then I just called up the client. … Basically resolved it by explaining to the cli-
ent their rights, whatever happened as a result of this that I would have to take
responsibility, they had a right to call the Law Society if they thought I made a
mistake. They had the right to seek other counsel to determine whether I had
made a mistake. On a personal level I told them I would fly any family mem-
bers out that they thought were in jeopardy.
The lawyer also talked of the conflicting duties involved in continuing to represent the
client. He stated: “The exact conflict is that to discharge my duty to my client prop-
erly I have to advocate fearlessly, energetically, all that stuff. In doing that I should be
hammering away at the increased risk I might have caused myself.’ In deciding how
to respond to the situation, Lawyer 145 did not refer to the Handbook but rather dis-
cussed the situation with colleagues: “[G]enerally with refugee problems, if I have an
ethical dilemma I talk to somebody inside and I generally talk to one of the two or
three sort of ‘Deans of the profession’ in the town:’ However, he did state that the
code was helpful in that it defined the lawyer’s duty to his or her client as the primary
obligation of the lawyer.
Lawyer 145’s classification of this problem as an ethical dilemma provides fur-
ther evidence that not all lawyers faced with ethical issues consult the Handbook. In-
terestingly enough however, Lawyer 145’s actions of informing his client immediately
conform exactly with Rule 3 of the Handbook. Commentary 10 under this rule re-
quires the “lawyer to inform the client promptly when the lawyer discovers that a
mistake, which is or may be damaging to the client and which cannot be rectified”
Presumably, Lawyer 137 is mainly referring to Rule 10 of the Handbook, supra note 10 at 29,
which requires a lawyer to represent the client to the best of his or her ability.
200]
M.A. WILKINSON ET AL. – CODES OF ETHICS
and that the lawyer “should recommend that the client obtain legal advice elsewhere
as to any rights the client may have arising from such a mistake.”‘
Lawyer #148
Lawyer 148 was general counsel for a corporation, and was also an officer of the
corporation as well. The president of the company, who was also the majority share-
holder, wanted the lawyer to do something that would probably not be as beneficial to
the minority shareholders. Lawyer 148 states that he was in a conflict-of-interest po-
sition:
The problem arises that there is a conflict of interest, and you have to be cau-
tious and careful of your role involved in this process, and be sure that you
protect the corporation, which is your employer, yourself, protect the control-
ling shareholder, himself, because he’s also relying upon you as counselor….
You always have to be very conscious of what your duties and responsibilities
are to the corporation and employees.
When asked whether he classified this as a legal or ethical issue, he responded:
It’s both. The conflict arises out of legal obligations. The response to it is many
times an ethical one as well as upholding legal rights. And the role of counsel is
very much an ethical one, and you have to be well aware of your responsibilities
to differing persons. And the utmost responsibility to fulfill your responsibility to
either one of them. And not to shirk your duties to one in favour of another.
In response to the question of the source of his ethical obligation, Lawyer 148 stated
that while the code of conduct is helpful in generally defining what is ethical, his
“own experience is more a feeling of what [he] know[s] is right, and what [he]
know[s] is not right.”
Again, this interview provides additional evidence that not all lawyers faced with
ethical issues consult the code, and that ethical behaviour comes from the individual.
Lawyer #14970
Lawyer 149 had a client who had given birth to a child with major health prob-
lems. The child had been placed with foster parents since birth. The foster parents
brought an application to obtain custody of the child. In Lawyer 149’s view, the foster
parents were in a much better position to care for the child than her client. Although
the lawyer stated that she would have pursued the wishes of her client even if she her-
self did not agree with them, she was faced with the issue of whether to challenge her
client, and if so, how much. She stated the issue as:
… [w]hether or not I was making the right decision in trying to educate my cli-
ent about what she was looking at in the future; should she pursue the instruc-
tions which she originally gave me? That was my hard decision to make, do I
Handbook ibid at 8.
‘0 Lawyer 149’s response is discussed in more detail in an earlier article that examines the role of the
lawyer (see “Role of the Lawyer”, supra note 8).
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accept it andjust say blindly “let’s go ahead and litigate this” or do I try and in-
form her? And my decision was to inform her, at least then it would be an in-
formed decision.
In deciding whether she should counsel her client or simply advocate her client’s
wishes, Lawyer 149 did not refer to the Handbook for any guidance. Instead, she
made the decision by considering personal characteristics of the client-she looked at
whether her client had the ability, both financially and emotionally, to care for the
child. When asked whether there were any ethical considerations involved, she re-
plied,
We have a code of professional conduct that indicates that we are to behave in a
certain manner and that we are to take our client’s instructions and act accord-
ingly. I guess the ethical dilemma is, do you move yourself from being the
counsel for the mother, to being an advocate for the child? That is something
that you have to be very careful of. I think you can look at both of those until
such time as the client gives you very clear instructions. Then you have to
move away from that joint experience into one where you say well I am advo-
cate of the mother.
Thus, Lawyer 149 seems to view the Handbook as helpful in a general sense because
it requires lawyers to follow their client’s wishes. However, it is not helpful in a spe-
cific sense because lawyers must still determine at what point they should cease coun-
selling and begin advocating their client’s wishes.
Lawyer #151
Lawyer 151 was faced with a situation where a major client of the firm had asked
him to relay something to the other side that was not true. The request was made dur-
ing the course of a phone conversation, making it necessary for the lawyer to give a
response immediately. The decision was further complicated by the fact that the law-
yer was new to the firm, and that after first refusing the client’s request, the client be-
gan to threaten him. In the lawyer’s words, he was faced with an ethical problem:
I think I was only out two years. I thought, boy, you know, where are my duties
now? And evaluating them on the spur of the moment was very difficult in the
sense that I have this ethics problem faced with and it is something to be dealt
with. It’s not like something, well, “Let me think about it and get back to you:’
It’s something that you have got to deal with right at the spur of the moment
and its not something that somebody is going to prepare you for either…. And I
said to him, I said to this particular client, I couldn’t do what he had asked me
to do…. And I can tell you that he was quite upset with me. He even insinuated
that he would deal with other firms.
In deciding how to respond to the client’s request, Lawyer 151 went with his “gut in-
stince’. He stated: “It was like, is this right or wrong? It’s improper, it’s wrong, there-
fore, do not do it. … I think when it comes down to that, you have got to look at it and
say, ‘Make a decision. Make a decision as to what is proper and what is not.” Although
Lawyer 151 did not refer to the Handbook in relation to the issue raised, he did express
his opinion on the usefulness of the code when he was asked by the interviewer whether
he ever consulted the Handbook for guidance. His response was as follows:
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M.A. WILKINSON ET AL. – CODES OF ETHics
673
Honestly, no. Really [Mi do not. … You have this, you are either ethical or you
are not. The rules, I think, are put down because people step over the line and I
think we as lawyers have to point out, well, that you stepped over the line and
should not have. Where do the rules of practice come from? The people. It is
prevalent now that people step over the line given a choice, that there is quite a
number that will do it, so now we have to define those lines and say, “Here it
is-step over it and you are going to get your hand slapped or get disbarred,”
whatever the outcome is. I would hope that we were different. I would hope
that we were more of a, that we would just deal with situations with integrity ….
[but] integrity is just inside, either you have it or you don’t.
Clearly, Lawyer 151 is of the view that the Handbook cannot make lawyers ethi-
cal. In his opinion, the only useful purpose it serves is as a means of disciplining law-
yers who step over the line. The actions of this lawyer support the argument that law-
yers cannot be made to be ethical persons through the consultation of external rules:’
Lawyer 151 made his decision not by consulting external rules, but by looking within
himself to determine “what is right and what is wrong”. As already discussed, this is
consistent with the notion of ethics itself.
Lawyer #152
Lawyer 152 was counsel for a non-profit organization that worked with chal-
lenged persons. Two of the persons being cared for became involved in criminal pro-
ceedings-one as victim, one as aggressor. The lawyer had to decide how to advise
the organization so that no conflict of interest would be created. He classified the
situation as an ethical dilemma:
I have to assure, first of all that they comply with their legislation. Second, that
they act in a morally and ethically fair manner. Thirdly, that they appear to act
in a fair manner so that they cannot be accused of conflict of interest. … And
that is the type of situation that, particularly a lawyer who practises in the field
that I do finds that you have an ethical dilemma to resolve because you are al-
ways trying to be alive to possibilities of conflict of interests.
The lawyer resolved the conflict by recommending that the organization make all
relevant resources available to both individuals, make full disclosure to both parties,
and remove itself from any aspect of the investigation. Although Lawyer 152 did not
refer to the Handbook in relation to this specific problem, he was asked whether he
thought the code reflected the realities of practice. He stated:
Overall it does. The Rules of Professional Conduct are never irrelevant except
in the context that they are simply not applicable to the facts in the individual
case. … So they can be irrelevant in one sense but they are never irrelevant to
the general. The Code of Professional Conduct, in some cases I think, is inade-
quate but that is the function of not being able to provide in any code for all
situations which can arise in the course of human conduct. … And in fact I think
the Law Society itself has in a way inferred and agreed with the inadequacy of
the Code by having a Practice Advisory Committee and you can call up a prac-
71 See previous discussion in Part I, above.
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titioner and ask for advice or guidance in ethical dilemmas. Because, like I say,
there is an infinite variety of situations that present themselves to a practising
lawyer and you cannot have a comprehensive code to deal with all of them
Lawyer 152’s response illustrates that he was aware of the difficulty of balancing
hortatory and regulatory provisions in a code of conduct. His answer seems to suggest
that the Law Society has struck this balance as best as can be expected.
2. Lawyers Who Referred to the Handbook beyond the Context of
Their Own Problems, Which They Themselves Identified as Other
Than Ethical in Nature
Lawyer #132
The problem described by Lawyer 132 was that his client was charged with two
criminal offences. On the day of the trial, the Crown proposed that if his client
pleaded guilty to one of the charges, then the Crown would drop the other charge and
would agree that the client had already served sufficient time in custody. Lawyer 132
felt that if it went to trial, his client would probably be found not guilty of the charge.
However, if his client was found guilty he would have a “failing to comply with bail”
and/or a “escaping lawful custody” conviction, which would make it much harder for
his client to get bail in the future. He and his client decided that even though the
Crown’s offer would allow the client to walk out that day, they would go to trial. Inci-
dentally, Lawyer 132 indicated that he knew that his client was guilty of both of-
fences, but that the Crown would probably not be able to prove it.
Lawyer 132 seemed to view the situation as a strategy or risk-assessment prob-
lem. When asked about the factors involved in making his decision, he stated:
[Y]ou really have to weigh what you feel to be the strengths and weaknesses of
the client’s case, who the judge is, how good the Crown is, whether or not you
think the police officers who will be testifying will be good witnesses or bad
witnesses, how strong a case you think the Crown has. … the pros and cons of
pleading guilty or saying no and going to trial.
The lawyer was further questioned on whether there were any ethical factors involved,
and particularly whether the lawyer had any concerns about getting his client acquitted
on a charge that he knew his client had committed. With respect to the ethical consid-
erations, the lawyer responded, “The only part that ethics would come to play in it
would be that you wouldn’t want to persuade a client to plead guilty to something that
he or she wasn’t guilty of.” In terms of getting a guilty client acquitted, the lawyer stated
that he had no concerns whatsoever since “it is up to the State … to prove that anybody is
guilty” and that “you’re obliged, as a lawyer, if you know that your client can beat a
charge … to represent him or her and proceed to trial.” When asked what the source of
2000]
0M.A. WILKINSON ET AL. – CODES OF ETHics
675
this obligation was, the lawyer referred to the Handbook in these terms, “In the Law So-
ciety Act it says something about representing your client as best you can.'”
The words of Lawyer 132 do not suggest that he viewed this situation as an ethi-
cal problem or dilemma. Rather, he seems to view the situation as one where you bal-
ance the different factors involved to choose which course of action will likely be
most beneficial to the client.
Lawyer #133
Lawyer 133 worked for a company who owned certain business property. One of
the company’s tenants was trying to cease business operations when they had signed
on for a lease for a longer period of time. Lawyer 133 was faced with the issue of
whether to ask the court for a mandatory injunction that would prevent the tenant
from ceasing business operations but that had a very slim chance of succeeding, as
opposed to not doing anything and letting the tenant get away with breaching the
lease. In his words: “You’re damned if you do, damned if you don’t in a case like this
because if you don’t pursue it you send out a message that the landlord isn’t going to
pursue these sorts of things. You do sue and you run the risk of setting a very bad
precedent.” When asked whether there were any ethical considerations with respect to
this specific decision, the lawyer responded that there had been no ethics involved,
just pure risk assessment. Based on his assessment, Lawyer 133 decided to pursue the
mandatory injunction. He did not refer to the Handbook in relation to the specific
problem discussed. However, when asked about the types of strategies that he uses in
practice, he stated that he would “draw the line at doing anything unethical.” When
asked where his definition of “unethical” came from, he replied: “The Law Society’s
code of conduct is one, certainly and probably as good as any. I guess beyond that the
practice and understanding that is developing in the profession.:
Lawyer #138
Lawyer 138 was representing a defendant who had been charged with a crime.
His client had a valid legal defence, although if he were put on the stand, the jury
would probably react very negatively to his client. If he pleaded guilty, the term of in-
carceration would likely be ninety days intermittent or between six and eight months
reformatory time, with a recommendation for early temporary absence. If his client
was convicted at trial, thejail time would be between two and four years. Lawyer 138
stated he was faced with a dilemma:
My dilemma is that from a purely legal point of view, the case is possibly win-
nable. Not probably winnable but possibly winnable. And possibly winnable
from a criminal point of view is not a bad situation to be in. To recommend to
my client that we defend the case turns this into purely a lawyer’s case and if I
lose my client pays an undue penalty. The type of dilemma simply put is, do I
recommend to a client that has a defence, a defensible position that he enter a
The lawyer here is referring to Rule 10 of the Handbook, supra note 10 at 29, which requires a
lawyer to represent the client to the best of his or her ability.
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plea of guilty because of the high risk of outrageous results from an unsuccess-
ful defence?
In deciding whether to plead guilty or go to trial, the lawyer did not refer to the
Handbook but made his decision based on a cost-benefit analysis. The factors consid-
ered when making a recommendation to his client were: “The significant probability
of conviction, the significant probability of major interference with his life including
his career as a result of a conviction at the trial; and what can be done to minimize
those results and how far they can be minimized.” After a consideration of these fac-
tors and discussion with his client, it was decided that the client would plead guilty. In
Lawyer 138’s view, there were no ethical issues raised by this fact scenario. His
comment about the Handbook was that it defines the lawyer’s professional obligation
to represent his client’s best interests.’
Lawyer #142
Lawyer 142 was acting for both co-tenants where one co-tenant was mortgaging
his interest in the land. Although the firm got permission from the co-tenants to act for
both, there was an issue of whether a conflict had arisen which would require the firm
to withdraw from representing both clients. The lawyer found out that there was a
side-agreement in the loan document that would affect the interest of the co-tenant
who was not mortgaging his interest in the land. The issue to be decided was whether
this represented a sufficient conflict such that the firm would have to step down. The
conflict problem was resolved by discussing the issue with other partners in the firm.
The final decision was to disclose the side agreement to the co-tenant and leave it up to
him to make the decision. The co-tenant decided to continue to let the firm act for him.
When asked whether he had any general reflections on the whether the conflict
rules were either too strict or too lax, the lawyer replied:
No. I don’t think it can be any stricter and make it realistic because economi-
cally people have to have situations where a party acts for both sides, and that’s
to the client’s benefit. They surely can’t make them laxer because then there
would be no direction. It’s a difficult one …. but there’s nothing the Law Soci-
ety can do about that except maybe go through fact situations.
Lawyer 146
Lawyer 146’s firm had just won an action against the majority shareholders of a
corporation. The client died without having paid his legal fees. The opposition then
served notice that they would be appealing the decision (which meant that the judgment
would not be paid until the appeal was heard). The problem was that the firn’s client
had left his widow with nothing except for the money owing under the judgment. Law-
yer 146 had to decide whether to continue to represent the widow even though his firm
would not be able to get paid for three to four years. Although the lawyer did not spe-
cifically state what type of problem he viewed this as, it seemed to be somewhat of a
” As with Lawyer 137, Lawyer 138 seems to be referring to rule 10 of the Handbook, ibid. at 29.
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risk-assessment analysis in the sense that the firm had decided that it would continue to
represent the widow if it could set up a mortgage on the client’s estate property. The
Handbook was only mentioned in the sense that Lawyer 146 did not feel that the other
side had breached the rules, although he thought they might be coming close to doing so.
Lawyer #150
Lawyer 150 was faced with a decision about whether to settle a case or take the
matter to trial. Lawyer 150 viewed this as a risk-assessment problem such that it was
the lawyer’s job to weigh the various factors involved and then give advice to the cli-
ent about what the appropriate course of action would be. According to Lawyer 150,
the factors that should be examined are:
[Your probability of success at trial, how much better you might do there as
opposed to what the offer that’s been made to is. But even then another factor
of costs is involved. … In the legal profession, it’s always a matter of weighing
the costs of doing various things. So if you think you could, yes you could go
to trial and there’s a chance you might get another $5000, but it’s going to cost
you $5000 to go to trial in any event, [so] there isn’t a lot of point. So you look
at the client’s wishes, obviously, and the strengths and weaknesses of your
case, and the likelihood of success at trial, the costs that are going to be in-
volved, both financial and sort of, taxing on your client.
The issue had not been decided at the time of the interview. Lawyer 150 did not seem to
find the Handbook helpful because she was not sufficiently familiar with it. When asked
where the lawyer’s obligation to the client comes from, her response was: “There’s a
code of ethics for lawyers; I don’t know whether that’s specifically printed in there or
not. … I don’t know if it’s written down anywhere, I’m sure it’s somewhere:’
Lawyer #153
Lawyer 153 was faced with the issue of deciding what strategy to employ with re-
spect to a motion. Specifically, he had to decide whether to convert the motion to a
summary-judgment motion which has a different test for the admissibility of evi-
dence, or to stick with the original motion (which was a motion for a determination of
law). The lawyer discussed the issue with some colleagues, did some research, re-
viewed the evidence and decided to continue with the original motion but to be pre-
pared with additional evidence. The Handbook was not mentioned in relation to this
specific problem but the lawyer did say that when he is faced with a potentially un-
ethical situation he refers to the rules.
678
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Conclusion
The results of this article indicate the following:
1. The majority of participants in this study did not use the Handbook as a means
of solving problems.7′ Moreover, the data indicate that even among those who men-
tioned the Handbook during their interview, not all lawyers who classified their situa-
tion as an ethical problem or. dilemma consulted the Handbook
2. For those lawyers who did refer to the Handbook, the majority found it to be
useful in one of two ways. Either the Handbook was seen as a useful tool for resolv-
ing the specific issue before the lawyer, or it was seen as useful in the sense that it de-
fined in a general way the lawyer’s obligation to his or her client.
3. Finally, a number of the lawyers who referred to the code in relation to a spe-
cific problem actually viewed the Handbook as resolving the issue before them. These
lawyers showed no evidence of engaging in any ethical decision-making.
These findings are important for several reasons. First, they indicate that the
Handbook is not seen as a useful tool to the majority of practising lawyers. The fact
that only 16% of lawyers in the study referred to the Handbook during their inter-
views clearly indicates that most lawyers are solving their problems through other
means (when only the lawyers who referred to the code in relation to the particular is-
sue are included, this percentage drops to 7%).7′ On its own, this finding may simply
suggest that most lawyers do not encounter ethical problems in practice and therefore
find it unnecessary to refer to the Handbook. However, this article has clearly demon-
strated that this is not the case. Almost half of the lawyers discussed above classified
their situation as an ethical problem or dilemma.
These conclusions go towards answering the final research question of this arti-
cle-would revision or amendments to the Handbook have any effect on the behav-
iour of lawyers? If lawyers are solving their problems, ethical or otherwise, in the
same sort of way that they were before the Handbook came into existence, then the
usefulness of the code to the entire profession is called into question. How can the
code, or any proposed revisions or amendments to it, possibly affect the behaviour of
lawyers when most lawyers do not even refer to it?
” In “Legal Ethics: Why Aristotle Might be Helpful” J. Soc. Philo. [forthcoming in 2001], author
Michael Milde (who worked with these researchers) suggests that the reason more lawyers do not
consult the Handbook is that in resolving ethical issues, lawyers adopt the Aristotelian model of “vir-
tue ethics” or the “good man”.
‘” See ‘Information-Seeking”, supra note 8. In this paper, Wilkinson uses the transcripts from this
project to draw some conclusions about what information sources lawyers are using to facilitate their
decision making process. Her findings may suggest that the conduct and opinion of colleagues exert a
greater influence on a lawyer’s professional behaviour than does the existence of formal information
sources like codes.
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M.A. WILKINSON ET AL. – CODES OF ETHICS
679
Secondly, the findings of this study are important in that they support the conten-
tion that the Handbook is useful to the majority of lawyers who refer to it. However,
whether this is a desirable result is questionable. Of the eleven lawyers who referred
to the Handbook in relation to a specific problem, six of the lawyers actually viewed
the Handbook as providing a solution to the problem’ Through an examination of the
specific wording used by these lawyers, it was clear that the code had the effect of
eliminating the necessity for ethical deliberation, and in some cases also insulated
these lawyers from taking personal responsibility for their actions. For each lawyer,
the issue of what to do was decided by the Handbook. As Lawyer 154 stated, “that
was the end of the dilemma … I think the rules of professional responsibility fit the
situation perfectly.’ The lawyers did not seem to consider the consequences of their
actions on the parties involved or engage in any independent thought. The Handbook
dictated what was to be done, therefore no further steps needed to be taken.’
On the other hand, several lawyers demonstrated that they were capable of en-
gaging in ethical deliberation irrespective of the existence of the code.7 These lawyers
made their decisions not by consulting external rules, but by looking within them-
selves to determine the appropriate course of action. The results of the two different
approaches are summarized in the following table.
Thble #4: The Use Made of the Handbook by Those in the Study Who Referred to It
Ethical Deibberation
No Ethical Deliberation
Referred to Handbook in
Relation to a Specific
Problem
136, 139, 140
(3)
Did Not refer to Hand-
book in Relation to a
Specific Problem
115,137,145, 148, 149,
151
(6)
Did Not refer to the
Handbook at All
134,135,141,143, 144,
147,154
(8)
132,133,138,142,146
150, 152, 153
(8)
121
76These lawyers are Lawyers 134, 135, 141, 144, 147, and 154.
7’The fact that a majority of the lawyers who referred to the code simply followed the rules set out
therein may be an indication that the Handbook has not struck an appropriate balance between horta-
tory and regulatory provisions (see Ladd, supra note 11 at 22 and accompanying text). Perhaps by
adding provisions more inspirational in nature, the lawyers would be more likely to engage in inde-
pendent thought before simply applying the appropriate rule.
7′ These are Lawyers 136, 137, 139, 140, 145, 148, 149 and 151.
79 The research team also analyzed all the transcripts in which the lawyers did not refer to the
Handbook. The results of this analysis revealed evidence of ethical deliberation in only 8 of these 129
transcripts. A discussion of these transcripts has been omitted herein because these transcripts were
not the focus of this paper.
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The net effect of these results is that the lawyers who did not consult the Handbook
arguably behaved more ethically more often than those who did refer to the Hand-
book’ Whether or not this is a desirable result depends on whether the profession in-
tends the code to assist lawyers in ethical decision-making, or whether the code is in-
tended to obviate the necessity of ethical deliberation.
To conclude, the results of this study indicate that the legal profession has some
important issues to address. It must be decided whether it is worthwhile to keep a
code which so few lawyers use. If this question is answered in the affirmative, then it
must be decided what role the Handbook is to play. Is it to operate so that it assists
lawyers in the ethical decision-making process, or is it to operate so that it makes it
unnecessary for lawyers to engage in ethical deliberation? Is it desirable for a profes-
sion that is supposed to protect the public to be relieved of the necessity of ethical de-
liberation? While these issues are beyond the scope of this paper, the results of this
paper may prove helpful in their consideration.
‘0 Unfortunately, the cell sizes in the table are too small to allow for generalization through the use
of chi-square analysis. However, recently the research team compared the problems identified by
these lawyers with the categories of problems with which the Law Society deals on an ongoing basis.
The range of problems raised by the lawyers is not in any way atypical and, indeed, reflects fairly
closely the breakdown of problem areas raised by lawyers in calls to the Law Society’s Advisory
Service in the same time period. Practice administration was involved in 68% of all calls to the Law
Society and in 60% of all cases in this study. Substantive questions of law were involved in the re-
maining 32% of calls to the advisory service and in 40% of our transcripts. The research team is in-
debted to then law student Paul Holmes for the comparative analysis of the Law Society data. As
well, see the previous discussion regarding generalizability of the results of this research in Part IR,
above. Generalizing these findings from our study to the general population of lawyers is thus not in-
appropriate.
