Case Comment Volume 35:2

Professional Structures and Professional Ethics

Table of Contents

NOTES

Professional Structures and Professional Ethics

H. Patrick Glenn*

The author argues that much of the current
debate concerning legal ethics is miscon-
ceived, since it takes little account of the
importance of professional structures. For eth-
ical standards to exist which may be desig-
nated as professional, there must be structures
which remove the ethical from the domain of
purely individual choice. Current develop-
ments in the legal professions in Europe, the
U.S.A., and Canada are examined to ascertain
in what measure they are compatible with this
fundamental requirement.

L’auteur soutient que le d6bat actuel en
matire de d~ontologie juridique est, dans une
grande mesure, mal conqu, car il ne tient pas
compte de l’importance des structures profes-
sionnelles. Afin d’avoir des standards qui
puissent etre d6sign6s comme professionnels,
il doit y avoir des structures qui empechent
que ]a d~ontologie soit entirement une ques-
tion de choix personnel. Les d6veloppements
rcents en matire des professions juridiques
en Europe, aux ttats-Unis, et au Canada sont
examin6s pour voir s’ils sont compatibles avec
cette exigence fondamentale.

*Peter M. Laing Professor of Law, McGill University. This is a revised version of an inaugural
lecture given May 17, 1989, at the Faculty of Law, McGill University on the occasion of the estab-
lishment of the Peter M. Laing Chair.
McGill Law Journal 1990
Revue de droit de McGill

19901

NOTES

Synopsis

Introduction
Europe
I.
II. United States of America
III. Canada
Conclusion

Introduction

exhibiting a remarkable analytical talent –

Peter Laing led a distinguished professional life. He was one of Montreal’s
leading counsel; he played an important role within his profession and his fin
and he was a devoted servant of

McGill University for many years, both as a Governor and as legal counsel. It
is not an easy thing to achieve distinction in such a manner in the practice of
a profession. Qualities must be exercised, in the daily tumult and over an
extended time, which both meet external need and withstand the critical
appraisal of one’s peers. Distinction flowsfrom these qualities, as they are exer-
cised in a lifetime. There is thus a qualitative and a temporal measure of pro-
fessional distinction. It is a lifetime which is judged, and according to rigorous,
though often unexpressed, standards. Leaders of the Bar are individuals who
have met these standards over time, and their professional lives are necessarily
informed by a professional ethic. What, however, is the nature of this ethic, and
what are its most significant elements ?

My argument is a very simple one, but it is today far from obvious. The
argument is that professional structures are of profound ethical significance;
they have a hidden dimension which deserves discovery, or perhaps rediscovery.
No concept of professional ethics should therefore be isolated from the structure
of the profession. If this argument is correct, two preliminary conclusions
should follow. The first is that much of the current and vigorous debate concern-
ing legal ethics is misconceived; it assumes a discrete field of legal ethics, even
taught as an academic specialty, in which solutions are sought for specific prob-
lems free of considerations of structure. The second conclusion is related to the

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first. It is that much of the debate over reform and change of the profession is
equally misconceived, since ethical impact of structural reform on the individ-
ual practitioner is infrequently the object of discussion. In the result, the struc-
tures of the profession should bear much of its ethical load, and reform of struc-
tures should be in function of ethical considerations, amongst other things.
Ethical impact statements are required. However, since today this argument is
not obvious, and since it challenges some major directions of North American
legal practice, it requires more than simple affirmation.

I. Europe

What is meant, first of all, by professional structures? Four characteristics
emerge very clearly from the European professional tradition, though today the
debate in Europe is perhaps more intense than in North America.’ First,
European practice is divided amongst several professions; second, the bounda-
ries of professional practice are fixed by defined incompatibilities, known as
such, which prevent members of a profession from undertaking specific activ-
ities; third, the professions exercise a strong corporate control over their mem-
bership; and fourth, they do so through enforcement of ethical standards the
explication of which is one of the ongoing functions of the professional body
itself. Even enumerated in summary fashion these structures do not appear
entirely irrelevant to ethical considerations; examining them individually should
reinforce this conclusion.

The European professions appear to have existed separately from the initial
emergence of formal legal tasks. There are jurists, procurators, advocati, and
notarii,2 and law appears professionally not as a broad field in which one roams
to one’s advantage, but as a series of discrete functions, each with its defined
objectives. This has important ethical implications. First, in the measure that the
functions are mutually exclusive –
one cannot be both procurator and a advo-
catus –
the notion of professional incompatibilities is part of the structure of
the profession itself. As an advocatus, there are legal tasks one cannot accom-
plish. Second, the existence of distinct categories of legal practitioners permits
precise identification of the goal, or in Aristotelian ethical language the telos,
of each of them. The most brilliant example of the incorporation of ethical
objectives into the simple process of designation is in the word advocate, from
the Latin advocare, to call to aid, yielding the advocatus as a person who by def-
inition is one who responds to calls for help. It is no accident that the French

‘Fusion of barristers and solicitors is now being debated in the United Kingdom, and fusion of
avocats and conseils juridiques is now underway in France. The structure of all European legal
professions may be profoundly affected by common market measures due for implementation in
1992.

2M. Kaser, Rfmisches Rechtsgeschichte, 2d ed. (Gttingen: Vandenhoeck & Ruprecht, 1967) at

168, 180, 210.

1990]

NOTES

avocat until the mid-twentieth century was unable in law to recover honoraria.

What thus occurred in Greece and Rome is of enormous interest, though
we may never be able to explain entirely how it came about. On the one hand
Greek thought gave us the concept of specialized human knowledge –
the
sophists were the first to write treatises on technology –
as a means of uncon-
trolled and uncontrollable domination of the world. On the other hand notions
of creativity and domination were largely suppressed in the articulation of legal
tasks, as the legal professions were defined in terms of their function of service,
not in terms of specialized knowledge as a means of mastery, and functions of
service were divided to permit clearer articulation of the goals of service. Ethics
was structure, and the continuing division of the professions in Europe is the
legacy of this idea.

The incompatibility between the legal professions draws attention to other
activities which may be incompatible with the exercise of each of them. The
second major characteristic of the European legal professions, of both civil and
common law traditions, is the existence of clearly established incompatibilities.
Known as such, they prohibit, for example, the English barrister from engaging
in commercial activities, the French avocat from accepting salaried employ-
ment, and the German Rechtsanwalt from being employed as a university pro-
fessor. The admixture of structure and ethic is perhaps most clearly evident in
Germany, where the romanists played a decisive role in the dismantling of feu-
dal structures. Here the rationalization of law resulted in great emphasis being
placed on professional role, to the point of counsel becoming obligatory in nor-
mal litigation. It is thus here in Germany in the sixteenth century that we find
the origins of the maxim “Only a fool acts as his own counsel.”3 Lawyers now
begin to earn good livings, and this includes the law professors. In the
University of Leipzig in the 1500s the ordinarius for Roman law receives three
hundred gulden annually, compared to only two hundred for the humanist and
the mathematicus, but the university attaches the proviso that the romanist must
“stay in place at the university and not move about to carry on his practical busi-
ness.” The reaction against Roman law and Roman lawyers is widespread, and
Martin Luther, in his general attack on the law, charges that “the real reason
why you people study law and become jurists is money. You want to be rich.”4
However, the legal professions remain, and remain distinct, and today in
Germany one does not speak of legal ethics or deontology but of Standesrecht,
the law defining one’s place (where one stands) or role, since it is one’s role
which defines the standards of conduct one must meet. The concept of role is

3G. Strauss, Lav, Resistance and the State [:] The Opposition to Roman Law in Reformation

Germany (Princeton: Princeton University Press, 1986) at 93.

‘Strauss, supra, note 3 at 183. For Luther’s antipathy to the law see M. Villey, Laformation de

la pensge juridique moderne (Paris: Les Editions Montchrestien, 1975) at 297, 302.

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thus both positive, in articulating function, and negative, in excluding antithet-
ical functions through defined incompatibilities.

Structures of ethical content may however be challenged, ignored, or sim-
ply suffer from cultural entropy. The structures of European legal professions do
change over time, perhaps the most notable example being the virtual elimina-
tion of the English notary in the sixteenth century. In ethical terms, however,
there is a constancy of structure, which is their third major characteristic, since
the professions are established in such a way that their internal ethic is meant
to be self-enforcing, i.e., in a manner internal to each profession itself. The pro-
fessions are strong corporate bodies; membership in them is essential to prac-
tice; and they are doted with the means to exercise control over their members.
This control is not always exercised, and there are constant complaints that it
is overly protective of privilege, but it exists, whether in regional French Bar
associations, the English Inns of Court, or the Anwaltskammern. These are not
notably democratic institutions, and discipline is exercised by virtue of seniority
or by those sufficiently distinguished to hold office for necessarily limited and
brief periods of time, not subject to the constraints of re-election. The standards
of the profession itself may thus be enforced, by those familiar with them as a
result of long practice, and these standards are in no way limited to those
edicted by rules of law for the general population. Hence the professional ethic
is conceived as being voluntarily assumed and more onerous in character than
any standard which could be imposed by external means. Such standards must
be learned, since they are not expected of the general population, and the author-
ities of each profession play a continuing and diversified role of both education
and, where necessary, punishment, in deciding disciplinary cases.

Of these two roles it is probably the educative which is the more important,
since the remaining and fourth characteristic of the European legal ethic is that
it is largely unarticulated. It does not consist of rules, but rather of standards,
and even the standards may not be formally expressed. The process of explica-
tion of the standards is thus an essential one, but the explications never replace
the standards themselves. Rules are for others, who may reasonably be expected
to ask precisely what they should do. Rules are not, however, except as a min-
imal requirement, for those who administer the rules, and who must necessarily
act beyond the rules as justification for their role in administration of the rules.
The notion of a code of professional ethics is thus a very recent one and some
legal professions, such as the English bar, have traditionally seen no need for
their creation. Where they do exist, they may consist of little more than maxims
and are thus only statements of standards which defy exhaustive delineation.
The European professional tradition in law, consisting of these four char-
acteristics –
separate professions, defined by incompatibilities, strongly gov-
erned, and adhering to general standards –
is thus a unified one, since it is com-
mon to the civil and common laws and constant through the development of

1990]

NOTES

them. Traditions are never received elsewhere, however, in the form in which
they have been developed. The legal profession in North America is therefore
not identical to that which has existed in Europe, and the differences extend
beyond the national differences which exist within the European tradition. Is
there however a North American legal profession which teaches different les-
sons in terms of ethical responsibility? To what extent are our four European
professional characteristics replicated in the New World?

II. United States of America

The legal profession in the United States of America is a unified profession
and has never exhibited the diversity of the European tradition. The most com-
mon explanation for the unified profession in the U.S. is that of the reality of
frontier life, which was unable to sustain the luxury of divisions of labour in
intellectual pursuits. This is perhaps the best explanation. It is closely related to
what may have been a desire not to limit the efficient practice of law in a new
world by importing restrictions of the old. For whatever reasons the concept of
a unified profession spread rapidly over much of North America, and has
become, with the accompanying authorization of partnership agreements (pro-
hibited for the English barrister), the principal support for the extraordinary
growth of law firms in the United States. Given all of law to practice, moreover,
and the resulting need to associate, U.S. professionals quickly moved beyond
the individualized forms of practice current in Europe. As in the sixteenth and
seventeenth centuries in Europe, the initial growth and prosperity of the profes-
sion coincided with a rationalization of law itself. The growth in size of U.S.
firms took place initially from 1870 to 1930,’ and during this period U.S. law
underwent formalization, while its teaching entered a scientific era, with the
development of the case method of instruction. Since that time there has been
no significant change in the structure of the U.S. profession (admission of cor-
porate forms of organization having preserved many forms of partnership struc-
ture) but there have been changes in the scale and the manner of individual and
partnership practice. In the last two decades the largest of U.S. firms has grown
from over 100 to over 1000 members, and within the unified profession defacto
specialization has developed, in terms of areas of specialized knowledge of law
as opposed to traditional legal functions. As a delivery mechanism for the pro-
vision of highly specialized intellectual services, in large quantity and if neces-
sary in highly compressed periods of time, the legal partnership becomes sub-
ject to a heavy burden of internal and inflexible costs, which in turn generate
new forms of practice and methods of work. The most historically interesting
of these is the concept of billable time, a subject on which much remains to be
said. It provides a quantifiable indicia of assistance provided, which is however
both independent of results produced and largely within the control of members

5A. Freeman, “A Critical Legal Look at Corporate Practice” (1987) 37 J. Legal Ed. 315 at 317.

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of the firm themselves. This is not the place to detail the present workings of
the large U.S. firms, but a number of aspects of the large firm, in the context
of the unified profession, are relevant to the question of professional ethics. Let
us look briefly at these, before moving on to the remaining three characteristics
of the European profession.

First, the agglomeration of lawyers within a single structure has meant that
many of them work not in direct relation with a client to whom assistance is pro-
vided, but in an internal hierarchy which functions in some measure according
to internal criteria of productivity. “Shop norms” have emerged, in the language
of Professor Hazard,6 which means there has been necessary displacement, in
some measure at least, of the traditional objects of the lawyer-client relation: the
need of the client and the compensation in reasonable measure of the individual
lawyer for service provided. The nature of the shop norms will vary according
to the distribution system of individual firms for revenue generated beyond the
compensation provided to the lawyer or lawyers actually rendering the services,
but in all cases the lawyer concerned is required to respond to structural prior-
ities which are distinct from the interests of the client. The brutally financial
nature of the calculation is evident in the notion now current in the U.S. of firm
leverage, expressed in associate-to-partner ratios, which are the object of precise
calculations. The rapid increase in firm size in the U.S. in the last decade has
been accompanied by a marked increase in use of associate legal talent, as a
means of levering partner revenue and meeting overall partnership costs.’

Second, the sociological studies now attracted to the practice of large U.S.
firms indicate that the firms themselves, given the specialized services they pro-
vide, become heavily dependent on the interests of particular clients. In Chicago
lawyers in general spend about a third of their time, and corporate lawyers about
half their time, on the client for whom they work the most.8 The result is a
highly differentiated bar, one which is fragmented through the impact of client
interests upon it.9 It has been said that this “strong coincidence in attitudes
among counsel and clients” diminishes “counsel’s capacity for unbiased norma-
tive decisions”,” and that client control of professional organization will result
in the profession lacking “the power to draw the boundaries that separate
lawyers’ work from that of other occupations … to set standards of professional

6G. Hazard, ed., Ethics in the Practice of Law (New Haven: Yale University Press, 1976) at xv.
7 The last decade of rapid firm expansion has been accompanied amongst the large U.S. firms
by a growth in the average associate-to-partner ratio by a third, from 1.25-1 to 1.68-1. In New York
the average ratio is 2.56-1. “Leverage Data is Inconclusive” The [New York] National Law Journal
(26 December 1988) S-15.

8D.L. Rhode, “Ethical Perspectives on Legal Practice” (1985) 37 Stan. L. Rev. 589 at 627.
9J.P. Heinz & E.O. Laumann, “The Legal Profession: Client Interests, Professional Roles and

Social Hierarchies” (1978) 76 Mich. L. Rev. 1111 at 1112.

IRhode, supra, note 8 at 629.

1990]

NOTES

conduct, and thus to control the course of the profession.””

Third, the process of specialization itself is said to impact on the ethical
perspective of the individual lawyer. Why this is so depends on the nature of
judgment exercised in the lawyering process, which properly extends beyond
technical proficiency. Total immersion in law precludes awareness of why it
exists as law, and of the necessary ethical restraints in its practice. This is par-
ticularly the case when practice is at the level of an associate firm member. In
U.S. practice the levels of specialization are increasingly said to be “emotion-
“means by which lawyers become professionally and ethi-
ally destructive,’
cally isolated from ordinary life,”‘ 3 and as precluding, in the language of the
senior counsel to Coudert Brothers in Washington, “a decent way of life.”‘1 4 Yet
the attractions of the specialist’s legal world remain such that this is where much
of the best talent resides.

Fourth, the dimensions of the large firms are such, when combined with the
flow of lawyers amongst them, that what are known in North America as con-
flicts of interest become increasingly frequent. The dispute between two long-
standing clients poses excruciatingly difficult questions for the large firm; the
transfer of lawyers from firm to firm during protracted litigation creates similar
difficulties. The large firm in the unified profession thus inevitably creates eth-
ical difficulties of this kind, and means of solution must be sought elsewhere.”
The second major characteristic of the European professional tradition is
the existence of fixed rules of incompatibility which preclude the individual
lawyer from entering into relations or transactions inconsistent with his or her
professional role. A divided profession means there are incompatibilities
between the professions: one cannot be both advocate and notary, barrister and
solicitor. Yet, the European incompatibilities extend well beyond the definition
of the professions to exclude, for example, a barrister from entering into com-
mercial activities in collaboration with a client. In the United States, no incom-
patibilities exist to separate one legal profession from another and this appears
to have precluded the development of any other form of incompatibility. If one
is free to practice all law, one is free to do it in conjunction with other activities

“Heinz & Laumann, supra, note 9 at 1142.
‘2Freeman, supra, note 5 at 320.
13N.L. Firak, “‘Ethical Fictions as Ethical Foundations’: Justifying Professional Ethics” (1986)

24 Osgoode Hall L.J. 35 at 61.

14L. Greenhouse, “Linowitz’s Call for Lawyers to Be People Again” The New York Times (22

April 1988) B-5.

‘5 1t is also clear from the U.S. experience that the structural rules which do remain part of U.S.
practice are of ethical importance. These include the unlimited liability of the lawyer practicing in
corporate form, the limits on extraterritorial operation of corporate practices, the prohibition of
capital external to firm members in firm financing, and the prohibiton of multi-disciplinary firms.
None of these structural rules are of assistance, however, in resolution of the problems created by
the large firm practice.

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(including participation in leveraged buyouts), subject only to such ethical
restrictions which may exist and be enforceable.

Enforcement of ethical obligations in the United States is severely ham-
pered, however, by the voluntary character of many state bar associations, and
by the renunciation of disciplinary functions, in favour of the courts, by many
others. As we have seen, the differentiation of state bars in function of client
interests may play a role in this process. The structure of the profession is thus
too haphazard to allow disciplinary and ethical surveillance, and the courts are
an ineffective substitute. The disciplinary proceedings which occur annually in
the United States number only in the hundreds in a profession now exceeding
700,000 members. Strong professional government, the third of the European
characteristics, is thus conspicuously lacking. This is the context in which one
must understand press releases such as the following, which appeared in the
December 26, 1988 edition of the National Law Journal:

Los Angeles – More than three years after his release from state prison, the
California Supreme Court has ordered La Jolla sole practitioner Stephen T. Lee
disbarred, finding that the solicitation of a hit man to kill a government witness
constitutes moral turpitude.
The U.S. profession thus appears significantly different from the European
in terms of the unity of the profession, the absence of professional incompati-
bilities, and the weakness of professional surveillance and control. I will return
to the fourth characteristic, that of ethical standards. We already know, however,
that the individual U.S. lawyer stands before a wider world, free of any gener-
alized limits on behaviour, and largely free of any effective means of control or
surveillance. In contemporary language, the shift is from macroethics to microe-
thics, and while theoreticians of applied ethics regard macroethics as providing
“a necessary framework of the microethical”,”6 it is clear that in the U.S. pro-
fession the structure of macroethics is largely, though not entirely, absent. There
is of course an older language to describe the phenomenon, since what has been
largely removed is the definition of telos or role, and the means of education in
this telos. It is true that the concept of role continues to play a large part in con-
temporary U.S. ethical discussion, but the shift is from a telos or role which
gives meaning to one’s life as an individual, the fulfillment of which is one’s
purpose in life, to a role in a sociological sense, in which the self is reduced to
a set of demarcated societal functions, devoid of ethical content. One’s role is
simply to deal with the situations as they arise, using the appropriate legal dis-
course and whatever “role model” appears appropriate in terms of efficiency of
execution. The ethic of the professional life is here replaced by the ethics of the
situation –

quandary ethics in the language of their critics.

16A. Edel, “Ethical Theory and Moral Practice: On the Terms of their Relation” in J.P. Demarco
& R.M. Fox, eds, New Directions in Ethics (New York: Routledge and Kegan Paul, 1986) 317 at
323.

1990]

NOTES

What has been the effect of this shift in ethical technique on the actual level
of ethical practice in the U.S.? 7 Perhaps most revealing is the nature of legal
ethical debate in the U.S., where a number of features of the debate are of inter-
est. First is the dominance of the idea of conflict of interest in defining appro-
priate and inappropriate lawyerly conduct. I am unaware of the origins of the
idea of a conflict of interest, but its origins do not lie in the history of the
European profession, since the idea is there largely unknown. A conflict of
interest appears initially to be ethically banal. People’s interests are seen today
as constantly in conflict and what can be said to be wrong with that? 8 Its use
in legal ethics therefore implies the superposition of a further ethical criterion,
or the conflict of interest will go largely unsanctioned unless actual harm is
caused. This is what Francis Bacon contended after accepting gifts from liti-
gants before him, in stating that there was no wrong since he had not been influ-
enced in exercising his judgment. There have been recent Canadian political
examples. In the measure that conflicts of interest go unsanctioned absent actual
harm, a purported ethical standard is reduced to something very close to the
general rules of civil liability. Use of the concept of conflict of interest, when
combined with the absence of disciplinary authorities, may have this ultimate
effect.

Another feature of U.S. legal ethical debate has been the call for develop-
ment of “non-professional advocacy.”‘ 9 Non-professional advocacy is said to be
necessary because the use made of the professional role in the adversarial proc-
ess (and we are here speaking of role in the sociological sense) is said to author-
ize a standard of behaviour which is less than that required of the ordinary cit-
izen. Thus all conduct is perceived to be tolerated by the adversarial system so
long as it advances interests defined by the client. To remedy this abusive atti-
tude and to eliminate vicious professional conduct it becomes necessary to
resort to a public standard of the good, and no deviation can be allowed for the
lawyer purporting simply to do his job. In these circumstances, professor Fried’s
defence of the concept of the lawyer as friend, entitled as friend to act aggres-
sively within the law against adversaries,” is seen as a defence of an unsatisfac-
tory status quo, in which the lawyer’s role is no longer that of ethical agent, but

17For a recent discussion of ethical malpractice in the U.S., from the perspective of a justice of
the 2d U.S. Circuit Court of Appeals, see RJ. Miner, “Lawyers Owe One Another” The [New
York] National Law Journal (19 December 1988) 13.

IsPerhaps a great deal, given that concepts of interest and conflict are not ethically neutral. In
contemporary public morality, however, it is usually seen as a simple fact that the interests of per-
son A are in conflict with those of person B. Neither A nor B is the object of blame.

19See, for example, W.H. Simon, “The Ideology of Advocacy: Procedural Justice and
Professional Ethics” [1978] Wis. L. Rev. 29; and “Ethical Discretion in Lawyering” (1988) 101
Harv. L. Rev. 1083.

20C. Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation”

(1976) 85 Yale L.J. 1060.

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of a kind of client-controlled judicial Rambo. This attitude is itself instructive.
Elsewhere in the world a call for non-professional ethics would not be seen as
a call for a higher standard of conduct.

Finally, there appears as a result of all of this to be a shift occurring within
the U.S. profession from the idea of broad standards of conduct to precise rules
of professional conduct. This brings us to the fourth characteristic of the
European tradition. In 1983 the American Bar Association converted its Model
Code of Professional Responsibility into a detailed set, in black-letter form, of
Model Rules of Professional Conduct. The U.S. academic community appears
in some measure to welcome the appearance of a new academic specialty of the
law of professional ethics.2 This shift is closely related to the other character-
istics of the U.S. profession which we have seen, which have the effect of col-
lapsing structure or role in favour of largely uncontrolled individual choice.
Standards address the question of how one acts and assume the existence of an
articulated role the standard is meant to implement. In contrast, rules tell one
what to do, in a particular case, and their implementation appears to require no
concept of professional role or professional standards. To the extent that a pro-
fession seeks rules in order to know what to do, it is clear that it lacks a clear
sense of role informing it as to how it should act.’ It remains to be seen, in the
unique U.S. context, to what extent rules, and rules alone, may provide a foun-
dation for ethical conduct on the part of lawyers who work, on a daily basis,
with rules.

Is the experience of the United States consistent with the teachings of the
European professional tradition? I believe it is, since it illustrates the difficulties
in sustaining the concept of a professional ethic in the absence of appropriate
professional structures. This is not to say that legal practice in the United States
has become unethical, since much legal practice is conducted by individual law-
yers in a manner which does not create ethical difficulties. The enormous debate
over legal ethics in the United States, however, is indicative of problems and the
problems are structural. This conclusion emerges from the U.S. debate itself,
which has in the last two decades turned not only to the concept of rules as a
corrective for perceived ethical problems, but also to the concept of professional
role or telos. This revival of interest in what is designated as “character ethics”

21Professor Patterson states in the preface to his large volume:”‘This book is born of a conviction
that too often the teaching of courses in legal ethics, or professional responsibility, is based upon
the premise that the subject is one of ethics rather than law. That premise has been rejected in the
preparation of these materials. A course in legal ethics is, and should be, a law course involving
rules of law and legal problems.” L.R. Patterson, Legal Ethics[:]The Law of Professional
Responsibility (New York: Matthew Bender, 1982) at v. For the development of the academic treat-
ment of the subject in the U.S. see A. Esau, “Teaching Professional Responsibility in Law School”
(1988) 11 Dal. L. 403 at 437.
22For such a request for specific guidance see R. Kasanoff, Book Review of Ethics in the

Practice of Law, ed. by G. Hazard (1980) 89 Yale L.J. 1438.

1990]

NOTES

is seen as significant in all fields of applied ethics,’ and the writing of Professor
MacIntyre constitutes its recent extension into the field of public morality.24 In
law Professor Kronman has argued for the continuing vitality in the U.S. pro-
fession of the quality of “practical wisdom”, representative of something other
than the single-minded pursuit of client instruction.2 Members of the judiciary
have been still more explicit in linking ethical problems to those of structure,
and a recent judicial declaration states explicitly that “…even the best-
intentioned lawyers can be overwhelmed by a flawed system.” ’26 U.S. experi-
ence thus not only illustrates the ethical problems created by destructuring, it
also illustrates the continuing relevance of role and structure as means of reso-
lution of those problems. Will new standards emerge from the rules?

H. Canada

The European professional tradition is common to the civil and common
laws in regard to its principal characteristics of separate professions, reinforced
by explicit incompatibilities, controlled by strong professional organization and
using general standards of professional conduct. The U.S. legal profession
departs from these characteristics in significant measure though, I have argued,
the lesson to be drawn from the U.S. experience is in no way incompatible with
their raison d’6tre. Is the Canadian profession, or professions, one which con-
tributes to a North American professional model, distinct from the European, or
are we a simple extension of the European tradition? The answer is not a simple
one.

Conditions in New France were certainly as rigorous as those prevailing
elsewhere on the Continent, but the continuing authority of the French Crown
meant that it was unlikely that entire fields of professional practice would open
up, free of the traditional limits of metropolitan practice. Indeed, the practice of
advocacy was largely closed down, being in royal disfavour as a disruptive
influence. This left the notaire as the exclusive, though limited, representative
of the French legal professions. The arrival of the English meant the arrival of
the Bar, with the result that the profession of Lower Canada followed an English
bi-partite division (avoiding the multiplicity characteristic of France), but with
the senior profession a direct descendant from the French tradition. This limited
division remains characteristic of the Quebec profession today and, in spite of
occasional calls for it on behalf of distinguished members of the Bench and Bar
as recently as last autumn, fusion appears highly unlikely in the future. In 1988,

23M.G. Singer, “Ethics, Science and Moral Philosophy” in DeMarco & Fox, supra, note 16 at

24A. Maclntyre, After Virtue, 2d ed. (Notre Dame: Notre Dame University Press, 1984).
25A.T. Kronman, “Living in the Law” (1987) 54 U. Chi. L. Rev. 835.
26H.T. Edwards, “The Role of Legal Education in Shaping the Profession” (1988) 38 J. Legal

286, 297.

Ed. 285 at 290.

McGILL LAW JOURNAL

[Vol. 35

the Quebec Superior Court rejected any compatibility between the two profes-
sions under existing legislation,27 and we have even added to the division in a
small measure in providing for the profession of “conseiller en loi”, unique in
Canada, a direct descendant of the purely advisory Roman jurist.28

It is commonly said that there exists a unified profession in the common
law provinces, and it is true that in each case a single governing body exists.
However, the Canadian unified profession is not that of the U.S.: there is no sin-
gle profession of, for example, attorney, but rather the junction of the distinct
professions of barrister and solicitor and the removal of formal incompatibility
between them. At the same time one is a member of two professions with sep-
arate roles and recognizably distinct functions. The concept of junction is dis-
tinct from that of fusion. For instance, in Ontario, the recent programme of spe-
cialization has not been based on scientific models organized around specific
subject matter (fields of domination in which professional functions are unre-
stricted), but has reverted to the traditional legal function of oral pleading, the
role or telos of the barrister.29

While the concept of incompatibility is less evident in the Canadian pro-
fessions than in Europe, in principle the Canadian professional is not free to
engage in any outside activity, as is the case in the United States. In this regard,
the Quebec notarial profession is the most explicit and rigorous in setting out
a list of specific incompatibilities including the exercise of another principal
occupation in commerce or industry.” The incompatibilities of the Quebec Bar
Act are shorter in number, but the Quebec batonnier has issued formal warnings
against members of the Bar engaging in commercial activities, 3 and inattention
to client files because of external commercial activities is susceptible to review
in Quebec through proceedings of professional inspection which may them-
selves lead to disciplinary proceedings.

In the common law provinces the most striking provision in this regard is
chapter VII of the Canadian Bar Association Code of Ethics, which has no
counterpart in the United States, and which provides that the lawyer engaged in
“another profession, business or occupation concurrently with the practice of
law must not allow such outside interest to jeopardize the lawyer’s professional
integrity, independence or competence.” This is, I believe, an incompatibility.

27Fr~chette c. Chambre des notaires diu Qudbec, [1988] RJ.Q. 470 (C.S.).
28See the Loi sur le barreau du Quebec, L.R.Q. c. B-i, s. 56.
29For recent developments see The [Ontario] Lawyers’ Weekly (4 November 1988) 7.
Approximately 300 Ontario barristers and solicitors have qualified for practice as specialists in the
barrister’s function. For announcement of a British Columbia practice designated as that of
“Barristers at Law”, see (1989) 47 The Advocate 315.

30Code de diontologie des notaires, R.R.Q. 1981, c. N-2, r. 3, art. 4.01.01.
31See, for example, Le Barreau (December 1983) 3 reporting the declaration of Biatonnier Louis
LeBel to the effect that “I1 faut parfois savoir choisir entre la profession et une activit6 exteme.”

1990)

NOTES

While there is no prohibition on the exercise of an outside profession or busi-
ness, as in the European model, there remains a prohibition of any such activity
which threatens the proper exercise of the profession, and the matter is not left
to more specific provisions relating to conflict of interest between lawyer and
client. The incompatibility is not absolute, but it remains an incompatibility of
function, and therefore reinforces the concept of role.

It is consistent with the existence of divided professions and the incompat-
ibilities which define them that there exists a strong professional organization
capable of maintaining these definitions of professional role. Here the Canadian
pattern is more clearly in the European tradition. It appears evident that while
European incompatibilities have been renounced in favour of greater freedom of
professional practice and greater reliance on individual professional ethics, the
means of enforcement of such ethics has remained at least equivalent to those
which exist in Europe. There is much to suggest that Canadian professional gov-
ernment is even stronger than its European counterpart. Membership in a pro-
fessional organization is essential to practice, periods of articles or stage are
obligatory, in all cases accompanied by training organized by the professional
organization itself, and the professional organizations impose substantial fees to
support the wide range of activities they undertake. This pattern is radically dif-
ferent from that prevailing in the United States, and in the measure that provin-
cial bar or notarial organizations are well funded and staffed it is also a depar-
ture from many European national models. For present purposes, it is the
disciplinary and inspection powers of the provincial governing bodies which are
most striking. They include the provisions for inspection of professional com-
petence in the province of Quebec, generalized regulations for inspection or
audit of professional accounts, and disciplinary procedures which are actually
used as a means of implementation of ethical standards. While precise statistics
are unavailable, examination of reported provincial disciplinary proceedings
suggests that the Canadian professions produce hundreds of disciplinary deci-
sions annually, roughly equivalent to the number of disciplinary proceedings in
the whole of the United States, where the profession is more than ten times the
size. Perhaps most significantly, disciplinary proceedings extend to violations of
ethical standards where no harm is caused to the client, and the notion of con-
flict of interest is thus given an ethical dimension which raises the principles
relating to conflicts of interest beyond the level of rules of civil liability.32

Finally, the Canadian professions have not followed, at least as yet, the
U.S. pattern of enunciation of detailed and black letter rules of professional con-
duct. At a time when general standards of conduct are increasingly found in
texts of law of general application, the decision appears to have been made to

32See, for example, British Columbia Disciplinary Digest, (August 1987) 3.

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(Vol. 35

resist the “enormous pressure to legalize professional ethics.”33 Instead general
standards, the explication of which is the ongoing function of the professional
organization itself, have been retained. The Preface to the Code of Professional
Conduct adopted in 1987 by the Canadian Bar Association explicitly states that
“…
the Code does not attempt to define professional misconduct or conduct
unbecoming, nor does it try to evaluate the relative importance of the various
rules or the gravity of a breach of any of them. Those functions are the respon-
sibility of the various governing bodies…. The essence of professional respon-
sibility is that the lawyer must act at all times uberrimaefidei … .. It is, in short,
a Code which instructs in how to act, and not in what to do.

Conclusion

In his Ethics and the Limits of Philosophy’ Bernard Williams concludes
that all philosophical efforts to ground ethics objectively in a process of prac-
tical reasoning, from Aristotle through Kant and beyond, have failed. In spite
of this, he declares himself to be resolutely optimistic, though ethics for the
moment, and for him, can be rooted in nothing more than human disposition.
This is the conclusion of a philosopher who has examined moral philosophy and
found it, in his words, “… not involved enough; it is governed by a dream of
a community of reason that is too far removed … from social and historical real-
ity and from any concrete sense of a particular ethical life –
farther removed
from those things, in some ways, than the religion it replaced.”35 He is optimis-
tic, however, since this conclusion in his view is not conclusive in ethical mat-
ters. It simply indicates that “… we need to have some reflective social knowl-
edge, including history, that can command unprejudiced assent if the better
hopes for our self-understanding are to be realized. We shall need [this] if we
are to carry out the kind of critique that gives ethical insight into institutions
through explanations of how they work and, in particular, of how they generate
belief in themselves.” 36 If the philosophers cannot tell us how to live an ethical
life, and yet ethical lives are lived, we need to know how it is done. The ethics
of the legal profession suggest that there is more involved than individual
human disposition.

33Esau, supra, note 21 at 410.
34(London: Fontana Press/Collins, 1985).
35Ibid. at 197-98.
36Ibid. at 199.