It is well-known that lawyers are bound to the highest of ethical standards arising from the Law Society’s rules of professional conduct and ethics. While law students are officially not bound by the same rules, the standards of professionalism and ethics arguably apply to students who are in essence at the very beginning of their legal careers.
In light of the above, first year students at the University of Toronto Faculty of Law must attend mandatory Professionalism and Ethics classes, with some of the curriculum emanating directly from the Law Society of Upper Canada. Furthermore, the Faculty offers a number of elective courses that examine the complex issues entailed within the broad topic of lawyers’ professional ethics. An example of such a course is this Fall term’s upper year elective taught by visiting professor Allan Hutchinson, a well-known legal theorist from Osgoode Hall Law School, with an international reputation for his original and provocative writings on the legal profession. This intensive course, entitled Legal Ethics and Lawyer Regulation, focused on legal ethics and the regulation of the legal profession and it examined various topics such as the lawyer-client relationship, confidentiality, conflicts of interest, the duty of loyalty and ethics in advocacy, counseling and negotiations.
On November 9, 2016, the Asper Centre’s Executive Director Cheryl Milne and the Centre’s Constitutional Litigator in Residence Janet Minor participated in a panel discussion in Professor Hutchinson’s course, in order to highlight to the students some of the ethical and professionalism issues that arise in their specific law practices. Ms. Renatta Austin (JD 2014), a lawyer in private practice, also took part in the panel discussion.
Ms. Austin began the session by talking about the issue of lawyer competence as it relates to professionalism. In her sole-practice, she explained how she is sometimes wary of overextending herself by taking on legal matters for which she does not have the requisite experience. She also cautioned against taking on more than one type of matter for a client, providing an example of a lawyer she interacted with whom she observed representing both parents in a child wardship case while also representing one of the parents in a criminal matter. She criticized this practice as cases often have different goals and paramount interests and thus taking on all of them can potentially create ethical issues.
Ms. Minor provided the class with a perspective of some of the ethical issues encountered by a government lawyer. She spent the bulk of her lengthy legal career as General Counsel in the Constitutional Law Branch of the Ontario Ministry of the Attorney General. She discussed ethical responsibility, the role of the Attorney General and the challenges of being a government lawyer, in particular the conflict that may arise when government lawyers must defend policy or legislation that may clash with their personal opinions. In response to a question, Ms. Minor surmised that government lawyers, while held to the same ethical and professional standards as other lawyers, are often viewed by judges differently and held to an even higher standard as they are expected to demonstrate the best conduct, provide total disclosure, always act with courtesy and not exhibit any ‘shark-like’ lawyer practices.
Ms. Milne started her presentation by discussing the various ethical issues she encountered while working as staff lawyer at the NGO Justice for Children and Youth, such as having to diligently ensure that her child clients were deemed competent to provide her with instructions. She then highlighted her unique dilemma as the Executive Director of the Asper Centre charged with promoting the work of the Centre, while at the same time acting as the lawyer of record on many of the Centre’s cases, thereby being bound by the duty of confidentiality insofar as publicly discussing the cases. This dual role perhaps may seem confusing to students but Ms. Milne treads carefully in both roles and ensures her clients’ interests at all times.
The number and quality of questions and comments exchanged between the students and the presenters during this panel discussion demonstrated that law students are indeed engaging with these issues in a meaningful way, thus preparing to assume the professional and ethical obligations that they will ultimately owe themselves, the public and their profession.