Why you shouldn’t sleep with your clients

News that Bay Street law firm Borden Ladner Gervais, and partner George Hunter are being sued by Mr. Hunter’s former client over a “romantic/sexual” affair he had with her in 2003 raises, once again, the thorny ethical issue of whether lawyers should be allowed to maintain this type of relationship with a client.  Mr. Hunter plead guilty to charges of professional misconduct in February 2007, and was suspended from practice for 60 days.

What makes this case interesting is that at the same time he carried on the affair over which he is now being sued, Mr. Hunter sat on a disciplinary panel for the Law Society of Upper Canada that also dealt with allegations of sexual involvement between another Ontario lawyer and that lawyer’s client.  That lawyer was disbarred.

Step away from that Nuclear Safety Commission

Linda Keen’s response to Natural Resources Minister Gary Lunn’s recent dealings with the Canadian Nuclear Safety Commission over the National Research Universal (NRU) nuclear reactor at Chalk River, Ontario, raises 2 very interesting questions about quasi-judicial tribunals in Canada:

1. Just how much independence can one expect from an administrative tribunal?

2. How far should members of an administrative tribunal go to protect that independence?

The ethics of racy divorce ads

This, from Above the Law and Legal Blog Watch:  The Chicago law firm of Fetman Garland & Associates has been generating some controversy with its “Life is Short – Get a Divorce” ad campaign.

Corri Fetman, one of the partners in the firm, is reportedly the female in the advertising photographs, and is now apparently writing a regular column for Playboy magazine on “Love and the Law”.

Carolyn Elefant’s criticism on Legal Blog Watch centers around her perception of whether the campaign will be effective at attracting clients.  That misses the point.

The Andrew Speaker Controversy (Part II) – An analysis under Canadian rules

The facts surrounding the Andrew Speaker controversy provide a very interesting case study for an inquiry into how far professional disciplinary regulation in the legal profession ought to reach into personal activities unrelated to the lawyer’s professional practice. I would like to emphasize once again, that none of the allegations made against Mr. Speaker have been proven in court. Nor has any investigation into Mr. Speaker’s conduct been commenced by any disciplinary tribunal to which he may be subject.

This analysis proceeds on the assumption that Mr. Speaker has breached no laws of his own any other country, and that the allegation that he traveled against the advice of his doctors, as detailed here.

As my December 28, 2007 article demonstrates, on these assumptions, Mr. Speaker would likely face no discipline from any disciplinary authority over the legal profession in the United States.

How would he fare in Canada?

Lawyers and legislation

In response to the Virginia Bar Association president’s lament over the dearth of lawyers in the Virginia state legislature, Overlawyered, in this piece, suggests that

… one possibility is that lawyers do on average bring with them a superior skill set on issues of legislation and governance, but that the voting public no longer trusts the independence of their judgment and their allegiance to the general good as it once did, fearing that they will instead advance the interest of organized factions, perhaps including the self-interest of the legal profession itself.

The training that lawyers have, and their “on the ground” experience with law and legislation unquestionably gives lawyers a superior skill set for dealing with governance, but Mr. Olson once again underlines the major issue facing the legal profession today.

The Andrew Speaker controversy – How far should professional discipline reach?

I have argued that one of the more vexing problems for the practicing lawyer, and for professionals generally, is the extent to which non-professional activities ought to be subject to discipline by their professional associations.  This is of particular concern to the legal profession.  There are a number of reasons for this.  The role of the legal profession has a public dimension.  Lawyers often act in cases of public notoriety. In any event, lawyers conduct much of their work in a public forum – the courts.

Even when a lawyer does not work in a public forum, all lawyers solicit the public’s trust.  A lawyer’s client reposes in the lawyer, his or her most serious problems and the most private details of their lives.

The impact that a lawyer’s private actions have on the profession was made clear in the case of Andrew Speaker.  It is alleged that Mr. Speaker boarded a flight from the United States to Europe, to travel to various points in the region for his wedding and honeymoon.  The allegation is that he did so after having been diagnosed with tuberculosis in January 2007.  Mr. Speaker maintains that he was told he was not a danger to anyone, and has denied that he had been warned by doctors not to travel in his condition; however, media reports indicate that the Fulton County, Ga., Department of Health and Wellness tried to prevent Mr. Speaker from traveling in May 2007 because of concerns his strain of tuberculosis would make him contagious to other passengers.

The authorities were apparently unable to prevent Mr. Speaker from traveling.  While Mr. Speaker was in Italy, officials for the Center for Disease Control made contact with him and advised him that he had been diagnosed with extensive drug-resistant tuberculosis.  The CDC apparently offered care and special transportation back to the United States, however Mr. Speaker declined.  Mr. Speaker has said that the CDC advised him that he should check himself into an Italian hospital and await further instruction and treatment.

Mr. Speaker disputes this account, as seen in this Wikipedia entry.

Mr. Speaker then boarded a flight to Montreal, Canada, drove across the Canada – U.S. border and turned himself into a hospital in New York.

Although Mr. Speaker was originally diagnosed with extensive drug resistant tuberculosis, that diagnosis was later revised to a diagnosis of multiple drug resistant tuberculosis.  It must be remembered that both extensive drug resistant tuberculosis and multiple drug resistant tuberculosis are less contagious than ordinary tuberculosis, notwithstanding that they are much more difficult to treat.

Mr. Speaker has since apologized publicly for having traveled knowing that he had tuberculosis, and was placed under quarantine since his arrival in the United States.  He later claimed he was tricked into isolation.  The CDC has not used its quarantine power since 1963.

It is important to note that none of these allegations have been proven in court.  Nor, to my knowledge, has any investigation into Mr. Speaker’s conduct been commenced by any disciplinary tribunal to which he may be subject.

Let’s assume for the moment that the CDC’s account is correct, and that Mr. Speaker had been advised not to travel.  In making this assumption, I want to be clear that I am making no comment on whether or not those are the true facts.

Should a lawyer in this situation be subject to discipline?  Recall, that we are assuming a lawyer who is traveling against the advice of doctors concerned about the likelihood and consequences of infecting an indeterminate number of unknown people with a life-threatening disease.

I have argued it isn’t enough that a lawyer merely adhere to the law.  The lawyer must demonstrate integrity, a commitment to uphold the law, and that he or she must avoid questionable conduct.

I am not a lawyer licensed in Georgia or any other U.S. State.  Therefore, I make no comment on whether Mr. Speaker violated any laws.  In fact, for the purpose of this analysis, it is convenient to assume that he did not violate any laws.

A strict rule-based approach to professional ethics would simply require that a disciplinary authority refer to its professional code to see if there has been any violation.  The Georgia Rules of Professional Conduct appear to be based upon the American Bar Association Model Rules, with some revisions.

Interestingly, the Georgia Rules’ Preamble has omitted the sentence “A lawyer’s conduct should conform to the requirements of law, both in professional service to the clients and in the lawyer’s business and personal affairs. …”  It does, however, retain the admonition that “…A lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as by substantive and procedural law. A lawyer also is guided by conscience and the approbation of professional peers. …”

Cold comfort indeed.

Rule 8.4 of both the ABA Model Rules and the Georgia Rules deal with “Misconduct”, however the Georgia Rules are even more permissive than the ABA version.  In any event, neither contains any rule that appears to apply, since we have assumed that there has not been a breach of any law.  On this analysis, our hypothetical lawyer escapes professional sanction disciplinary authorities.

Is this what we want as a profession?  More importantly, would the public want this?  The general public’s approval or approbation should not be the ultimate yardstick against which professional conduct is measured.  It is, however, something that the profession must bear in mind.  The essence of the lawyer’s function depends upon the public’s trust.  If the profession does not sanction a lawyer’s private conduct which suggests that the lawyer would not place the public’s safety ahead of his or her private desires, then the public ought rightly to question whether the profession as a whole is worthy of trust.

Rightly or wrongly, the public has been quick to assume the worst case against Mr. Speaker.  Even the cursory review of a simple Google search on the matter suggests that the public would be extremely dissatisfied in allowing a lawyer found to have engaged in the conduct that I have assumed for this analysis, to escape all sanction from his or her disciplinary authorities.

In this particular case, what ought to be the guide is whether a fair-minded member of the public, fully apprised of all the facts, would be satisfied with the result.

In the end, the legal profession is not well served by rules that ignore the impact of a lawyer’s private actions on the public’s respect both for the profession and the rule of law.

I suggest that model rules of professional conduct should articulate broad principles that acknowledge the public holds lawyers (and indeed all professions) to a higher standard of behavior even in private life.  The heart of these principles for the private actions of professionals lies in the principle of uberrimae fidei, and the concept that the profession is accountable to the fair-minded, properly informed member of the public.

In future entries, I will explore the question of whether the disciplinary result would be different in Canada, together with an examination of what would be the disciplinary result of an analysis based  on the concepts I have outlined.

Lawyers after dark

The extent to which a lawyer’s non-professional activities should subject him or her to professional discipline can sometimes be a difficult minefield to navigate.  The question cannot be conveniently ignored, however.  It’s most often in social activities and personal interactions with members of the bar that a member of the public forms his or her first impressions of the legal profession.

The lawyer’s conduct in his or her professional life must be guided by 3 principles:  Firstly, the lawyer must at all times show integrity.   Any doubt about a lawyer’s commitment to honesty and right conduct understandably raises a cloud of suspicion over the whole profession.

Secondly, the lawyer must show commitment to uphold the law and the judicial process.

Thirdly, the lawyer must avoid questionable conduct, or conduct that tends to reflect poorly on the profession as a whole.   This last requirement is perhaps the most difficult to analyze, since what qualifies as “questionable conduct” is difficult to define.

Interestingly, the American Bar Association Model Rules of Professional Responsibility only appears to address a lawyer’s non-professional activities in its Preable:

[5] A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

Now, that must surely be a novel concept:  The Model Rules seem to suggest that the profession’s sole duty outside activities related to the actual practice of law is to adhere to the very laws the profession interprets for others.  Presumably, the whole point of interpreting law for a client is to assist the client in keeping within the law’s confines.  The public should find it troubling that the legal profession feels compelled to remind its members that they have the same responsibility.

In my view, avoiding questionable conduct goes much further.  Lawyers, like all professionals, occupy a position of trust in society.  Even when a lawyer acts within the strict confines of the law, the lawyer must be mindful of creating the appearance that he or she has taken advantage of his or her specialized legal knowledge and skill to the detriment of others.

The Canadian Bar Association’s requirements, in my view, are more in line with what the public has a right to expect:

Preface

.          .          .

The essence of professional responsibility is that the lawyer must act at all times uberrimae fidei, with utmost good faith to the court, to the client, to other lawyers, and to members of the public. Given the many and varied demands to which the lawyer is subject, it is inevitable that problems will arise. No set of rules can foresee every possible situation, but the ethical principles set out in the Code are intended to provide a framework within which the lawyer may, with courage and dignity, provide the high quality of legal services that a complex and ever-changing society demands.

The extent to which each lawyer’s conduct should rise above the minimum standards set by the Code is a matter of personal decision. The lawyer who would enjoy the respect and confidence of the community as well as of other members of the legal profession must strive to maintain the highest possible degree of ethical conduct. The greatness and strength of the legal profession depend on high standards of professional conduct that permit no compromise.  [emphasis added]

.          .          . 

Uberrimae fidei is a concept with its origins in insurance law.  Its scope of set out in the often-quoted case of Carter v. Boehm (1766), 97 E.R. 1162 (K.B.) at 1164: 

Insurance is a contract of speculation… The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist… Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.

The parallel is subtle.  In most of the free democracies, the legal profession is granted the right to regulate the conduct of its own members without interference from government.  Lawyers are also granted a virtually exclusive right of audience before the courts and an effective monopoly on the ability to offer legal advice.

This is a privilege that the profession must never take for granted, since it is given to the profession blindly – speculatively.  The public has very little in the way of information or ability to judge the quality of the services our profession provides.  The public must rely upon the profession to guarantee the quality of service that it makes available, and to discipline its members appropriately when the level of service fall short.

As a result, every dealing by lawyers with members of the public must be taken with that in mind.  The lawyer must remain above reproach.

We see this theme throughout the Canadian Bar Association’s Code.  I apologize to the reader for quoting extensively from the Model Code, however it is published as a PDF file without any ability to link to particular chapters.

CHAPTER I – INTEGRITY

RULE
The lawyer must discharge with integrity all duties owed to clients, the court or tribunal or other members of the profession and the public.

Commentary
Guiding Principles
1. Integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession.  If the client is in any doubt about the lawyer’s trustworthiness, the essential element in the lawyer-client relationship will be missing. If personal integrity is lacking the lawyer’s usefulness to the client and reputation within the profession will be destroyed regardless of how competent the lawyer may be.

2. The principle of integrity is a key element of each rule of the Code.

Disciplinary Action
3. Dishonourable or questionable conduct on the part of the lawyer in either private life or professional practice will reflect adversely upon the lawyer, the integrity of the legal profession and the administration of justice as a whole. If the conduct, whether within or outside the professional sphere, is such that knowledge of it would be likely to impair the client’s trust in the lawyer as a professional consultant, a governing body may be justified in taking disciplinary action.

Non-Professional Activities
4. Generally speaking, however, a governing body will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the integrity of the legal profession or the lawyer’s professional integrity or competence.  [emphasis added]

.          .          .

CHAPTER XVI – RESPONSIBILITY TO LAWYERS AND OTHERS

RULE
The lawyer’s conduct toward all persons with whom the lawyer comes into contact in practice should be characterized by courtesy and good faith.

.          .          .

CHAPTER XIX – AVOIDING QUESTIONABLE CONDUCT

RULE
The lawyer should observe the rules of professional conduct set out in the Code in the spirit as well as in the letter.

Commentary
Guiding Principles
1. Public confidence in the administration of justice and the legal profession may be eroded by irresponsible conduct on the part of the individual lawyer. For that reason, even the appearance of impropriety should be avoided.

.          .          .

Standard of Conduct
10. The lawyer should try at all times to observe a standard of conduct that reflects credit on the legal profession and the administration of justice generally and inspires the confidence, respect and trust of both clients and the community.

The American Bar Association Model Rules try to provide the lawyer with guidance as to what his or her professional duties are in a wide variety of potential situations the lawyer might encounter at work, but provides little in the way of guidance for the lawyer “after dark”.

The difficulty with this approach is two-fold.

Firstly, it produces a tendency in the profession for members to view professional responsibility as ending at the office (or courthouse) door.   While many may argue that they are not defined by their work, for members of the learned professions, this simply is not the case.

Every doctor, clergyman, and indeed every lawyer, as an individual will certainly have outside interests, and may well play different roles in the different aspects of his or her life.  That said, membership in the learned professions is a calling and inevitably touches every aspect of the member’s life.   The lawyer’s position in society is quasi-official, and the membership is not evaluated solely by their competence at work.  The profession ignores the inextricability of its members’ personal and professional lives at its peril.

Secondly, this approach encourages a rule-oriented attitude that proceeds with a view that if certain conduct is not specifically prohibited, then it must be allowed.  At the same time, the multiplicity of rules discourages the exercise of professional judgment.  Over time, the membership acts with a natural tendency to skirt as closely to the rules as possible when making decisions that impact upon the members personally.  In the result, a disconnect emerges between the manner in which the profession enforces the conduct of its members, and the public’s expectations from a profession in which it has reposed considerable trust and authority.

I argue that the better approach is to instill in the membership, an attitude that it has been shouldered with a special responsibility to the democracy in which it carries on practice.  Accordingly, every member must be above reproach, or the public will rightly consider that its trust has been abused.