Duty to the State

The lawyer’s duty to the State

Compiled by Eric B. Appleby:

The lawyer’s duty to the state includes the entity, its systems and its people. The New Brunswick Code of Professional Conduct (2003), chapter 20, commentary 1, states: “The paramount duty of the lawyer is to serve the cause of justice”. The British Columbia Canons of Legal Ethics (1992), chapter 1, states: “A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law”.

The lawyer is more than a private citizen. The lawyer has been considered as being almost a public servant. In Mayor of Norwich v. Berry (1767), 4 Burr. 2109, Yates, J. stated at page 2115 “The Court must have ministers; the attorneys are its ministers”.

A lawyer is duty bound not to subvert the legal system. A lawyer must not counsel or assist his client to break or subvert the law. Examples of prohibited conduct are:

• making a false recital in a deed;
• subornation of perjury;
• permitting a client to swear a false affidavit;
• assisting a criminal to escape the country;
• accepting a transfer of property in fraud of the transferor’s creditors;
• the bringing of proceedings for the sole purpose of delay.

In the case of Kelly v. Low (2000), 257 A.R. 279 (Q.B.), a lawyer was sued for damages for defamation. The Alberta Court of Queen’s Bench allowed the action and awarded the plaintiff $5,000 punitive damages. At para. 226 the court stated: [226] “…. Ms. McLean referred extensively in her Brief to the Code of Conduct of the Law Society of Alberta. While in many ways I believe Mr. Kelly and Mr. Low deserve each other in the way they behaved, Mr. Low carries special responsibilities as an officer of the court. Society is entitled to expect members of the Law Society to conform to a higher standard of conduct. Mr. Low has fallen below that standard in writing the letter. As a member of the Law Society, it was incumbent upon him to be more sensitive to the issues raised in his letter and how he raised them. I am awarding Mr. Kelly $5,000 in punitive damages to punish Mr. Low for a standard of conduct I feel falls below that which the public is entitled to expect from a member of the Law Society.”

In the case of R. v. Morrison a lawyer was charged and convicted of fraud. In considering sentence the Nova Scotia Court of Appeal stated that a lawyer has a special duty to avoid criminal conduct. See R. v. Morrison (1975),13 N.S.R.(2d) 98; 9 A.P.R. 98 (C.A.). At para. 13 the Court of Appeal stated: [13] “Furthermore, even had no client been involved, we must especially denounce crimes of fraud and forgery committed by a member of the Bar, a sworn officer of this Court. Such a man has a special duty. We must deal with a breach of that duty temperately, mercifully and without undue righteousness, but at the same time firmly and to warn others.”

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This entry was last updated: February 13, 2017