Professional Duties

The Lawyer’s Professional Duties

From the book “Professional Conduct For Lawyers And Judges”, by Beverley G. Smith, Professor Emeritus, Faculty of Law, University of New Brunswick:

In order that the matter of a lawyer’s duties as a professional legal person be put in proper perspective, the obvious question must be asked: duties to whom or to what? In answer, it will be recalled that a lawyer serves several masters – the state, the court, the client, the profession, colleagues, even her/himself. One must look at all of these relationships when considering what duties the lawyer faces in any given situation. In this connection the word “duty” is often used in our Canadian codes with no indication as to the kind or scope of duty intended. Therefore, unless otherwise indicated, it will be assumed that a “duty” not otherwise delineated is to be considered as a requirement of loyalty, or of obedience, or of adherence to a system, a principle or a course of conduct, depending upon the context.

The Lawyer’s Professional Duties – to the state

When discussing a lawyer’s duty to the state, the term “state” is used in its broader sense of including the entity, its systems and its people. In fact, the C.B.A. Code deals with this duty by referring to some of the state’s component parts. Thus it mentions “the court”, “the public”, and “the administration of justice”,39 rather than the state per se. It appears clear from a consideration of various parts of the C.B.A. Code that members of the public, the court and the system of the administration of justice occupy very high positions in the estimation of its framers, insofar as the duty of loyalty owed to them respectively is concerned. Indeed, in its Preface40 the Code leaves little doubt but that the highest duty of loyalty is owed to what is called “the protection of the public interest.” That is an undefined term but perhaps not inaccurately may be taken to include the state and its systems, as well as its people.

More direct statements on the duty of loyalty to the state are found in some provincial codes, with emphasis in some being placed on the paramountcy of the duty. For example, New Brunswick’s Professional Conduct Handbook states in Part A, Rule 1: “A lawyer’s paramount duty is to serve the cause of justice.” It would be assumed that “the cause of justice” would be as espoused and encouraged by the jurisdiction or state in which the Rule operates.

While not stressing the paramountcy of the duty, British Columbia’s Canons Of Legal Ethics indicates: (41)

“1(1) 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.”

Some quarters have acknowledged the duty of loyalty to the state and its institutions but have made it secondary to the lawyer’s duties to the client.42 The Canadian view however is a strong one. The lawyer’s duty to the state and its systems is one of loyalty, and it is amongst the highest, if not the highest, duty.

Not as directly expressed is the lawyer’s duty to the people of the state, often referred to in the codes as “the public” or “the general public”. With some exceptions the codes are silent on duty to the general public but with this underlying caveat: what the lawyer does should never bring harm to that public.(43) In addition, and again implied indirectly, there is the duty of showing to the public that the lawyer upholds the administration of justice.44 Other exceptions to the codes’ silence respecting the general public include making oneself available to provide legal services to the public (although with a right to refuse those services),45 and looking out for the rights of unrepresented third parties.(46)

The Lawyer’s Professional Duties – to the court

The lawyer is on reasonably solid ground when considering duties to the court. History plays a part in this high duty. For nearly 800 years attorneys and solicitors in England have been regarded as officers of the courts in which they served and as such subject to its direction.(47) Barristers on the other hand have not been so regarded.48 In Canada the residence in the lawyer of both solicitor and barrister powers and duties results in the Canadian lawyer being considered an officer of the court(49) and thereby made a partner in its process. The C.B.A. Code indicates that the lawyer’s duties to the court include the duties of “candour, fairness, courtesy and respect.”(50) In a fairly long list of “don’ts”, the C.B.A. Code advises the lawyer not to “abuse the process of the tribunal by instituting or prosecuting proceedings that … are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring another party.” The lawyer must not “knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonorable.” The lawyer must not “knowingly attempt to deceive … a tribunal or influence the course of justice by offering false evidence”, and so on.(51)

Similarly, in the British Columbia provincial code the lawyer is exhorted to maintain toward the judges of the courts a courteous and respectful attitude and insist on similar conduct on the part of the client.(52) In the New Brunswick code the reason behind the duty to respect the court and to maintain proper decorum toward it at all times is stated to be “for the purpose of enhancing public confidence in the administration of justice.”(53) The description as officer of the court binds the lawyer even more closely to the court and its system, and provides the basis for a substantial number of the conflicting claims of duties owed to the court and those owed to others.

It is apparent that the Canadian lawyer’s various duties to the court are closely linked to an overall duty of loyalty to the system of the administration of justice. The court is the beneficiary of this possibly paramount state duty.

The Lawyer’s Professional Duties – to the client

Duties to one’s client are at once fairly easily delineated and are yet more complex because of the close human interaction that takes place in the lawyer-client relationship. Most codes acknowledge, directly or indirectly, that such duties include honesty, integrity, trustworthiness, respect, loyalty, compassion and competence – synthesized into integrity, competence and quality of service. Indeed, the first two chapters of the C.B.A. Code use these same three expressions as chapter headings, and give practical illustrations of all three aspects of professional legal conduct. While perhaps variations on the theme, Chapter III of the Code deals with honesty and being candid when advising the client, while Chapters IV, V and VI stress confidentiality, impartiality and avoidance of conflict of interest respectively. Farther on in the Code indications are given as to what a client should be entitled when being represented by the lawyer as advocate. Fees are dealt with as well as withdrawal of legal services from a client.

Many of the provincial codes follow similar lines of thought as those found in the C.B.A. Code.54 It is of interest to note that in at least one other code it is indicated the actions of a lawyer in fulfilling duties to a client must be tempered by the lawyer’s duty to the courts and the administration of justice.(55) Several of the Canadian codes have particular duties set out, for example, as to what constitutes appropriate professional legal conduct in the preparation of a will.56 Mutual trust is emphasized57 as well as the avoidance of any misrepresentation with respect to the level of competence of the lawyer or the efficiency of the lawyer’s services.58

Due to the wide acceptance of the C.B.A. Code’s standards there is some consistency of approach to standards of professional conduct in the lawyer-client relationship across Canada. This should be at once heartening and productive of caution, in that whereas the legal profession appears to be of like mind across our country, it should be careful lest it advocate a poorer approach than may be available.

The Lawyer’s Professional Duties – to the profession

The duties that a lawyer owes to the profession have similar objectives as those owed to the state and its public. The C.B.A. Code addresses the matter when it states that the lawyer should assist in maintaining the integrity of the profession and should participate in its activities.(59) This includes a duty to assist in preventing the unauthorized practice of law,(60) and to abstain from involvement with interests outside the profession in which the lawyer’s conduct might bring the profession into disrepute.(61) Especially in relation to the latter, one is led to conclude that, as in the court relationship, the lawyer is to uphold the integrity of the profession in order that the confidence of the public may be maintained therein.

Again, provincial codes largely mirror the C.B.A. Code approach to the profession generally.

Important manifestations of “the profession” are of course the law societies of the various Canadian provinces and territories. Without disregarding the authority of courts, these bodies and their functions in regulating the profession and its members are basically responsible for the life and discipline of the profession itself. They thus speak and act for it, providing the practical edge to the more abstract notion of “the legal profession”.(62)

The Lawyer’s Professional Duties – to colleagues

Especially the C.B.A. Code strongly addresses the duty of professional collegiality. It states that the lawyer’s conduct toward other lawyers should be characterized by courtesy and good faith. This is on the basis that “Fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially” to the end of serving the public interest effectively and expeditiously.(63) Sharp practice between lawyers is eschewed.(64)

Several codes discuss the important matter of undertakings between lawyers.(65) Breach of such undertakings constitutes professional misconduct in at least one code,66 while others deal with some of the specifics of undertakings. Further, several codes prohibit competition for clients amongst lawyers where there is a subsisting relationship between client and lawyer or client and firm.(67)

It is clear that the C.B.A. Code and others have in mind the underlying concept of what was in times past referred to as gentlemanly conduct amongst lawyers,68 with two major objectives in mind. The first is the holding up to the public of the integrity of the justice system and the profession. The second is contributing to the expedition of clients’ business. Thus for both altruistic and pragmatic objectives certain levels of conduct are sought.

The Lawyer’s Professional Duties – to oneself

Can one say that the lawyer indeed owes duties to him/herself when acting in a professional capacity? Along a spectrum one sees the lawyer, professionally engaged, attempting to fulfil duties to state, court, client, profession and colleagues. Can the lawyer figure personally in that spectrum? Some observers think that not only the lawyer can but should.(69) They postulate that though professional, the lawyer must bring personal standards and values into any situation in which the lawyer is professionally engaged. If this is not done, the lawyer may compromise her/his own perhaps higher standards in adhering unswervingly to other standards not of the lawyer’s own making, since it is under the pressure of sanctions that the latter may be being observed. Indeed, this may be a variation of the “moral schizophrenia” of which Raymond Belliotti speaks when the lawyer is endeavouring to rationalize sets of duties under which the lawyer is practising and which appear to conflict with the lawyer’s own values.(70) Also, to ignore a recognition of one’s own standards when dealing professionally may result in a somewhat slavish adherence to the letter, rather than to the intent, of the duties placed upon the lawyer through codes of conduct and legislation. Finally, at the least one’s personal values are a helpful comparative to the other values imposed in the form of duties, which latter must again be remembered to be by way of minimum standards.

The various duties briefly set out in the immediately foregoing paragraphs will be more extensively examined in the light of particular topics raised in various succeeding chapters.

Conflicts Of Duties – How Resolved

There appear to be four basic steps in attempting to resolve a problem involving professional legal conduct. The first step is to ascertain whether there may be a professional duty or duties owed. The next is to determine to whom or to what the duty or duties may be owed – i.e., to what constituencies. The third is to ask whether there is in fact a conflict between or amongst the duties owed. Assuming there is a conflict, the final and critical step is to conclude – on some basis – which duty must give way to the other.

The majority of professional legal conduct problems appear receptive to the approach suggested above. Confidentiality toward a client versus candour to the court; loyalty to one’s corporate client versus the best interests of the general public; advancing a client’s position versus accommodating a colleague’s missed filing date – the list is a long one, but many of the conflicts appear capable of clarification in the manner outlined.

Notes

39. C.B.A. Code, c. I, Rule and Commentary 3. See also N.B.P.C.H., Part A; Professional Code, R.S.Q. 1977, c. C-26; B.C.P.C.H., c. 1, Canon 1.

40. C.B.A. Code, Preface, pp. vii and viii.

41. B.C.P.C.H., c. 1, Canon 1(1).

42. The Roscoe Pound-American Trial Lawyers Foundation has propounded this view in the past. In a public discussion draft dated June, 1980, entitled The American Lawyer’s Code of Conduct, the Foundation stated: “[The Code’s] basic conviction is that the lawyer’s primary duty is his or her duty to each individual client that comes to that lawyer for help.” (Introduction, p. iii.)

43. See, e.g., p. viii of the Preface to the C.B.A. Code which states in part: “The Code of Professional Conduct that follows is to be understood and applied in the light of its primary concern for the protection of the public interest.” See also generally Qué. C.e.a., Division II, “General Duties And Responsibility To The Public”.

44. C.B.A. Code, c. XIII, Rule and Commentaries. The Rule in this chapter is: “The lawyer should encourage public respect for and try to improve the administration of justice.” This wider duty is amplified in Commentary 1 to the Rule which indicates that the admission to and continuance in the practice of law imply on the part of the lawyer a basic commitment to the concept of equal justice for all within an open, ordered and impartial system. It continues: “However, judicial institutions will not function effectively unless they command the respect of the public. Because of changes in human affairs and the imperfection of human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it.” See also Ont. P.C.H., Foreword; Yuk. C.P.C., Preamble. Mark M. Orkin, Q.C., in his work “Legal Ethics” (Toronto: Cartwright & Sons Ltd., 1957) at p. 50, speaking of the preparation of witnesses, makes the statement: “A lawyer should never let his natural desire to win the case for his client overcome his paramount duty to serve the cause of justice.”

45. C.B.A. Code, c. XIV, Rule (and Commentary 6). See also Ont. P.C.H., Rule 12; Commentary 5.

46. C.B.A. Code, c. XIX, Commentary 8. See also N.B.P.C.H., Part C, Rule 8; Ont. P.C.H., Rule 5, Commentary 14; B.C.P.C.H., Appendix 3, s. 8.

47. See, e.g., Abel-Smith and Stevens, Lawyers And The Courts (London: Heinemann Educational Books Ltd., 1967), p. 19.

48. See Michael Birks, Gentlemen of the Law (London: Stevens and Sons Limited, 1960), pp. 6, 7; 106 et seq.

49. See, e.g., N.B.P.C.H., Introduction, which also describes the lawyer as a minister of justice; Sask. C.P.C., Preface, p. v.

50. C.B.A. Code, c. IX, Commentary 1. See also N.S.L.E.P.C.H., c. 14; N.B.P.C.H., Part B; Qué. C.e.a., s. 2.06; Ont. P.C.H., Rule 10; Man. C.P.C., c. 9; Sask. C.P.C., c. IX; Alta. C.P.C., c. 10; B.C.P.C.H., c. 1, Canon 2(1); c. 8; Yuk. C.P.C., Part Three.

51. C.B.A. Code, c. IX, Commentary 2.

52. B.C.P.C.H., c. 1, Canon 2(1).

53. N.B.P.C.H., Part B, Rule 3. Other Canadian legal conduct codes similarly provide: see, e.g., C.B.A. Code, c. XIII, Commentaries 1 and 3; Ont. P.C.H., Rule 11, Commentaries 1 and 2.

54. Indeed, the 1974 or the 1987 C.B.A. Code has been adopted or used as a model for the codes in a number of provinces and territories. See this chapter, fn. 35, supra, for the present usage of the two versions.

55. N.B.P.C.H., Part C, Rule 1. This should not be surprising in view of the priority of duty to the state expressed in this code in Part A, Rule 1.

56. See N.S.L.E.P.C.H., c. 7, Rules (e), (f); N.B.P.C.H., Part C, Rule 10; Ont. P.C.H., Rule 16, Commentary 2(c); Man. C.P.C., c. 6, Rule (d); c. 19, Commentary 6; Sask. C.P.C., c. VI, Rule (c); c. XIX, Commentary 6; Alta. C.P.C., c. 1, Rule 6; Commentary 6; c. 9, Rule 9; Commentary 9.1; B.C.P.C.H., c. 7, generally; c. 12, Rule 8(c).

57. See, e.g., Ont. P.C.H., Rule 4, Commentary 1, which deals with the free flow of communication between lawyer and client and the latter’s feelings of security. Qué. C.e.a., s. 3.01.03 speaks to the establishment of “mutual trust”.

58. See, e.g., Yuk. C.P.C., Part One, Rule 1.

59. C.B.A. Code, c. XV, Rule. See also, e.g., N.S.L.E.P.C.H., c. 18; Qué. C.e.a., Division IV; Ont. P.C.H., Rule 13.

60. C.B.A. Code, c. XVII, Rule. See also, e.g., N.S.L.E.P.C.H., c. 19; Ont. P.C.H., Rule 19.

61. See, e.g., C.B.A. Code, c. VII, Rule; Commentary 6; c. XIX, Commentary 1; N.B.P.C.H., Part F, Rule 12; Ont. P.C.H., Rule 17; Commentary 3.

62. See especially this text, Chapter 12, “The Lawyer And The Law Society”.

63. C.B.A. Code, c. XVI, Rule and Commentary 1. See also N.S.L.E.P.C.H., c. 13; N.B.P.C.H., Part D, Rule 4; Qué. C.e.a., s. 4.03.03; Ont. P.C.H., Rule 14; Commentary 1; Man. C.P.C., c. 16; Sask. C.P.C., c. XVI; Alta. C.P.C., c. 4; B.C.P.C.H., c. 1, Canon 4; c. 11; Yuk. C.P.C., Part Two.

64. C.B.A. Code, c. XVI, Commentary 4. See also Ont. P.C.H., Rule 14, Commentary 4; Man. C.P.C., c. 16, Commentary 4; Sask. C.P.C., c. XVI, Commentary 4; Alta. C.P.C., c. 4, Rule 3; Commentary 3; B.C.P.C.H., c. 1, Canon 4(3); Yuk. C.P.C., Part Two, Rule 5.

65. See, e.g., B.C.P.C.H., c. 11, Rule 7, which commences: “A lawyer must (a) not give an undertaking that cannot be fulfilled, (b) fulfil every undertaking given, and (c) scrupulously honour any trust condition once accepted.” See also N.S.L.E.P.C.H., c. 13, Commentaries 13.6 -13.9; N.B.P.C.H., Part D, Rule 5; Ont. P.C.H., Rule 14, Commentary 6; Man. C.P.C., c. 16, Commentary 7; Sask. C.P.C., c. XVI, Commentary 10; Alta. C.P.C., c. 4, Rule 10; Commentary 10; Yuk. C.P.C., Part Two, Rule 3. See also this text, Chapter 9, “The Lawyer And Colleagues”, para. [37] et seq., infra.

66. N.B.P.C.H., Part D, Rule 5.

67. See, e.g., Yuk. C.P.C., Part Two, Rule 7: “When a lawyer who has been on salary to a firm leaves that firm, he or she shall not attempt to take any of the firm’s clients.” See also C.B.A. Code, c. XVI, Commentary 11.

68. See, e.g., David Lemmings, Gentlemen and Barristers, subtitled The Inns of Court and the English Bar 1680-1730 (Oxford: Clarendon Press, 1990).

69. See B.C.P.C.H., c. 1, Canon 5, which has a particularly instructive approach in this matter. It reads in part:

“To oneself

. . . . .

(6) All lawyers should bear in mind that they can maintain the high traditions of the profession by steadfastly adhering to the time-honoured virtues of probity, integrity, honesty and dig nity.”

70. Raymond A. Belliotti, Values in the Courtroom: Two Kinds of Judicial Systems, in Westminster Institute Rev., Vol. 1, No. 3 (London, Ontario: October, 1981), p. 4.

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This entry was last updated: February 14, 2017