Summary
Summary NCA Canadian Professional Responsibility Exam Notes
Self-made Canadian Professional Responsibility Exam Notes. Covers majority cases, I passed the first time using these notes and the model code. 78 pages in total.
[Show more]
Connected book
Book Title:
Author(s):
- Edition:
- ISBN:
- Edition:
Content preview
A. The Legal Profession: Lawyers in Society and a Society of Lawyers-Part A considers two fundamental and recurring questions
1) what is the legal profession and
2) what is the role of the lawyer in the profession
-students to think about the legal profession and its relationship with other commercial endeavors in society; and
the role of the lawyer – specifically including the relevance of personal integrity, morality, honor, etc – vis-à-vis
clients, the profession and the public
1. Professions and Professionalism: The profession of Law and Law as a Profession
Trevor C Farrow, “Sustainable Professionalism”
-challenges traditional visions of lawyering by building on current alternatives narratives that are politically,
ethically, economically, and professionally sustainable
I. Legal Ethics and professionalism
-the concept of ethics invites notions of good and bad as values in themselves, from either the perspective of
semantics or of justification.
-these perspectives of ethical theory are not immediately interested in the application of ethical thinking
to specific contexts of human action
-GE Moore: the general enquiry into what is good – and an evaluation of the human action that is derivative
from that underlying value
-If we then think of the legal profession as the (self-regulated) community in which we are ultimately
contemplating (and judging) the ethics of a lawyer’s action, the legal profession must exist not only for the sake
of practicing law, but for the sake of practicing it well. Any notion of legal ethics must therefore contemplate an
understanding of lawyering that is fully engaged with a vision of what amounts to practicing well.
-Rob Atkinson’s “fundamental question of professional ethics”: “Should a professional always do all that the law
allows, or should the professional recognize other constraints, particularly concerns for the welfare of third
parties?” According to Atkinson, this question “divides scholars of legal ethics ... into two schools: those who
recognize constraints other than law’s outer limit, and those who do not.”
II. Dominant Model of Professionalism
-One approach to Atkinson’s “fundamental question” is provided by the traditional and still dominant view of
the lawyer’s role. Familiar labels such as “zealous advocate,” “amoral technician,” and “neutral partisan” are
used to describe this hegemonic model of lawyering. In a nutshell, the basic defining elements of this narrative
are that the lawyer’s job is to advance zealously the client’s cause with all legal means; to be personally neutral
vis-à-vis the result of the client’s cause; and to leave the ultimate ethical, personal, economic, and social bases
for the decision to proceed in the hands of the client.
-According to this view, lawyers should reject non-legal factors such as morality, popularity, religion, power,
custom, etc. and be guided only by what the law allows, thereby viewing themselves purely as legal agents for
their clients.
A. Principle
-principle behind the dominant principle – is one that champions a clients freedom to arrange her affairs within
the bounds of the law
-Atkinson, “society recognizes individual autonomy as a good in the highest order ... and carves out a
sphere in which individuals can exercise that autonomy without interference. By helping lay folk ... the
lawyer is accomplishing a moral and social, not just professional, good.”
-lawyers job therefore is to facilitate the clients exercise of the moral autonomy as authorized by the law
-justification for the dominant narrative also come from the fact that, clients deserve the best defense and
representation possible, especially when they are up against the power of the state and individual liberty is
involved
1
,-Lon Fuller, the purpose of a rule of professional conduct that makes it proper to defend a criminal, including
one whom the lawyer knows to be guilty, “is to preserve the integrity of society itself. It aims at keeping sound
and wholesome the procedures by which society visits its condemnation on an erring member.”
B. Policy
-CBA Code provides “the lawyer must ... represent the client resolutely, honourably and within the limits of the
law”
-policy provisions recognize the importance of the lawyer’s ability to raise arguments that, while legal may not
be popular
-dominant model when lawyer has personal difficulties with position of the client, for lawyers to suppress his or
her own views in favour of those of the client and to refrain from expressing the lawyers personal opinions on
the merits of a clients case
C. Practice
-the dominant model is not only the dominant model in theory, it also continues to be the dominant model in
practice.
D. Literature, Popular Culture, and Media
-dominant message is delivered and perpetuated both inside and outside of the profession
E. Hegemony Light
-Most versions of the dominant model, however, do not focus solely on the zealous representation of the client.
-First, lawyers—no matter how zealous—cannot engage in illegal activity by, for example, concealing evidence
or obstructing justice. This view is consistent with typical code of conduct provisions requiring lawyers to act
“within the limits of the law.”
-Second, most dominant trend theorists typically recognize and make space for a lawyer’s obligations to the
court.
- For example, according to Florida State Judge David A. Demers of the Sixth Judicial Circuit for St.
Petersburg, the “best definition” of professionalism balances “two primary duties: (1) zealous
representation ... and (2) service as an officer of the court.”
-What counts as service “to the court” is a contested discussion. One less controversial version of this service
would be the relatively narrow and negative obligations not to, for example, “deceive a tribunal,” “misstate the
contents of a document [or] the testimony of a witness,” or “dissuade a witness from giving evidence.” However,
given that the privilege of self-regulation has come with the responsibility of acting in the public interest, acting
as an officer of the court has been seen by some to include more expansive notions of lawyering responsibilities
that potentially are required by the public interest. These more expansive notions are captured in code provisions
that require lawyers to temper their zeal and act not only “within the limits of the law” but also “honourably” and
by discharging “all responsibilities to ... the public
-**To address these ethical challenges and duties, an alternative model has developed. This alternative model is
the second “school” contemplated by Atkinson in his discussion of the “fundamental question of professional
ethics.
III. Alternative Models of Professionalism
A. Principle
-The starting point for this discussion really comes from the foundational premise that lawyers, as self-regulated
professionals, have been given the opportunity and responsibility to act not just in the interests of their clients
but, more fundamentally, in furtherance of the “public interest.”
-the advocate must take into consideration a number of other interests including those of other clients, himself or
herself, opposing lawyers, the court, and other sectors of society included in the overall administration of justice
-Atkinson’s question, essentially requires lawyers to accept personal responsibility for the moral consequences
of their professional actions
2
,-in the “extreme” form, the lawyer should “avoid doing harm” by refusing to act if the lawyer thinks that the
outcome of “winning” would be on balance a “bad thing” or “socially unfortunate,” in spite of the fact that “the
client will pay” and that the lawyer “wouldn’t be doing anything that came close to violating the canons of
professional ethics.”
-various accounts take seriously the lawyer’s personal morality or sense of justice in the spirit of balancing, and
indeed privileging, the interests of the public over those of the client, particularly when those interests collide.
Beyond that, however, these views do not mandate one sense of what counts as morality. What is encouraged is
not a shared sense of morality that provides “bright-line answers,” but rather “ethically reflective analysis and
commitments
-***even if we thought that the dominant model provided a viable vision of the lawyer’s role, that vision can
only, in its best light, amount to a fiction. Because lawyering is a human exercise, it will always be accomplished
through the lens of the human experience. According to Mark Orkin, “A lawyer cannot, more than any other
man, keep his personal conscience and his professional conscience in separate pockets ... it cannot be seriously
denied that every lawyer is, in some measure, the keeper of his client’s conscience.”
-If lawyers fail to acknowledge the morality that “holds sway” over their professional deliberation, that morality
is “forced into the background, where it is not susceptible to exploration by the client.”
-**the dominant model of lawyering is a fiction and is “not a harmless fiction, for it facilitates the tendency of
clients to equate legality with permissibility
-even if lawyers were able to compartmentalize their moral deliberation in the spirit of robust role-differentiated
behaviour, by so doing, they impoverish the possibilities of giving legally and ethically sound advice to their
clients and run the risk of paying a significant personal and social price.
-According to Wasserstrom, the “nature of professions ... makes the role of professional a difficult one to shed ...
In important respects, one’s professional role becomes and is one’s dominant role ... This is at a minimum a
heavy price to pay for the professions as we know them in our culture, and especially so for lawyers.”
B. Policy
-CBA’s Code, which provides that “standards of professional ethics form the backdrop for everything lawyers
do.”
-**primary concern is the protection of the public interest
-There are many different code statements that support this loose notion of acting in the “public interest.” For
example, the CBA’s Code, in its provisions governing the lawyer’s relationship to the “administration of
justice,” provides that “the lawyer should not hesitate to speak out against an injustice.” In Ontario, the LSUC’s
Rules dictate that, when acting as an advocate, “a lawyer shall not ... knowingly assist or permit the client to do
anything that the lawyer considers to be ... dishonorable... ” Similar international examples also obtain. For
example, according to the New York Lawyer’s Code of Professional Responsibility a lawyer “should be
temperate and dignified, and refrain from all illegal and morally reprehensible conduct.”
-As well, the Basic Rules on the Duties of Practicing Attorneys (Basic Rules) of the Japan Federation of Bar
Associations (JFBA) provide that the “mission of an attorney is to protect fundamental human rights and realize
social justice.”
-There are numerous policy-based statements recognizing the need for individual deliberation by lawyers. In
Canada, for example, the Law Society of Alberta acknowledges that its professional “rules and regulations ...
cannot exhaustively cover all situations that may confront a lawyer, who may find it necessary to also consider
legislation relating to lawyers, other legislation, or general moral principles in determining an appropriate course
of action.” In Ontario, the LSUC regards the notion of a “competent lawyer” as someone “who has and applies
relevant skills, attributes, and values... .”
-**By separating what amounts to “legal” and “ethical,” clearly the LSUC contemplates professionalism as an
advisory exercise that involves more than simply the consideration of client conduct that is “legal.”
-although difficult to reconcile with other seemingly conflicting code provisions that are traditionally relied upon
by proponents of the dominant model, the code provisions, discussed above, open up alternative ways of
lawyering that do make meaningful room for the relevance of a lawyer’s “moral principles” and “conscience,”
all of which take seriously interests beyond those of the client.
3
, C. Practice
-David Tanovich has argued, “over the last fifteen years, we have been engaged in an ongoing process of role
morality reconstruction. Under this reconstructed institutional role, an ethic of client-centered zealous advocacy
has slowly begun to be replaced with a justice-seeking ethic that seeks to give effect to law’s ambition.” Starting
from their first days in law school, students are making more informed choices about what law schools to attend,
what courses to take, and what areas of law to pursue. Lawyers are actively making decisions about which
clients to take, how to represent those clients, and how to withdraw their services when a client relationship
breaks down (in terms of trust, respect, et cetera)
D. Competing Professionalisms
-the principles and policies that support the alternative model fit more naturally with the modern realities of
lawyering. They tend to support Tanovich’s observations regarding the shift toward a “justice-seeking ethic”
over the past fifteen years.
- Moreover, they fit more naturally with an early version of the CBA’s guiding ethics principles on a lawyer’s
duty: “to promote the interests of the State, serve the cause of justice, maintain the authority and dignity of the
Courts, be faithful to his clients, candid and courteous in his intercourse with his fellows and true to himself.”
This vision nicely fits with the aspirations of my students when asked if they would prefer a vision of
professionalism that allowed for the opportunity to maintain a meaningful sense and space for “self.”
-if Tanovich is correct in that the “zealous advocacy” model is slowly being replaced by a “justice-seeking
ethic,” we are clearly a long way from shedding the “names, battle slogans, and costumes” of the dominant
ideology.
-According to David Luban, one of the most vocal supporters of an alternative vision of lawyering, although
those who subscribe to an alternative vision of professionalism represent “a substantial minority of the legal
profession, it is a minority view nonetheless.” So why do we continue to be so powerfully influenced by the
dominant trend of professionalism?
-Several possible answers obtain.
1) First, there is the argument of tradition. There is no doubt that the dominant model enjoys the weight
and sway of a long history and tradition. One only needs to look as far as the earlier discussion of Lord
Brougham’s vision of a lawyer to find support for this tradition-based argument. However, as is typically
the case with tradition- (or precedent-) based arguments, without some other compelling reason, these
arguments tend to be nothing more than self-serving tautologies; the model is persuasive, because the
model has been persuasive for a long time. Without something more, this line of argument fails to
account for the model’s continued dominance, particularly in the face of viable alternative options.
2) More compelling. Given its autonomy-seeking focus and its one-size-fits-all foundation (one of its
“dangerously attractive” features), there is no need for uncomfortable ethical deliberation on the part of
individual lawyers. The dominant model champions its amoral ability to be applied to all lawyers and all
lawyering situations. It thereby criticizes the alternative models for overplaying the relevance or
supremacy of the lawyer’s individual moral choices or preferences (that risk usurping the ethical
autonomy of the lawyer’s client) while underplaying the institutional value of the lawyer in the adversary
system.
-However, the problem with these arguments and justifications for the dominant model’s
continued prominence is that, as was demonstrated above, there is compelling principle, policy,
and practice-based evidence that in my view fatally challenges its assumptions and foundations.
3) the power politics and economics of the lawyering process. Law has increasingly become a
competitive business driven by complex needs of powerful clients. As Gavin MacKenzie comments,
“Lawyers practice in a market economy, and the highest bidders in such an economy are wealthy and
often powerful.”
-it allows lawyers to sidestep the messy business of moralizing and taking personal responsibility
for the deeds of their clients.
-MacKenzie comments, “there is no evidence that lawyers who act for the wealthy and powerful are any more or
less ethical than are those who act for the poor and powerless.”
4
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller InDhillon. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for CA$72.38. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
80461 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now