Class notes
Globalization and Professional Ethics - Class Notes
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- Université De Sherbrooke (UdeS )
The class notes for Globalization and Professional Ethics with Prof. David Blaikie of summer 2021.
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Class 1Conceptions of Professionalism
What is a profession: A profession characterises of a group of individuals, who have
special training, special knowledge, in a certain area, and who are governed by a code of
conduct/ethics. Most professions are government regulated (doctors, accountants, etc.),
but lawyers are self-regulated through legislation (e.g., Law Society Act).
The Law Society has the power to investigate on lawyers – tries to maintain the
standards of the profession.
Profession ethics is about standards – ethics deal with obligations, with what constraints
lawyers with respect to their behaviour. A lawyer’s own moral code comes into play
when a lawyer makes decisions.
There are 4 sources to help us determine what constitutes moral conduct (to determine
whether conduct is ethical): 1) caselaw and legislation, 2) rules of professional conduct,
3) decisions of the law society committee, and 4) principles or norms of lawyering
(personal or common practice).
E.g. of caselaw: the law of negligence sets out for lawyers to act reasonably; the
law of contract has a role to play if there is a dispute pertaining the retainer
between a lawyer and a client; fiduciary duty sets out for lawyers to put forward
the interests of their clients; etc.
The primary sources regulating lawyers are codes of conduct such as the Model
Code of Professional Conduct. Every province has its own code. If a lawyer does
not comply with the code, the lawyer is vulnerable to sanctions.
Constance Backhouse, Gender and Race in the Construction of “Legal Professionalism”:
Historical Perspectives
There are connections between professionalism, power and exclusion. (p. 1)
“Lawyers have resorted to ideas of ‘professionalism’ to exercise power and
exclusion based on gender, race, class and religion.” (p. 2) “The very concept of
‘professionalism’ has been inextricably linked historically to masculinity,
whiteness, class privilege, and Protestantism.” (p. 3)
“Professional norms of civility and collegiality were used here to demarcate,
bolster and protect the masculine judicial circle. These ethical norms, so touted in
professional rhetoric, were not used to extend collegial community to the first
woman as an equal, but to isolate and exclude her. The treatment underscored that
the judiciary was, first and foremost, masculine, and that the introduction of a
female component on the bench was viewed as highly intrusive and
inappropriate.” (p. 14-15)
“The widespread tolerance of [discriminatory, sexists attacks from white male
judges] within professional circles underscores the fact that concepts such as
professionalism, civility, community and collegiality do not extend to women
judges perceived as feminist.” (p. 18)
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, “Why does it matter that the norms of the legal profession have historically been
framed around deeply entrenched notions of masculinity, white supremacy, and
class privilege? […] The homogeneous nature of the profession and its resistance
to diversification in the name of preserving professionalism have serious
implications for the services that lawyers offer to the public, the arguments that
lawyers make in courtrooms, and the decisions that are rendered by judges.” (p.
21)
“The history of the legal profession illustrates that concepts such as
professionalism, civility, community, and collegiality have been imbued with
discriminatory intent and practice. These are, indeed, ideas that have been pressed
into service to allow the most privileged of lawyers and judges to exercise power
and promulgate exclusion based on gender, race, class and religion. […]
Certainly, I would argue that some of these concepts are irretrievably
misconceived. […] I think we might move forward from our history of exclusion
more quickly if we were to focus upon different ideals, such as anti-racism,
gender equality, respect for Aboriginality, religious tolerance, reduction in wealth
disparity, and social justice.” (p. 25-26)
- The profession has been characterized by exclusion. The legal profession used to
be the exclusive domain of white men. Failures of the profession. Laskin did not
live up to his own ideals. What are some of the blind spots that we have now and
how can we correct them?
- Last paragraph. Are we going about reform in the wrong way? What about
discrimination and professionalism.
Trevor C.W. Farrow, “Sustainable Professionalism”
“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?” (p. 62)
The dominant view of zealous advocacy in its purest form is no longer viable.
o The dominant view is to defend the client: to save that client by all means
and expedients, and at all hazards and costs to other persons, and, among
them, to himself, is his first and only duty; and in performing this duty he
must not regard the alarm, the torments, the destruction which he may
bring upon others.
o Dominant view: the client decides what is moral. You do whatever you
want your client to do, as long as it is legal. The dominant view is an
extreme.
“The dominant model of lawyering struggles to make sense of legislative dictates
that put ‘duties’ on professional bodies to act in the ‘public interest”, ‘to maintain
and advance the cause of justice and the rule of law’, and ‘to act so as to facilitate
access to justice’.” (p. 70-71)
The other extreme – alternative models of professionalism – is to take into
account other interests: public interests, etc. The extreme view of this form is
such:
o “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
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, ‘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.” (p. 73)
“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.” (p. 71)
Sustainable approach: “A lens of sustainability provides a powerful symbol
around which diverse interests can converge, encompasses conflicting agendas,
promises to generate continuing debate and controversy, and is open to some
normative notion of rightfulness in the eyes of a person or community. Also
important is the consideration of both current and future interests.” (p. 86)
o “By moving beyond the centrality of the client’s interest as championed
by the dominant model, instantly we open ourselves up to competing and
potentially irreconcilable interests. This theory of sustainable
professionalism takes seriously the complex and pluralistic landscapes of
lawyers, clients, and the public. But in order to have a chance of buy-in
from those broad-based stakeholders, we need to live in the world of those
complexities, not in a world of fictional simplicity. As Backhouse reminds
us, doing otherwise simply perpetuates exclusion. Such exclusion, in turn,
fails to develop a professionalism that is sustainable on any calculus. We
also need to live in a world that is not afraid of those complexities.” (p.
97)
“For a theory of professionalism to be sustainable for the diverse communities
that practise law, it must speak in terms that honour that diversity, not in terms
that marginalize it.
[The profession] should be more of a mirror of society—and the society
we’ve become—if it is to have a truer perception of the public interest and
a more self- conscious awareness of its role and responsibility in the
creation of our new citizenry.” (p. 91)
Rt. Hon. David Johnston, The Legal Profession in a Smart and Caring Nation: A Vision
for 2017 (address delivered at the CBA Canadian Legal Conference, Halifax, August
2011)
“Law without the pursuit of justice is just a statement of words.”
“How do we craft a new definition of the lawyer as professional?”
“How do we seek the good? Through our commitment to professionalism which
is focused on serving Canadians and on continuous innovation in the law and its
administration.”
“There are three principal elements to any profession’s social contract. First, the
profession is characterized by specialized knowledge that is taught formally and
obtained by experience and under supervision. Second, the State gives it a right to
have a monopoly and to control entry and exit standards and competence and, to
some degree, fees. Third, it has a responsibility to society to serve beyond the
needs of specific clients.”
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, “Can we craft a new definition of the legal professional? To answer [this
question], let me suggest six key relationships that may help us in our search. […]
Here are the six: as lawyers, we must attend to our relationships with justice, trust,
education, social need, the firm and public service.”
o The lawyer and justice:
“To understand whether or not a specific law is just, you must know that
law well. You must know its history, its reason for being, whether the
circumstances of its application have changed, whether its interpretation
has altered and, if need be, what you would do to fix it. And then, to
ensure that you measure the law against an appropriate standard, you must
have a well- developed sense of justice.”
“As the individuals entrusted to preside over our courts, judges have a
responsibility to ensure justice is served in all its forms, not solely when it
comes to delivering judgments. We in the legal community have a
responsibility to take the lead in reforming the court system for the public
good; remember our oath to ‘improve the administration of justice’.
Justice delayed is justice denied.”
o The lawyer and trust:
“At the micro level, trust is determined by how fairly, effectively and
efficiently the individual lawyer serves his or her client, including the
terms of payment.”
“At the macro level, trust requires each of us to have an abiding concern
for how we are regarded by the public, our partners in our social contact,
and how we cultivate our unique professional responsibilities towards the
public good.”
o “The third key relationship is between the lawyer and education, both at
the entry level and throughout a professional lifetime.”
“Let me focus only on law school. We have allowed too great a divide to
develop between academia and the profession.”
o Lawyer and social need:
“For many today, the law is not accessible. […] Move the industry
standard of pro bono work, including cases, teaching and law reform, from
the current rate of less than 3% to 10%.”
o Lawyer and the firm:
“Our first obligation is to ensure that the firm allows for a reasonable
work/life balance.”
Stephen T. Goudge, Guiding Lawyers to Be the Best They Can Be: The Fundamental
Ideals of the Legal Profession in Why Good Lawyers Matter – fundamental ideals of the
legal profession
What is it that makes the practice of law a profession? Lawyers have special
learning + knowledge = asked to perform essential services to individual and to
the collective welfare. (p. 195)
A more modern conception of lawyering (as opposed to the dominant view where
an advocate knows but one person: her client) makes room for the pursuit of
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