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Legal Ease: Heard the one about the ethical lawyer?

The image most people have of a lawyer is a person in a grey or dark suit, looking solemn and carrying a briefcase. Lawyer stories, jokes, and cartoons abound.

Many of us have seen the cartoon where a restaurant customer says to the waiter: “I can’t order until my attorney has finished studying the menu.” Or the one where several lawyers are at a restaurant and, as they intend to share various items on the menu, they are shown as negotiating a pre-victual agreement.

Then there’s the joke about St. Peter personally escorting a recently deceased attorney to the head of the line. When the lawyer asks why he is being granted such special treatment, St. Peter tells him that according to his billing records he must be 193 years old.

There are those who make fun of lawyers and those who complain about their billing practices, lack of or miscommunication, incomprehensible legal terminology, etc. But for every complaint there are hundreds of lawyers who practice diligently and act in the best interest of their clients.

The truth is that lawyers are very strictly governed by their professional association, the Quebec Bar Association. This body requires that lawyers update their knowledge by taking 30 hours of courses over every two-year period. It oversees their trust accounts and routinely inspects their offices, files and ledgers. It also obliges them to follow a strict code of ethics that governs the relationship between lawyer and client, between lawyers themselves and between lawyers and the justice system as a whole.

A section of the code relates to the general responsibilities and duties of the attorney toward the public. It stipulates that an advocate shall act with dignity, integrity, honour, respect, moderation and courtesy and uphold respect for the law. It is the lawyer’s obligation to serve justice. He must avoid any procedure undertaken solely for purpose of delay and co-operate with other advocates to ensure the proper administration of justice.

Toward clients, the lawyer owes a duty of skill as well as obligations of loyalty, integrity, independence, impartiality, diligence and prudence. He must seek to establish a relationship of mutual trust and he must act with integrity.

There are clients who will ask their attorney to mask the truth. But the code stipulates that a lawyer must not lead or attempt to lead the court into error or, by illegal means, create doubt in favour of the client. It also states that a lawyer must not act in such a manner as to lead the opposite party into error. Yet a client will sometimes ask his lawyer to do just that and when the lawyer refuses to do so will complain that his lawyer is not acting in his best interest.

Another client request, especially in cases where there is a lot of personal animosity, is that the lawyer write numerous letters, make multiple phone calls and even take extra legal proceedings to annoy the opposite party. But the code provides that an advocate shall avoid performing or multiplying professional acts without sufficient reason.

The advocate shall advise the client that the requests are unacceptable and warn that he’ll withdraw from the file. If the client persists, he should cease representing the client.

The Ethics Code stipulates that, the advocate must display reasonable availability and diligence and that he must provide the client with any explanation necessary so the client understands and can evaluate the services. He must safeguard his professional independence and must not let his professional judgment be subject to pressure exerted on him by anyone.

There is a whole section in the code devoted to the determination and payment of fees. It specifies that the lawyer must charge and accept fair and reasonable fees and then defines these as being those that are warranted by the circumstances and correspond to the professional services rendered.

It goes on to specify exactly what factors must be taken into account in determining fees. These are listed as experience, the time devoted to the matter, the difficulty of the question involved, the importance of the matter, the responsibility assumed, the performance of unusual professional services or professional services requiring exceptional competence or celerity, and the result obtained.

The lawyer’s ethics code also defines acts that are considered derogatory to the dignity of the profession. There are many, including introducing a judicial demand, assuming a defence, delaying a trial or taking any other measure on the client’s behalf when the lawyer knows or when it is evident that such action is only intended to harm another person or to adopt an attitude contrary to the requirements of good faith.

David Olive in his book White Knights and Poison Pills defines a lawyer as “a specialist who renders legal that which the corporation (client) has already done.” This may be true on occasion, but we must also try to assure that legality is maintained with what is to be done.

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