Alice Woolley

The Problem of Disagreement in Legal Ethics Theory

Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers and the legal profession respond to ethical issues. This creates a problem of disagreement: the problem created by the divergent but exclusive claims made by different ethical theories at the point when those theories are to be translated into action. This paper considers how, given the problem of disagreement, legal ethics theories can have any impact on individual ethical decision-making or public policy. Specifically, it considers how theories can have any impact given a) that they fundamentally disagree; and b) what experimental psychology tells us about how people make ethical decisions in fact, and the nature of lawyer regulation.

Legitimating Public Policy

This article critiques the failure to adopt and enforce procedural norms in Canadian public policy making and suggests that the failure of legislatures and courts to require appropriate procedure prior to the elaboration and implementation of regulatory policy undermines the democratic and substantive legitimacy of that policy. It supports this position through analysis of current approaches to policy making in Canada and the United States, through application of theories of deliberative democracy to policy making and, ultimately, through consideration of what appropriate procedures for policy making should look like.

Context, Meaning and Morality in the Life of the Lawyer

Legal ethics theory focuses on the moral problem of lawyers pursuing morally suspect (but lawful) ends and using morally suspect (but lawful) means. It considers possible justifications for lawyers’ conduct arising from moral or political philosophy, and how those justifications may require shifts in the lawyer’s role. This paper argues that legal ethics theory needs to expand its focus to consider other ethical aspects of the lawyer’s role and, in particular, the extent to which being a lawyer can complicate, or contribute to, the accomplishment of a meaningful life. Meaning — defined by Susan Wolf as ‘loving something (or a number of things) worthy of love, and being able to engage with it (or them) in a positive way’ — will be affected in positive and negative ways by the moral dimensions of the lawyer’s role, but also by broader aspects of legal practice. The paper further argues that legal ethics theory needs to be more sensitive to contextual variations in legal practice. The ethical challenges and opportunities of legal practice, both its meaning and its morality, are contextually specific in ways legal ethics theory has not sufficiently accounted for. The paper sets out how meaning and context can be included in analysis of the ethics of a lawyer’s life.

The lawyer as fiduciary: Defining private law duties in public law relations

No one doubts that lawyers have fiduciary duties. Yet the justification for and scope of those duties is surprisingly unclear. Case law grounds fiduciary duties in the fiduciary’s exercise of discretionary authority. But discretionary authority is only an occasional – and sometimes ethically problematic – aspect of the lawyer’s role, not its defining feature. Further, case law has been neither clear nor consistent in defining the specific obligations that attach to the lawyer’s duty of fiduciary loyalty. Academic literature on fiduciary duties provides only a partial and somewhat unsatisfactory explanation for the lawyer’s fiduciary status when viewed in light of the normative foundations of the lawyer’s role and case law. Academic literature on the lawyer’s role is, however, also unsatisfactory insofar as, while it explains the lawyer’s duty of loyalty, it does not provide any means for analysing how breaches of that duty ought to be categorized in private law. The article attempts to reduce the confusion over the meaning and extent of the lawyer’s fiduciary obligations. It argues that the content of the lawyer’s fiduciary duties should be informed by the normative structure of fiduciary obligations and by the normative structure of the lawyer–client relationship. The lawyer–client relationship operates at the intersection of private obligation and public duty, and the scope and force of the lawyer’s fiduciary duties reflect that intersection. When understood in this way, the principle underlying the lawyer’s fiduciary status continues to emphasize discretion. It focuses, however, not on the lawyer’s exercise of discretion but rather on the lawyer’s provision of the advice and advocacy necessary for the client’s exercise of discretion. Analysed in light of these founding principles, lawyers ought to be held liable for fiduciary breach in three circumstances: (1) where they violate obligations to clients as a consequence of a conflict of interest or duty; (2) where they undercut the very nature of the representation they undertook to provide; and (3) where, through failing to provide information or providing the client with misinformation, they undermine the client’s ability to make decisions.

Equality Rights, Freedom of Religion and the Training of Canadian Lawyers

Should lawyers be trained at law schools that effectively exclude LGBTQ applicants? In Canada prior to 2013, the universally secular and public system of legal education meant this issue never arose. But in 2013 Trinity Western University (TWU), which requires its students to promise to refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman,” received approval to open a law school. The Canadian legal profession has divided on the question of whether this requirement ought to preclude TWU graduates from being admitted to the profession. This comment reviews the response of the profession to TWU to date and suggests the significant challenges TWU’s covenant presents for equality rights and religious freedoms, for inter-provincial cooperation in lawyer regulation, and for the proper scope of lawyer regulation.

The Problem of Guilt

the criminal defence lawyer presents a conundrum. in the popular imagination she represents the strength and virtue of lawyers (Atticus finch from To Kill a Mockingbird) but also the capacity of lawyers to lie and manipulate the system to protect wrongdoers (oJ Simpson’s legal team). likewise in theoretical conceptions of the lawyer’s role. the criminal defence lawyer presents the paradigmatic justification for what lawyers do—defending the rule of law; protecting individual autonomy and ensuring respect for human dignity—yet equally encapsulates the wrongs that the lawyer’s role requires—concealing and manipulating the truth in service of doubtful ends—wrongs that any theoretical conception struggles to justify. ferdinand von Schirach is a criminal defence lawyer practising in berlin and representing the usual range of criminal accused, from the mundane to the notable, including former politburo member günter Schabowski and east german spy Norbert Juretzko. he also writes fiction, and his two volumes of short stories, Crime and Guilt, provide an especially thoughtful and thought provoking basis for considering the moral virtues and challenges of the criminal defence lawyer’s role. the stories additionally raise questions about the ability of any theoretical explanation to illuminate the morality of the lawyer’s role, suggesting that while theory may explain aspects of a practice, it may do so in part by disregarding the truth and complexity of that practice as it actually exists.

Judicial Regulation of the Legal Profession: Correspondent's Report from Canada

The substance and import of the Supreme Courts decisions R v Cunningham and Fullowka v Pinkertons of Canada Ltd for the ethical and legal obligations of Canadian lawyers are discussed. The challenges and opportunities that the intervention of the Court into the regulation of the legal profession present are highlighted.

Correspondent's Report from Canada

The threefold impetus behind the decision of the Federation of Law Societies in Canda to set up a Task Force to consider whether to impose national standards on legal education in Canada is discussed. The positive and negative aspects of the recommendations put forth by the Task Force are highlighted.