 Professors Bradley, Cotter, Welch, Rard, Thompson, Loomer, and Patel. This is a greatest hits lineup of the faculty of law with a Western University side note. We are with a question in for a treat. Welcome to the Schulich School of Law. We're delighted that you're able to join us this morning to be here while we co-host this year's FB Whitwire Memorial Lecture in Professional Responsibility and Legal Ethics with the Nova Scotia Barrister Society. I'm delighted that this lecture, named in honor of Ted Whitwire, a man who received his LOB here in 1962, is housed here at the school. First, the lecture honors a man who worked tirelessly to ensure that lawyers maintain the level of uncompromised professionalism. We are fittingly proud of his contributions to the legal academy, the university, and the profession. President Daley will say a little more about Ted Whitwire himself and his opening remarks. Second, this lecture reflects an ongoing relationship between the school and the Barrister Society. Speaking for the school, the relationship is one that enhances significantly the richness of our program in people and that informs daily our understanding of law, legal education, and the legal profession. Finally, let me say that I'm proud to have a lecture that focuses on professional responsibility and legal ethics here at the faculty. We house the leading scholars in the country in this substantive topic with one side note. They house Stephen Patel at Western. And many of them are featured in today's session. Our students have had a required course on this topic for years and discussed issues of ethics and professionalism pervasively in their time here at the school. Let me turn the floor over to Richard Devlin to the panel. Thank you to the audience. Enjoy. Everyone for finding out this morning, members of the Bar, representatives of the Law Society, colleagues, and students. It's a snowy morning, so it's great that people are able to make it. And I hope Tim can get home today after the workshops. Today, we're trying something different. Normally, we have a guest speaker who comes in and gives a lecture or a presentation. We set up a panel this morning because we want to talk about some of the real worlds of legal ethics. There are a number of general principles underlying legal ethics. There's even a sort of a national code of conduct. But in the real world, the context of the lawyers are very different. The world of the family lawyer is very different from that of the corporate lawyer. The context of the tax lawyer is very different from that of the environmental lawyer or the government lawyer. So today, we have a number of people who are going to share some reflections and experiences of thinking about the issues around legal ethics. And so this morning, I'm going to pass it over to Tim Dealey, who's going to say a few words to set the context, and then open to the panel. I'm from Barister Society. And the society is really quite pleased to be here today. The relationship that Dean Brooks talked about between the society and the law school was a very long and very rich one, and one that we treasure as a regulator of the legal profession. But I'm also here, and I'm going to take a couple of minutes before we get into this discussion today that I'm very much looking forward to, even with our designated import from Western, to talk about the man who was the basis of the lecture series himself, Ted Wickwire. I may be the first president of a society that didn't actually know Mr. Wickwire, but though anybody who practices law in this province will know of him. And those of you who are going to begin your practice in this province will want to know something about Mr. Wickwire. He was educated in Halifax and received his Bachelor of Commerce degree in 1959 and his Bachelor of Law degree in 1962, both from Dallas. He was a remarkable athlete. He was a quarterback of the Dell football team. Was two years the male athlete of the year at this university. In his practice, he was both in corporate and commercial law with a special interest in property rights in his professional life. He was appointed Queen's Council in 1978 and his service to Dell Housing University included 13 years on the board of governors of the university. He was also a senior partner in the firm McGinnis Wilson Flynn Wickwire. And in 1977, he was appointed the first chairman of Nova Scotia Legal Aid Commission. This was a passion, one of two that have been identified in everything that I've read and spoken to people about with respect to Mr. Wickwire, that there should be universal access to legal aid. And he was one of those driving forces, if not the primary, in the creation of what we now take for granted as the Nova Scotia Legal Aid Commission. He worked tirelessly to ensure that Nova Scotia Barrister's lawyers maintained a level of uncompromising professionalism, which was the other focus of his work, both professionally and in his volunteer work with the society. He served as chairman of the Nova Scotia Barrister Society Legal Ethics Committee. And he is the leader of that group that brought into place the Legal Ethics Handbook that most of us in the practice of law have on a shelf, a very thin, a very dense little book that began the discussion and the evolution to what we now have as the model code of conduct today. His service to the legal profession culminated after two, three-year terms on bar counsel. With his election as president of the Nova Scotia Barrister Society in June 1990, and in fact, those of us who remember those days will recall the Walter Goodfellow who was president for a week when he was appointed to the bench, and Ted Whitwire was quickly thrust into the role as president. So you don't get much shorter a time to learn the job than Ted had. But he stepped into it full bore and did a wonderful job. Unfortunately, he held that position until the time of his death on March 22, 1991. So he didn't in fact get to complete his years as president. But he was a remarkable man. And before I complete, I just want to reflect on a piece that I read yesterday. And I think this says a great deal about him. It's worth reflecting on somebody alike this, who was so important to this practice in this province. On March 28, 1991, there was convened a special meeting of the Nova Scotia Barrister Society at courtroom number four of the law courts downtown. It was a pay-owner to Ted. And among the many speakers who spoke that day were two that I think are worth highlighting, but I could pick any number of them. The first was the then dean Innis Christi, who most of us who have gone through the school will have known personally or known of. And he said in part, I want to say without equivocation the context of the fire at the law school. I don't know how many of us remember, but this building actually went up in flames back in the 80s. The top level taken off and the building rebuilt. It was quite a shock to all of us in this community. I wasn't a lawyer at the time, but it certainly was a dramatic event. And Innis Christi talked about that in the context of Mr. Whitwire. His efforts to find hard support for the law school's effort at rebuilding. There was no single practitioner in this country who was more supportive in terms of the contribution that his law firm made to the rebuilding of the law school than Ted Whitwire. Person for person dollar for dollar, Ted Whitwire was there. He was the first person to come forward and encourage me to approach individual firms. This is the kind of debt that I've come to realize many people in many different contexts owe to Ted Whitwire. And certainly he came through in the context of this law school and this university. So that's a very real intangible way in which Mr. Whitwire's fingerprints are all over this building and this law school in a very intimate way. Finally, the comment at this event by my good friend Bruce McIntosh, former president of the Barister Society who practices law in Pictor County with me. He said in part, we should not permit ourselves the luxury of paying final respects. Ted has increased our debt to truth and our obligation to duty. If we are to give him his due, that message must be ongoing. Our respect for the leadership which he provided us must be reflected in our future actions as members of the bench, as members of the bar, and as participants in the legal system which is always in the fresh ideas and old fashioned principles. And I can think of no better way to recommend to you this lecture series to introduce it to you and to honor the memory of the man whose name is borne by this lecture series. So with those comments in mind about Ted Whitwire and those comments about the relationship with the Barister Society and the law school, I welcome you here today. I look forward to hearing from our speakers and now I call upon Professor Sarah Bradley to begin the discussion. Thank you so much. Actually, this was a weird question. No, I'm not Sarah Bradley. She's going to go second. She's going to go second. But just let me say that the first Whitwire lecture was held, I was acting dean when the first Whitwire lecture was held in 1991. So I had the pleasure of attending the very first one and I've attended most of them since, but this is the first time that I've actually spoken of one. So I thank the organizers for asking me and I thank the Barister Society for sponsoring this lecture for all these many years. So I guess the reason I was asked to go first is because legal history, in a sense, embraces all of the topics that might be considered later on, I want to ask what the study of legal history can bring to a discussion of contemporary professional ethics. Like the fish that doesn't see the water that it's swimming in, we often take for granted a whole host of factors that shape our debates without even realizing that they're there. I've been studying the history of the Canadian legal profession for some time and it's helped me to understand how we've been influenced by both English and US models. Canadian legal profession really is a hybrid with some distinctive mutations of its own. So in order to do this, I need to talk a little bit about themes in the history of the American legal profession, the English legal profession, as well as our own, all in 12 minutes. So here we go. In England, the professional culture of baristers was traditionally based on a gentlemanly anti-commercial code of conduct that had everything to do with class and respectability. Three features of barister's lives helped to avoid many ethical conflicts. First, baristers did not handle other people's money. Solicitors did. So that's a big help of other people's money. Second, the cab rank rule that developed at the end of the 18th century provided that a barister could not refuse a brief, save in very exceptional circumstances. This meant, in theory, that a barister could not refuse a brief from a client with an unpopular cause, one that might have tainted the barister by association. And finally, baristers did not even meet with actual litigants, the instructing solicitor did. So baristers, in the words of legal historian Michael Burridge, ceded total economic independence to achieve status and distance, to achieve a kind of cut above of being solicitors. Now, the Iday feaks of baristers was to preserve their monopoly on pleading in the superior courts and their favorite position as judges in training. And they really had no interest in expanding their activities to do anything else. Their ethical rules were contained in what was called the code of etiquette. That's how it was known for a very long time. That was never written down and never taught, but simply absorbed by interact with other baristers in the ins and core and elsewhere. For most ethical problems in the English legal profession, there was really only one rule. What would a gentleman do? Now, Michael Burridge argues that the ideal of the barrister helped to shape the self-image and goals of the solicitorial profession, too, even though its members were much more involved in the world of commerce than baristers were. Solicitors did create the Incorporated Law Society in the 1820s as their professional governing body, and it did begin prosecuting solicitors for ethical failings, but really only for the most obvious things such as stealing clients' funds. The ILS did not have the power to compel membership, though. It was a voluntary body, and it was not interested in writing down any ethical code, either, because that would have admitted that its members were not already gentlemen. They would have said that they needed to be told what to do and what not to do, whereas a gentleman always knew instinctively what to do, so you never had to write anything down. Now, in the U.S., things developed quite differently because you had the union of the roles of the barrister and solicitor in the attorney who combines those roles. So that, along with the demise, the disappearance of the bar associations in the early 19th century, and the leveling of all barriers to entry, or virtually all barriers to entry, in the mid-19th century, created a much more individualistic, commercially oriented profession than had existed in England. By 1850 in the U.S., you do not have to serve an apprenticeship in most states to enter the bar. You don't have to go to law school because they're only just starting up, and there are no bar associations, even voluntary ones. So it's a very, very individualistically oriented profession. There's essentially no control on entry and no organization could foster any discussion of professional ethics. And even after the law schools begin to pick up steam in the latter half of the 19th century, they're not interested in teaching ethics at all. And I'm gonna open a little sidebar here about Christopher Columbus Langdell, first dean at Harvard Law School, who's associated with kind of modern professional legal education. Believe it or not, he invented three-hour hypothetical exams. I'm not making that up, he actually invented them, right? That's why we still have them. But the thing about Langdell and ethics is a very successful career in the New York bar on Wall Street, and he gave it up to go to academe because he couldn't stand the corruption anymore. Judiciary was corrupt, higher echelons of the bar were corrupt, everything from bribery, nepotism, you name it. He finally couldn't stand it anymore and he went to academe, but he did not wanna teach ethics. He wanted to purify the legal profession but he thought, if we make them really good technical lawyers, that will do it. A very strange way of thinking, to our way of thinking, but he didn't wanna teach ethics, even though he had this full bore exposure to the really corrupt nature of the legal profession at that time. Now, however, although there isn't any real body that could undertake to think about ethics or discuss ethics, American lawyers do begin to write down what they understand good ethical practice to be. Now, they don't agree, of course. There are two main writers in the 19th century, David Hoffman and George Sharswood. Hoffman takes more of an English, kind of gentlemanly style approach. Sharswood takes a more hard-nosed, practically oriented view, just to indicate what that might mean. David Hoffman said, you should never, if your client only has a limitation period to rely on as a defense, you should never advise them to plead it. No gentleman would ever plead a limitation period. So that was kind of his view. Whereas George Sharswood said, well fine, it's in the law, you can plead it, like don't worry about it. Now, even after state bar associations began to surface again in the late 19th century, they typically did not deal with ethical issues. That was left to the American Bar Association, which promulgated its first aspirational code in 1908. Now, of course, the ABA is a voluntary body, like the CBA, and in 1908 it represented only a small fraction of U.S. lawyers, maybe 10% of U.S. lawyers belong. But it has remained the main body that conducts an ethical discourse on behalf of U.S. lawyers, even if it has no direct power to enforce its code. Now, Canada, of course, followed the North American model of a unified legal profession, but in other respects, it remained much more influenced by English legal culture. Canadian lawyers tended to take English bearers just as their model, even though their mode of practice was much more like that of English solicitors, and in fact, even closer to that of American attorneys. So right there, you can see, we have this kind of hybrid profession, many, many English ideals, but kind of on the ground, things tend to be more American. And then we added a new element to the mix. The compulsory adherence of all lawyers to a statutory self-governing body. When the law side of Upper Canada was created by statute in 1797, it was unique in the Commonwealth world. There was nothing like it anywhere else. It slowly spread across Canada until by the 1870s it was a norm, such that when the new province of Manitoba was created in that year, there was really no thought given to any other way of organizing the legal profession. Now, as I said, in day-to-day practice, Canadian lawyers were much more like American lawyers. They were much more responsive to clients' needs than English solicitors, more commercially oriented, more open to innovation. In other words, they were much more driven by the market than by class considerations. This means their ethical challenges are similar to those in the US. Now, one might have thought that the self-governing bar societies would be the perfect vehicle for jump-starting a dialogue about ethics, but this didn't happen for a long time. In the early decade to the 20th century, there was more talk and more concern about ethics in public light generally, or the lack of it, but instead of one of the provincial bar societies taking the lead on this issue, it was the Canadian Bar Association that took the lead. It was only created in 1914 and actually took the creation of an ethics code as one of its first main tasks, which had promulgated in 1920, and interestingly, these were inspired by the ABA model of 1908 rather than anything from the English experience. When the CBA people were thinking about doing an ethics code, they did a kind of survey of England and Scotland, Ireland, and they said, well, what about this? Should we create an ethics code? And every single respondent in Britain and Ireland said, no, don't create an ethics code. It's a bad idea. Every single respondent said that. But still, this influence of the gentleman, the ideal, we shouldn't have to write it down. It has to be innate. So they didn't follow that advice. They went the American group. Now, this isn't to say that provincial bar societies did nothing about ethics. They did begin conducting disciplinary hearings for very obvious things, like stealing from clients, using contingency fees, and they disbarred lawyers after convictions for serious criminal offenses, but they didn't really engage in any larger discussion about professional ethics. Nor, according to Harry Arthur's, were they very active about policing breaches of the 1920s, CBA, Cannons of Ethics for a very long time, except in cases of obvious dishonesty. It wasn't really until the 60s and 70s that these larger discussions began to be conducted in earnest. One pattern does sort of leap out though as we look at these sort of prosecutions and who gets in trouble and who doesn't is that it's very obvious that minority lawyers get in trouble a lot. Really quite disproportionate to their numbers in the profession. A particularly tragic case is that of Norman Lickers, who was the only Aboriginal lawyer called the bar in Ontario between 1865 and 1966. So for a whole century, he's the only one who's called. He was called in 1938, had a very active career before being disbarred in 1950, apparently for a bungled mortgage transaction. We don't know that for sure though because the Law Society will not allow access to the discipline for pending development of a global policy on access to such files. But senior Winnipeg lawyers who actively conspired to pervert the course of justice during the trials of men charged with sedition after the Winnipeg general strike of 1919, they were lauded as heroes and never brought before any disciplinary body even though they actively packed juries to kind of skew the results of those trials. This theme of seemingly selective enforcement, it's a big and complex theme. I'm not saying it's quite as simple or stark as I've painted it here, but that theme of seemingly selective enforcement is still with us today and it poses many challenges to the Law Society's view. So with regard to how our hybrid heritage influences our ethical positions, I would say that Canadian lawyers are truly in between. In England, you have a professional culture that was historically strongly anti-commercial and oriented to respectability. They created a fairly robust set of ethical attitudes even if they resisted writing them down for a very long time. There was a lot that was internalized in the English League of Professions. In the US, a much more commercially driven and market oriented professional culture combined with weak governance meant that ethics was seen as more or less a personal choice. You like vanilla, I like chocolate. You behave this way, you face with this challenge, I behave that way. It's all the same, it doesn't really matter. So they didn't really develop this idea of an internalized professional code. Now Canada's professional culture was more commercially driven and market oriented than English. Perhaps not quite as much as the US, but it differed from the US in having relatively strong governance structures in the provincial bar societies. These have taken up ethical issues at various times, sometimes with the genuine intent of protecting the public, and other times seemingly for more public relations purposes. The Canadian legal profession possesses the theoretical capacity to make a strong commitment to professional ethics, part of every lawyer's life from call to retirement, but to date I think the will to exercise that capacity has often been lacking. So those are my remarks, thank you. And I will call on Sarah Bradley who will talk to us. All right, good morning. Thank you for that introduction Phillip and thank you for the introduction Tim. It's great to be here. It's always wonderful to see this room filled with students shoulder to shoulder with practitioners and members of the bar society, representatives of the bar society. It's a good thing for the school. It's a good thing for our student body. And I wanna thank Richard Devlin and Daryl Pink and the other organizers for inviting me to be here today. My topic is legal ethics in the business context. And this is a big topic. I've been given, I thought it was 15 minutes but then somebody said no it's actually 12 and then somebody else said well maybe nine. So I'm gonna try to introduce a couple of ideas and hit a couple of highlights that I see as being the challenges for legal ethics in the business law context. So we're all familiar with some of the high profile corporate frauds of recent years, recent decades. The big names, the Enron, the WorldCom, we have Tyco, Liveant, Hollinger, 3x. The list goes on and I'm sure you can all think of many more situations that have involved high profile corporate frauds and other types of wrongdoing. These are the headline grabbers. There's serious fraud, criminal activity, misappropriations and other, but these things and other kinds of wrongful acts go on on a smaller scale with depressing regularity. And the consequences of this type of activity are often in a sense invisible because they're economic in nature. But the reality is that these kind of economic harms have very real human and social consequences. The situations though are complex, but we're talking about pension funds that are decimated. Senior citizens whose retirement funds are erased, left in destitution, life savings that are lost, families that are left homeless, functioning active businesses destroyed, people out of work. The consequences for these individuals and the communities that they live in are very severe. And there's also the loss of millions, in some cases hundreds of millions of dollars drained from our economy and from our tax base. And when every case is different, of course, but when these cases are examined and each and every one is an interesting study in and of itself, it's usually the case that the principal wrongdoers, the ring leaders of these acts are the corporation's managers, directors, other people who are involved at a high level in the organization. But the reality is that most of these types of crimes and wrongdoings really could not be carried out without the imprimatur of a number of professional facilitators. Particularly the accountants and the lawyers. We see these professionals very rarely held to account. More so the accountants than the lawyers. But their advice is contributing and often the necessary pause of the outcomes that take place. And the type of involvement that these professionals usually have is sometimes active approval of the wrongdoin that's going on. Sometimes there's a passive acquiescence on the part of the professional. Sometimes there's a failure to make sensible inquiries or investigations in terms of the true purposes of the transactions that they are assisting with. Often we see accountants' feet held to the fire in these situations. The auditors who have a clear duty to the public are often held to account. But we rarely see lawyers implicated in these kind of wrongdoings. If we take the one case of Enron, the accounting firm of Arthur Anderson was destroyed by this company's crimes. But Vincent and Elkins, which was one of the many law firms in the affair, emerges virtually unscathed. And the reason for this is essentially that, well, it depends, right? We have, sorry, I'm not trying to get rid of that. With these two little words, we let ourselves off the hook with depressing regularity. We say these are complex situations. The involvement of these professionals, it's not simple, it's not straightforward. What exactly was the situation? What exactly happened? The facts are difficult to ascertain. Should the lawyer be held to account? Well, what did they really do? It all depends, it depends on the situation. And we have these subjective standards. We have, in my view, an antiquated adherence to concepts around client confidentiality that ultimately hold lawyers to a fairly undemanding ethical standard in these situations. And I wanna stress that in a lot of these situations, when you look at the facts, when you look at the scenarios, we're not talking about moral gray areas. Where the situation may have been morally good, but may have been morally bad, but it's hard to tell. I mean, these are situations where we are talking about a lawyer acquiescing or actively condoning or turning a blind eye to out and out dishonesty, right? Out and out misappropriation or crimes. And these cause profound harm in society. Is it possible that a low-level associate and engaged in one of these situations, drafting some sort of an agreement is innocent to its true purpose? Of course it is. But clearly senior advisors in these situations who bill tens of thousands, hundreds of thousands of dollars to these clients, have to be in a different situation. When people come here to law school, we train them to overcome their natural tendency towards morality-based judgments. Whatever moral bedrock of fundamental ideas they have when they come in here, we intentionally unmoor them from these ideas. And we teach them to accept a plurality of moral perspectives and cultural perspectives and ethical perspectives. We force them to argue both sides of an issue. To consider things like what it means to defend a person who has probably committed heinous crimes. We force them to consider points of view and perspectives that they otherwise never would have. And then when they get into practice, in the corporate practice, they soon learn that clients and partners will stick with the can-do lawyers. The lawyers who find solutions to legal obstacles. The ones who can help the client do what the client wants to do. Asking too many questions, refusing to take work. This means usually losing a client or the end of a working relationship with a partner. The lawyer who sticks to their ethical principles and does these things is going to pay a price. There's no pat on the back. At least not one that they're gonna feel immediately. Ultimately over the long term, a lawyer with high ethical standards will learn the respect of anyone who observes their behavior, but that's a long game. And it doesn't pay the student loans. On the other hand, pushing the envelope, right? Being creative, even crossing the line into illegality is in fact not particularly risky. Because advisors in complex transactions are almost never held to account. And that's the reality of practice for corporate lawyers. And we can't close our eyes to it. The ethical challenges that lawyers face in their career, everybody faces them in their career. And when it happens, it happens quickly. Sometimes it comes without warning. A lawyer that's economically dependent on a client or on a particular job is really especially vulnerable. I had a story told to me once by a colleague who had been working as a general counsel and was asked to participate in what he judged to be a deceptive transaction. He said, no, we shouldn't do it. He was told, do it. We're doing it. He picked up the phone. He called his wife. He said, you know, I think I have to quit my job. And she said, okay, come home. In a half an hour, he went from being the general counsel of prestigious firm to being unemployed and unable to say why with a family to support. So the cost of personal integrity can be very high. And with the greatest of respect, the rules of professional conduct in most Canadian jurisdictions, perhaps all, and then look at them all, failed to provide lawyers with, in my view, an adequate ethical framework around these issues. It's essentially up to each lawyer to learn for themselves what their view of independence and professional responsibility is and to find their own meaning around integrity and justice in their work. And we see a lot of rationales for this. And I'm gonna rely a lot of these on a paper by Robert Gordon from the Yale Law School. He's identified a few of these rationalizations that might seem familiar. The first is the law is really the enemy here. In this view, the law is really an impediment to free enterprise, right? These tax laws or securities disclosure regulations or product liability rules or competition rules, these are really a series of hurdles and obstacles that have to be overcome for the client. It all is just sort of a negative drag on business. And the lawyer's job is to help that client overcome those needless shackles. Other familiar rationales, I didn't know. I'm here performing a bureaucratic function. Our representation was limited to the very small part of this transaction that we actually have our fingerprints on. We didn't make any decisions. The client made the decision to do this. It wasn't our decision. And sometimes these claims seem credible and sometimes they don't seem very credible. The other, another position might be, well, I'm managing risk on behalf of my client. That is my job, right? The law here is really just a series of risks and potential liabilities that have to be overcome. We're not talking about murder here. We're not talking about things that are malum in say. So there's no real ethical obligation on the lawyer to encourage compliance just because the law exists. These are technicalities. Another position is I am being a zealous advocate. My duty is to my client. I'm representing the client's interests. I'm not an auditor. I don't have a duty to the public. I'm my duty is to my client to facilitate their freedom, to pursue any arguably legal position, right? Through any kind of arguably legal means. And what's not forbidding is allowed, you know? The law, if I'm not specifically breaking any laws, if I'm not specifically breaching the code of ethics, I'm allowed to do whatever I'm doing. So it's clear that our legal obligations, our code of ethics, prohibit us from knowingly helping a client commit a crime or commit fraud. But what about beyond that? What about an obligation to prevent a crime from happening in the future? What about the encouragement of compliance? What about responding to wrongdoing? Warning others of wrongdoing that's going on? You know, our current code of ethical conduct requires us to report up, to be the harbinger of bad news within the corporation, to tell the general counsel, to tell the board of directors what is going on. And report to the board of directors that this is happening. But if, and if they don't respond, if the wrongdoing doesn't cease, we are to withdraw from our representation. And that's it. We can't warn anybody about what's going on unless there's an imminent risk of serious bodily harm because of our rules of confidentiality. I'll contrast this with the rules in most US jurisdictions in the ABA model code of conduct. There is a permissive allowance for lawyers to alert the public where there's gonna be a risk of serious economic harm. And in a lot of state-far associations, it's a mandatory requirement to blow the whistle in these kinds of situations. But ultimately our professional responsibility rules here in Canada don't allow that. In my view, this, we can question whether that meets the needs of a modern society, whether we inappropriately prioritize our client's right to confidentiality over the protection of society at large from economic harm. What we depend on in this respect is the personal integrity of individual lawyers to do what they can when they see these kinds of situations unfolding. So I've gone over my time. I will leave you with this thought from Dilbert and pass the microphone to my colleague, Brent Cotter. Say a few words about ethics and lawyers in government service. It's a pleasure to have the opportunity to do so. I knew and admired Ted Wickwire. It's an honor to be able to speak with you at the Wickwire Lecture Series. I'm going to offer a disclaimer and then tell you two stories. And I'm aiming as best I can for two big themes in relation to the roles and responsibilities of lawyers in government service, which I'll mention in a moment. The disclaimer is that I worked for a period of time with the government of Saskatchewan and I'm presently employed at the law school at the University of Saskatchewan on a full-time basis. And the disclaimer is that anything I say today is not necessarily the opinion of the government of Saskatchewan. It's not necessarily the opinion of the College of Law at the University of Saskatchewan and it's not necessarily my own opinion. The two stories are these and I think they're different. In the mid-1990s, information came to light and was raised in the Saskatchewan legislature that the attorney general of Saskatchewan and a sitting member of the legislature had inadvertently and somewhat indirectly and perhaps foolishly identified a young offender in public. At the time, the young offender's legislation, and I think this is still the case, makes it a criminal offense to identify a young offender publicly. It became fairly clear that the attorney general was in some difficulty. I was working in a senior position in the government at the time in the attorney general's department and there was a team of us who were, let me call them loosely and formally an ethics group to kind of work our way through difficulties and headaches like this. And the conclusion of the ethics group is that the premier needed to be informed and instructed that he needed to remove the attorney general from his position while the attorney general was investigated with respect to this set of allegations. And sadly, it fell to me to go and tell the premier. And I did and spent some time with him and the premier was a former attorney general and he made it crystal clear in our first meeting that allegations against politicians are made all the time. And if politicians resigned from their positions every time somebody made allegations, the government wouldn't be able to function. But I gave him fairly clear advice and that was where we stood. I wanna come back to that story a little bit later and now for a moment share with you a second story, a somewhat different one. In Alberta in the 1990s, a company from Quebec won a bid to build an earth dam in Alberta. It was a contract put out by the Department of the Environment of the Government of Alberta. The company that made the bid was inexperienced in this work and made a ludicrously low bid, won the contract, launched the building of this dam and lost in the neighborhood of between five and $10 million, most of it due to their owning competence. But one part of their claim was that they had been given the wrong plans for the land where they were to build this dam. And as a result of working on this land, let me give you one small example, there was an area shown to be basically normal land, but it had been a place where a previous contractor had dumped hundreds and hundreds of trees and then covered it over with dirt. And when these folks went to try to do their dam work, they drove graders and things over this land and the graders basically sunk in this rotting hole and they spent weeks trying to get their graders out. They lost significant amounts of money because of the defective plans they had been given. Those plans were given to them by the Department of the Environment with the full knowledge that the plans were inaccurate and defective. And in the litigation, the government of Alberta's lawyers defended the whole claim, but including this claim to such an extent that the whole case was at the time the longest civil trial ever held in Alberta. And they defended this part of the plaintiff's claim knowing to a certainty that it was a justified claim. Let me just stop there. I'd like you to hold those two stories in suspension and let me say a few words about what I think is the overriding nature of an obligation of lawyers in the public service. In some respects, I think different from other lawyers. The nature of the client is, in some respects, similar to other clients, but in other respects different. And I want to really focus on the matters of difference. One significant way in which the government as a client is different from others is what I would call in its capacity as a representative client. Governments are public entities, incorporeal, there's no single person who's there, but are representative entities in the sense that they represent and act on behalf of all of the citizens of the jurisdiction. This representative work is not an easy thing to achieve since there are conflicting interests, conflicting philosophies, conflicting aspirations of citizens. And these need to be mediated through the government, its policies, its perspectives, its decisions. But the reason why it's fundamentally important for lawyers to appreciate this and the nature of the client, the difference of the client, is that they need to appreciate the way in which they relate to the law needs to be different and the way in which they relate to others who are dealing with their client the government needs to be different. Let me try to explain this by making two points. With respect to the first point, the government lawyer's orientation to law, we accept that this society in which we live is founded on the rule of law. We would have a much more problematic society if this were not true. In many respects, lawyers in government service are on the front lines of that commitment to the rule of law in ensuring that governments themselves abide by law. This has sometimes been described as a duty owed by lawyers in government service to the fidelity of law or what Adam Dodek, who was written on this subject called government lawyers as custodians of the rule of law. I think this is at the heart of the debate swirling around Ottawa legal circles these days concerning the government lawyer who's taken the federal government to court for its alleged failure to apply a meaningful standard of charter scrutiny to its own proposed laws. I won't say any more with respect to that example, but what I would say on this point is if government lawyers are not custodians of the rule of law, how can we expect others to be as committed? The general point is that on these questions, government lawyers must speak truth to power, often in the most difficult of circumstances. With respect to the second point, the government lawyer's relationship to the government's legal adversaries, I'm of the view that the nature of the client, that is, that representative client nature, requires that the government lawyer give a degree of respect to that adversary, a degree of respect that a lawyer representing a private client may not owe to an adversary. In a not very elegant way, I have called this a duty of fair dealing. I do not think that government lawyers are expected to roll over in the face of their adversaries. Indeed, they represent a fundamental, important client, a representative client in a way the rest of us. But that nature of the client has a representative of all of the public, including the adversary, means that the government client and the lawyer representing that government client owe a duty of fair treatment to that adversary, who in a certain way is himself or herself a part of the government client itself. I also associate this duty of fair dealing with adherence to the rule of law. That is, if people have valid claims, it seems to me the law should support them. And government lawyers should be respectful of that. So the two points again, adherence to or custodianship of the rule of law and a special duty to those who are in an adversary relationship to government. But I think that means in relation to the two examples. How am I doing for time? But I think this means in relation to the two examples is this, that it was fundamentally important for the lawyers who were advising on this question about whether the attorney general could continue in his portfolio while under criminal investigation was that the lawyers needed to and to their credit did insist that the premier remove the attorney general from his position. It took a fairly long period of time, and one of the most outstanding lawyers in the government of Saskatchewan still there now worked all night long to establish that in every comparable case in modern Canadian history, that was what happened. And to the credit of the premier of Saskatchewan, reluctantly, because there's a political price to pay for the embarrassment, and a personal price because they were close friends, nevertheless, to the credit of the premier, the premier did remove the attorney general from his position. He wanted me to tell the attorney general, and I said, actually, no, you're the premier, and I'm the guy who's got him under criminal investigation. I don't think that will work. It had a happy ending that I can talk about another time. The second example, I think, goes a bit like this. It seemed to me that the lawyers, the government lawyers, representing the department of the environment, defending the claim regarding the legitimate parts of the company suing for damages in relation to the building of that paddle river dam, it was called, overstepped their bounds, and they were inappropriately adversarial with respect to claims that were unquestionably legitimate ones, and it seems to me that they had failed in that context of fair dealing with essentially one of their own citizens. Those seemed to me to be important points to think about in trying to build public confidence, not just in law, but also in the nature of government. In that case, in the outcome, the government of Alberta, this was back when the government of Alberta had money, made an ex-Gratia payment to this company of $10 million. Mr. Klein spent money generously in the years that he was premiered, but and in some small way, I think it recognized not that there was any kind of criminality involved or necessarily even any civil liability, but that the government had overstepped the ways in which it related to one of its own citizens. I think it's heartening. It invites us to think about a different and special way in which government lawyers advance their client's interests but do so in a way that is highly and fundamentally respectful of the public interest. Thank you. Thank you, Greg. Well, thank you for that kind introduction, Greg. So, all right, so my topic is legal ethics in an environmental context, and I'm gonna take a slightly different approach to the topic than some of my co-panelists. And the key difference in my approach to this is that a number of the other panelists are looking at this issue from the perspective, I think, of where the boundaries are in terms of serving your client. Where do you get to the point where when you're pursuing the interest of your client, you're crossing some ethical boundaries? The issue that I wanna explore, and I do it in part because of a personal experience in practicing environmental law, but also in seeing students go through the program and then enter into practice, is the response, when you look at the three areas of responsibility that I think we all recognize and many of the students will have seen the Venn diagram of loyalty to the client justice and integrity, which I kind of rephrase a bit as responsibility to the client, to the public and to yourself, is the question of how do you ensure a healthy balance for ideally some synergies, some integration of those areas of responsibility that we all have as lawyers? And I think the environmental law area is one where that's particularly challenging. I don't think it's the only area where it's challenging, but it is particularly challenging in this area. So that's what I wanna focus on. So my starting assumption isn't that looking at kind of the responsibility to the client and how you exercise that, that there is a line that's being crossed. The starting assumption is that the work that you do as a lawyer is within the ethical boundaries, but still creates challenges. And so I wanna explore those. So to give you a bit of background, so my starting assumption is that environmental law is an area of law where societal norms generally have been well ahead of the substance of environmental laws and have been ahead of law enforcement. And I would suggest furthermore that the science that underlies those norms and those views is even further ahead of where we are in terms of our environmental laws. So what challenges does that create? So that's the first point. The second background point is that not surprisingly, given the first point, many, I would say most students that go through an environmental law program and decide that they want to practice environmental law want to work to protect the environment and to strengthen environmental law and to strengthen the enforcement of environmental laws. My students might disagree, but I would say certainly based on my observation, by far the majority, three quarters of my class would fit into that category. There, you know, you get students that just want to have some exposure to the area of law. You have the odd students that might see it as a lucrative career. And they're very quickly dispelled with that. So that's kind of the perspective that students have going through the program and entering the workforce. Of course, this is in stark contrast to the work opportunities that exist. So if I had to kind of generalize, so I have a class of 30 out of 30 students in a good year, there'll be one that will get a job in an environmental organization working in environmental law. There may be up to five that end up working for governments, federal provincial municipal governments working in environmental law and policy area, and the rest will end up in private practice. So it's the rest that I want to focus on a bit in my comments. And I guess if we think then about these 25 students that are entering private practice, so what's the typical scenario that they will be facing? So as I said, they will be starting with an interest in environmental law and strengthening environmental law, protecting the environment. And they will very quickly find that those views are at odds with the clients that they're being asked to represent for some. But it's not only the clients that are affected by it, that will have these different perspectives. I think many students entering the workforce will also encounter colleagues that have different perspectives. So in many cases, it's a firm culture that also does not take these issues very seriously. So there are intergenerational issues with respect to this. So the starting scenario is that you have lawyers, young lawyers that enter private practice, that face clients and colleagues that have very different perspectives on these issues. So what challenges does that create? What does that mean? Well, the choices are you either end up working in an environment where your personal views are at odds with the views of your clients and your colleagues. And I think that creates, can create unhappy, happy work environment. For some, and I see this with the students that I stay in touch with, it means they leave the practice of environmental law or the practice of law altogether. For some it means that they volunteer in the area and practice in other areas. But it's not a very healthy situation for the students that go through our program. So what are some of the solutions to this? What are some of the choices that are available? The first one is, of course, a choice of work. And so as a starting point, students can choose that if they care about the environment, that environmental law may not be the area they should practice in. And there are certainly lawyers that make that choice. Some will be careful about the firm they work for, look carefully at the kinds of clients they represent. But as I said at the outset, that really means work for one out of 30 in my class. So the rest of them would not find work by being that selective. Some efforts can be made to be careful about the type of work that's taken on, the type of clients within a law firm that you take on. But the problem is that the more selective you are in the type of work you take on, the less you actually practice environmental law. So it doesn't really get you very far. So some effort can be made in terms of the choice of work, but it doesn't seem to solve the problem. Most of the paying work is in that context and has those limitations. So then one solution is that you work towards a better balance. So this is what my starting point was that we have to look beyond the service to the client and consider service to the public and service to yourself and to your own values as part of the package. And so that means engagement beyond work. It means things like engaging with the Canadian Bar Association in law reform efforts, but doing it based on your own personal values and views, not representing the interests of your clients, which is what you often see. So separating when you're serving the client from when you're serving yourself and serving society. Volunteer work in line with the societal interests. We now, in Hullifax, we have the East Coast Environmental Law Association and many of the students that go through our program have been actively involved in the organization as students and beyond. So that's an opportunity that we've tried to create for ongoing engagement outside of the practice. Provolo legal work, of course, this needs to be properly supported. So those are some of the solutions that I see to create more balance between the necessary work to service the clients and the often diverging interests. So the last thing I wanna touch on a bit is separating out what a lawyer should and can do to move in that direction and what the role of a law firm might be in supporting that. And in the times that I have, I can't, I don't think I'll have time to go beyond that, but of course there are other players that have an important role to play in that and the law society would be one and the universities, the law schools are among them. But so what can a lawyer do? Well, there's this concept of self-governance and I certainly spend a lot of time with students that come to me to talk about their career plans to make sure that they understand or they think about the separation of the work that they do when they're representing their clients and their personal views and that they find ways of satisfying both. And I think, sorry, the computer writing is a little bit small. Sometimes I have a hard time seeing my notes. So that means working hard to at one time do your job in terms of representing your clients but also retaining your own identity in the way you engage with other lawyers and in what you do outside of the work before us. Look for opportunities to volunteer, learning to keep the representation of clients separate from your own use. And as I said, one of the areas where I think you see that in particular is in the way that lawyers engage in law reform initiatives, engage with volunteer work and so on. So that's the role of the individual lawyer. The other area, the other key player in this I think is the law firm. And I think law firms need to think carefully about how they can support this self-governing approach of lawyers, how they can encourage it, identify the value of it in terms of making for satisfied lawyers that will stay in their career over the long term and be happy with it. It means supporting the volunteer work that's being done. It means supporting pro bono legal work and actually properly supporting it. It means supporting diversity of views and values within the workplace. It means supporting this separation of client interests and personal views. I think that's particularly difficult, a difficult thing for young lawyers to do because there's a lot of pressure to satisfy clients and it is very difficult in that context for lawyers on their own to keep the separation. So I'm told that my time is up. I'll just leave you with one thought and that is, I think in the end, society is not well served by having only once, only some of the perspectives on environmental law actually represented because that's what we are, that's the situation we currently have is that the business perspective in environmental law is well represented in our society but we need to find ways to bringing in other perspectives and supporting them and supporting volunteer work and supporting pro bono work, supporting participation in groups like East Coast and Wildland Law is a good way of doing it. Thank you. Hello, everyone. Thank you for the opportunity to speak to you today. I'll just leave this here and look at that. So I'm gonna be speaking about a slightly different topic and that's ethics and tax practice, specifically with respect to ethical limitations on tax evasion and tax avoidance. We're fortunate perhaps that there's been a fair amount of media coverage in the last few years, particularly since the financial crisis, actually about tax. I mean, it's nice to see your subject actually discussed in the popular media, not just technical discussions by lawyers and accountants. So the Organization for Economic Cooperation and Development, the OECD as well as the G20 have made this a public issue, particularly with respect to international issues, so tax havens in particular. But the amount of evasion and avoidance going on is something that is discussed by the media in various countries. So in the United Kingdom, you have the BBC discussing this in particular, the Guardian newspaper has long series of articles about the tax gap as in the distinction between what is paid and what perhaps should be paid in the US as well. And in Canada, the CBC sometimes reports on this, although our discussion is unfortunately not quite as sophisticated. A lot of that discussion is about international activities, so it doesn't have to be, but it often is, about individuals, high net worth individuals who have undisclosed income in Swiss bank accounts, Lichtenstein bank accounts, whistle blowers, revealing the names of people to various government revenue administrations, including Canada. But almost invariably in a discussion of this topic in the media, the next paragraph, after talking about so-and-so who hides money in Lichtenstein, talks about the number of companies registered in, for example, Zug, Switzerland, which has a very low corporate tax rate, or the number of companies registered in the Cayman Islands ultimately owned by Americans. And there's a suggestion that they're guilty by association. It's difficult to make that association because you are talking about two different things. One, you are talking about fraud, tax evasion, non-disclosure of income that you know you are supposed to report. On the other hand, you're talking usually about tax avoidance, people structuring their affairs globally to minimize their tax burden. And it's important to distinguish those. It may be difficult on occasion to actually find that distinction, but your ethical limitations are different. And although there's often a focus on how the law should work, how taxpayers should behave, including corporate taxpayers, how revenue authorities should respond, how the courts should deal with litigation about these issues, there's not a huge amount of discussion about the ethical responsibilities of the advisors, so accountants usually, but also lawyers. Are there limits on what you should be advising on? It's fairly obvious, to me, to most people, that advising, counseling, tax evasion is bad news. In Canada, it's contrary to the Income Tax Act, or the Excise Tax Act, or GST, can result in criminal fines, criminal penalties, you can go to jail. Aiding or assisting tax evasion is a crime. Tax avoidance, it's more difficult. And there are differing views, and I just put some views here on the slide. There's the traditional legal view that you will get from virtually all tax lawyers. The public policy reasons for opposing aggressive tax planning, they don't overcome your duty to act in the interest of the client. There's another view that's often espoused by Americans, American academics, saying that tax lawyers have sort of a gatekeeping function because we're the ones who understand all the intricacies of the law. You have some duty to preserve the structure and purpose. You shouldn't be complicit in abusive transactions. Now, when we use the term abusive, we could mean tax evasion. You shouldn't be assisting somebody to set up a foreign trust to hide their money in the Channel Islands, where you know full well that that's part of their worldwide income and it's supposed to be disclosed. That's a criminal offense, yes, you shouldn't be involved in that at all. The thing is that the amount of money, the amount of revenue globally that's lost due to that is small in relative terms. I mean, we're talking about unknowns here, but it is small compared to the amount of money lost through aggressive tax avoidance, particularly corporate tax avoidance. Dealing with the latter is more difficult and what are the lawyers' responsibilities in that area? The difficulty with this is it ultimately comes down to what is the purpose of the law? You've got to look at the text, you've got to look at the context, you've got to look at the purpose and decide what is going on here, is it consistent with the purpose of the law? Is it contrary to it? If you're advising somebody to do something that is contrary to the purpose of the law but doesn't quite reach the level of tax evasion, are you acting unethically? That's a difficult issue and I use this chart that myself and some co-authors devised to sort of illustrate the difficulty here. The triangle on the far left is from John Braithway looking at individual tax complaints and the idea is that as you go higher up vertically, it's getting more aggressive. The width represents how much of it is going on and so if you talk about individuals, his suggestion was it's triangular shaped, there's a whole pile of people who are just compliant individuals in filing their tax returns. They're not evading, if they have a small business, they report all their revenue, they don't earn on a cash basis and not disclose it, they report all their deductions properly. Then you've got a bunch of people in the middle who are engaging in some activities that might describe as avoidance. They are exploiting loopholes, if you will. Some of those activities we would say are completely standard, everyone does them, other things are maybe more aggressive. Then you have a group of individuals at the top who are outright evaders. They run a small business, earn their income on a cash basis, don't report it for GST purposes, don't report it for income tax, they invent deductions or if they're a high net worth individual, they have money hidden in a bank account in the British Virgin Islands and that's it. John Braithwaite's suggestion was that if you're talking about corporations, the graph is more egg shaped as in it's bowed out in the middle because there is a huge amount of avoidance that is perhaps aggressive, perhaps normal, so the blue area is big. There's lots of tax avoidance going on because the rules are complicated and the spirit of the rules is not obvious. There are a lot of textual rules that point this way and that and so there's a great deal of that going on and less of what you could call complete compliance where you imagine you're a United States company such as Google or Apple or GE or a bank do you really wanna pay 38% corporate tax on all your income, probably not. If you've got international operations you're gonna engage in various transactions to avoid some of that tax and some of those activities, the IRS would say it's completely legitimate, we have no problem with it, other activities are more aggressive and so you see in the media reports that companies like Google or GE or Apple have a US tax rate of close to zero, not 38% at all, close to zero effective tax rate. The way they compute those rates is contentious but there's no suggestion that those companies are engaging in evasion, there's no suggestion that their lawyers are complicit in evasion in advising Google to root a lot of its IP income into permutant. They do so because there's a 0% tax rate there. Is it aggressive, perhaps? Does it result in massive revenue loss to the US? Yes. Are the lawyers who are advising on those transactions doing something either ethical? Probably not, as long as they're complying with the American Bar Association rules and treasury circular about tax practice and so on, they're probably not doing anything wrong. Then you've got a certain amount of evasion at the top. So even if you're talking corporates, you've got Enron, as Sarah was talking about before, involved in various kinds of corporate fraud. One of the things that was in there was tax evasion and that's gonna be hopefully less common, partly because they're concerned about corporate reputation. It's not good to be involved in crimes and obviously their lawyers should not be advising them on criminal courses of action. Now the chart on the far right was sort of an innovation of this that myself and some co-authors worked on when we did a survey of tax directors of large businesses in the United Kingdom and spoke to them about their tax planning slash avoidance activities, not in too much detail, it was all anonymous of course, but just trying to get an idea of, what is the range of activity that's going on? And everyone, we're speaking to larger companies of course who have serious reputational concerns. So all of them would invariably say, we don't wanna have anything to do with tax evasion. We do not wanna be committing fraud. It is horrible for our business. We would save some beer money as they put it, but we destroy our corporate reputation. We're not gonna do that, but there's a huge amount of activity that you could call slightly off of full compliance. Planning, avoidance, how aggressive is it? And the shading we've suggested is because there is a range of activity here. And when you say you accuse someone of acting aggressively, abusively, unethically, it's because you've decided there's somewhere in there that the activity should be, that the boundary should be, and that may not be the boundary that other people would suggest. And so it's, although I would still maintain that there is a clear line between the most aggressive avoidance and evasion. I mean, that line you could say is the mens rea, you actually know the law and you want to breach it. You're into the evasion category. Okay, so what's too aggressive for the taxpayer to do and what's too aggressive for the lawyer to advise on in that range? That's really the question. In Canada, we have in our tax rules various specific rules that say, this or that transaction doesn't work. We tried to do this, you're not gonna get the tax result you thought you were. Okay, fine, so there are specific anti-avoidance rules. We also have what's known as the general anti-avoidance rule or GAAR, which some of you will be familiar with, that basically says, if what you've done complies with all the specific provisions, textually, but the primary purpose was to avoid tax and your transaction results in a misuse or abuse of our income tax rules, then we can recharacterize what you've done and essentially deny you the tax benefit, okay? So whether something is too aggressive in general is tied very much up with our concept of the general anti-avoidance rule, which exists in many other countries too. So just to give some examples, think of an RRSP contribution. Most people are familiar with an RRSP, you contribute to it, you get a tax deduction, okay? That's probably would be considered compliance. It's not avoidance at all, even if you called it slightly above compliance, it's the most basic kind of tax planning, people do it all the time, it's encouraged by the government for you to do it. What if you used RRSP for income averaging, you're sticking money in it one year and taking it out the next, you have no intention to save for retirement, it's just because you know your income is gonna be lower, because you're gonna be trekking in Nepal or something like that. Is that avoidance? Probably. Is it consistent with the purpose of the rules? Who knows? You're not really saving for retirement, but I know for a fact that the CRA has no concern with that kind of transaction. Obviously, when you get into the more complicated corporate transactions, it becomes less and less easy to identify what the purpose spirit of the object of the law is. And that's where there's a lot of room for the lawyers to give the opinion that, well, there are a variety of complicated rules that point in this direction of that. We can't really tell you what the policy of these rules is. We can take our best guess, but what you're doing is compliant with the text. It seems to be compliant with the context. We think if the CRA can revenue agency challenge this transaction, it was litigated by the Department of Justice. We think the court fully informed of the facts would find that your transaction was fine because it was not contrary to the purpose of the rules. If you think it would be contrary to the purpose of the rules and you're gonna lose under the general anti-voidance rule, you should give that advice. So the difficulty is what if you're in this very dark blue area? The transaction seems to you to be technically compliant, highly aggressive, maybe not consistent with what the purpose of the law would have been had parliament thought of all the avoidance possibilities, but does appear to be consistent with the purpose as drafted. Is it unethical for you to advise to go ahead on the transaction? I've struggled with this. And I mean, I think it comes back to what Meinhard was saying. Probably the best way to approach this as an ethical lawyer is to say, look, here's the advice based on the current law, the best of my knowledge, this transaction works. It's not gonna be subject to the general anti-voidance rule. We think you will prevail if it's litigated. There's nothing wrong with giving that advice. If you find it distasteful to be involved with it in that, I think the response is, you could choose different clients if you want to, but the other thing is to think about your public service role as a lawyer. You have hopefully some time beyond your time as a zealous advocate to actually think about law reform because the reason that transaction works and you're not happy about it is because you think the law is flawed. And the answer is not to criticize the client or to say, I'm not gonna give that advice because it's unethical. The answer is to think about how the law could be improved and actually vocalize that to the public or to government because there certainly is room for improvement in our tax code so that aggressive tax planning is not as easy as it currently is. Okay, I will leave it at that and turn it over to Professor Roley-Chokson. I should just tell you that in evidence class, as I always say, you put the word context on the exam and you'll lose a mark because that's just one of those overused, woolly Supreme Court of Canada terms. However, I have to talk about family law and context. They made me do it, Richard Devlin made me do it. My main topic, and I just want to tell you here, is I think I described this as a bad but interesting example of a failure to consider context, in particular the family law context by the Bar Society's, an opinion of their legal ethics committee in October of 1999. So what the heck, they sponsored this lecture so let's talk about them. It's on the duty of the lawyer to report his or her own client under the Children and Family Services Act. I think the committee got it wrong. That'll become clear as I talk. I think they didn't think about the family law implications of what they were doing and therefore they missed the context. So I'm gonna talk about what that context is. Having said that, oh by the way, at the end of my time, there's some other topics I'd like to talk about if you and I both know I won't get there, all right? So I won't even go to those last pages. But there are some other interesting issues I wanted to talk about. But this issue is one, although it's decidedly local, it's a Nova Scotia issue. It actually is an, it's actually a useful case study about the collision of two fairly large and important public policies. One of them which is the protection of children from harm. That's a very important and fundamental public policy. And the other one, of course, is the protection of solicitor-client relationships and maintaining the ability of in particular family law lawyers to act on behalf of their clients. So obviously we have those two at odds with each other. All right? And it's, I know, by the way, I have the much coveted last spot here on the panel. And right after me, of course, you'll perk up when the guy from out of town, Stephen, will sum it all up and make sense, especially for you third year students who have been wondering about that, all right? But you may have noticed a theme here. You may have noticed a theme, and it's the running theme of the lawyer's duties as a lawyer in conflict with public policy and various kinds of public policy. I'm gonna talk about this one. Here's the fact situation. Family lawyers know that what matters is facts, not law. I'm gonna talk about a fact situation. This is the fact situation set out in the October 1990 Legal Ethics Committee. This is the facts that were presented to them. And my students will be surprised. I'm gonna go very slowly here, all right? The mother is diagnosed with a paranoid disorder that affects her ability to care for her child. Shulin's aide, the agency had apprehended previous children. They're both now in the care of the father. She has another child apprehended at birth, now returned to the mother and in the mother's care under an order of supervision and proceedings underway. Her lawyer, and this could be you, her lawyer talks to her on the phone and the mother is going into an episode. The lawyer can tell that because the lawyer knows his or her client. The lawyer is worried about the risk of emotional harm, says the Ethics Committee, but not imminent physical harm. They actually go the other way to say that. The mother refuses to go, by the way, just to close off these questions. The mother refuses to go to her family doctor or to her psychiatrist. The issue is what should the mother's lawyer do when faced with this situation, right? Now I know, looking around this room, that some people had been at the clinic and had actually addressed these kinds of issues and talked about these issues at the clinic, so they understand that role. Section 24 of the Children's Family Services Act in 19, brought in 1991 requires every professional or official who has duties in relation to a child, and that includes, by the way, a lawyer, to forthwith report that parent to the agency if there are reasonable grounds to suspect that a child is or may be suffering or may have suffered abuse. And by abuse we mean, in this definition, in the statute, physical harm, sexual abuse, medical neglect, emotional harm, delayed development, repeated exposure to domestic violence, chronic and serious neglect. Those are the headings that are listed there. Section 24 lists off various professionals, like doctors, nurses, teachers, daycare workers, not lawyers, they're not on the list, but the list says, in those doing professional official duties with children, including those individuals. So it doesn't exclude lawyers, even though they're not explicitly mentioned. And section 24-3, the statute says, the duty applies whether or not the information reported is confidential or privileged, all right? So that's the section 24, which by the way, as one of the, as the person who drafted that provision, I can tell you, is carefully enough drafted to support a prosecution and a conviction just for the record. Section 23 of the act, on the other hand, is an older provision and it places a duty upon all persons, every person, not just professionals or officials, to report information indicating whether or not it's confidential or privileged, information indicating that a child is in need of protection, and they have to report it to an agency. That's a duty that rests upon everybody, professional or not. Information indicating is even broader than reasonable grounds to suspect, not only that, but the listing of what makes a child in need of protection, possibly, which that refers to, lists off 13 clauses, A to M. So it's a longer list as well, all right? Sorry. Bear with me here. I'm gonna tell you some history, because the history is important. These are things that got ignored in the course of the ruling, and that's why, or the advice, and that's why the history matters. The broad language of our current Section 23 in Nova Scotia traces back to before that, the Children's Services Act of 1976, and even before that, to the Child Welfare Act, this amendment was brought in, the duty to report, the Section 23 duty in every person in 1968. Where did we get it? Where did we get all our stuff in Nova Scotia? We got it from Ontario, all right? Because Ontario brought in a duty to report in 1965, so we caught it into our statute. Where did Ontario get it? Where Ontario gets all its stuff from the United States, all right? Because in the United States, the duty to report, the general duty, arose in the 60s, all right? So the reason I'm saying, you gotta go back there, and I just wanna mention in passing, there's a really brilliant and helpful article written in 1992 about the American laws and the duty of American lawyers to report, like I called Robert Mosteller, who's a professor at Duke. So I'm just saying, we're not alone in struggling with this in Nova Scotia. We face some of the similar statutory language. Here's what the Ethics Committee said, all right? And I'm quoting them. Lawyers have a duty to report under the Children and Family Services Act. That's quotes, both under Sections 23 and 24. Despite the lawyer's duty of strict confidence. And this is their quote. There was no absolute privilege, they said. The lawyer should report this client to Children's Aid for the risk of emotional harm. And no, as I said, there's no talking about risk of physical harm. Now, this is non-binding advice from the committee. They might be right about the income. Actually, I might doubt about their outcome as well, but certainly the reasoning is wrong. And the reason I wanna emphasize that is we gotta talk about the issue of privilege and how that one develops. And some of you have discussed this in the professional responsibility course, am I right? Now, I think to some extent, it's a knee-jerk response. Lawyers can jerk at the knees just like anybody else. And I think it's an automatic response to the concern about protecting children. So it's understandable where that comes from. But let's go back and cover some more history here. And I just wanna mention this, which is context again. First thing is in all Canadian jurisdictions that have reporting provisions, all of them provide for an exemption for information acquired by Solicitor Client Privilege, except Nova Scotia, Newfoundland and Labrador, which leave the issue open. You say, how could that happen in Nova Scotia? Well, I was there. I can tell you how it happened. All right, I see a smile there from someone else who was there that long ago. But the reason I wanna mention this is I was on the legislation committee that was involved in drafting the Children and Family Services Act back in 1989. And I wanna tell you this is how everything connects eventually in Nova Scotia, which is I only wound up on the committee because Brent Carter left town, right? And they had to find someone who was second best, Dr. Brent. And ironically, I wound up drafting the Children and Family Services Act along with Martha Mugger under the direction of the committee. There was a split in the legislation committee, particularly between social workers and lawyers, but there was a split in the committee. There were some who argued for the Ontario model, like me and Brent before me, that said we should exempt solicitor client privilege. The others in the committee disagree. We agreed to disagree and to leave the situation as one which had been in place since 1968. Does confidential or privileged mean solicitor client privilege as well? So it was left in a position of ambiguity on purpose. Knowing at that time that the law pointed away from a duty to report because of some decisions in the past on the issue. And that's that. We know that the law of solicitor client privilege says that it's only if it's abrogated in clear language. And that means specifically for the most part that you're gonna find it overridden. So I just wanna mention that. And there's an old Nova Scotia Family Court decision to that effect under the old act from 1984. That's how old it is. And I just, for the record, I was the lawyer for the parents who was argued to have a duty to report in that case. But I just wanna clarify what this means when we're talking about solicitor client privilege. Number one, which is a lawyer like any other human being in this province has a duty to report information other than involving clients. Let's remember that one. Number two is if the information is acquired by the lawyer other than by way of solicitor client privilege, that's, there's a duty to report that too. Third thing is that someone other than a lawyer obviously can report and that can come up, right? Which is you send that individual client to a doctor or a counselor, they have a duty to report and it may happen that way. It's only information acquired by the lawyer by way of privilege that's the issue, right? A lawyer acting for a parent in a custody case has to ask a lot of probing personal questions. Some of you in this room have asked those probing personal questions. You have to ask people about their background, their own parenting, about their life experience, about their strengths, their flaws, things they're embarrassed by. You have to ask them all those things, all right? And you know what you find, two minutes. All right. I guess we don't. Cutting to the chicks, it's okay. I knew Richard was me tough with me. But my point is you have those conversations and people are concerned. They're often telling their story for the first time outside a very tiny circle of friends. And we know that lawyers need that candidness in order to be able to act properly on behalf of the client. But the other policy at work of course is that children can't go down to the police station. They can't go to the children's aid office, especially very young children. When we brought in child abuse reporting laws, we brought them in to make every adult a good Samaritan, to require every adult to report on behalf of children to protect them. And in order possibly to trigger investigations. So we got these two laudable policies in conflict. One way out of the conflict, which is not discussed by the committee, is the future harm exception. And because all of you in this room know the future harm exception, I'm not gonna tell you about the Smith and Jones case that it came from. But it's this notion that a lawyer may breach solicitor client privilege in order to report if three conditions are met. Three conditions, right? One, a clear risk of harm to an identifiable person or group of persons. Two, it's a risk of serious bodily harm or death. Three, the risk or danger is imminent. In that situation, a lawyer may report despite the presence of solicitor client privilege. You can see the clear application of that in the context of the child abuse reporting legislation. Now of course it says risk of emotional harm. And the provision we're talking about says risk of serious bodily harm. Now there's, and they talked about an element of violence being involved. But also the Supreme Court said serious psychological harm forms part of serious bodily harm. So the question here is obviously serious physical harm, sexual abuse would be covered. The issue is what about this risk of emotional harm? My quick answer would be in this situation, in this set of facts, there may be no duty to report. But we would need more facts. And more importantly, the ethics committee needed a different focus and a different set of facts in order to address that. Now I wanna just make a final point about context in terms of lawyers. Upon whom does this duty fall? What kinds of lawyers? And the answer is family law lawyers. And more particularly legal aid lawyers engage the practice of family law. Not insurance defense lawyers, not corporate lawyers, not tax lawyers. So there's a second kind of context. Not just the context of the law and the duties of lawyers in relation to the public policy about protecting children from harm, but also the people who have to do that balancing and make that decision. So that once again, we have to keep that in mind that the people who would face the consequences who would have to inform clients of their duty to report who would, and I face these issues myself personally, would fall upon a distinct group of lawyers. So in terms of context, the committee missed two. They missed, number one, the context of the issues and the clash of public policies. And they did not find, I would suggest, a delicate balance. The future harm exception is an important part of that delicate balance, whether it should go further, requires careful study, careful research, careful conversation. And the other part of it is making sure that we think at times that we're engaged in these kinds of rulings, we think about what part of the bar and what distinctive areas, the context upon which the obligations will fall. So I'll stop there. Thanks. Well, I can now say good afternoon, rather than good morning when we started. It's a pleasure for me to be back in the city of my birth. It's been very difficult for me waiting to speak last, waiting through all of the exciting and engaging material that our panelists have put forward. I understand from Richard, I either have 12 minutes or until one o'clock. So we'll have to figure out how that works. I have a few things to say by way of opening. It's been 20 years since I heard Tim Daly's rhetoric and I must say it hasn't changed. It's as excellent as it was when I remember it from that time ago. I wanna thank Richard for inviting me down here to serve as the rapporteur. After our email discussion, I then had to look up the word rapporteur when I discovered that it didn't involve actually preparing any material and that all I really had to do was steal some of the best lines from the panelists. I thanked him even more profusely for engaging me in that particular role. And I wanna congratulate both the Shrulik School of Law and the Nova Scotia Barristers Society for the significant efforts that both have put into this lecture and this ongoing lecture series. One of the difficulties with an institution like a law school often is you can lose sight of just how exciting something that you do on a regular basis is because it's so close to you and you're used to it. And for those of us that look at the Wickwire lecture series from afar, it is something that we greatly envy. It is a wonderful thing that you get to do here at this law school. I know it is something I would love. I'd love to see my law school have an annual lecture series that was devoted fundamentally to ideas like legal ethics and professionalism. So this is a terrific endeavor and I commend Shrulik and the Barristers Society for their work in that. Let me say, I'm gonna try to identify four themes that I see running through what the panelists have been talking about today. One of those themes is the extent to which ethical rules differ between contexts and the extent to which they should. In other words, should we understand legal ethics as a generalized body of law that in many ways operates the same way across different disciplines of the law or should we think that ethical rules actually get fragmented and are somehow written down and understood differently across different contexts? And there's certainly debate and tension about that as a theme. A second and perhaps related theme is even to the extent we think general ethical rules do operate at a general level across various areas of the law, are ethical rules clearer in some contexts and murkier in others? In other words, are there areas of the law where lawyers can more readily apply a particular rule and yet that same rule in a different context, a different legal framework becomes murkier, becomes harder to even identify or harder to figure out how it applies in that particular context and to what extent do we have to take that into account even if we think we are applying the same rule across the different context? Third theme, turning to the attention of some of the students who are assembled here today, to what extent do entrants into areas of practice in law have to take the different ethical contexts into consideration in deciding what to do, right? In other words, do law students when they're worried about having the resumes go off and their transcripts be good enough and trying to get an article in position, trying to get the associate, trying to make partner, do they think about whether the ethical environment of a particular area of law that they are aspiring to practice matches their own ethical temperament? Or is that something that is left out of the calculus until perhaps it might be too late and they find themselves in a practice environment where the ethical issues and implications are not well situated with their own personal views? To what extent do we encourage our students from law school to think about ethical issues and their own ethical temperament in deciding what area of practice they may want to enter? And then a fourth point, also related to students but also related to the law school, to what extent would we think legal ethics are better taught and understood in a contextual setting? In other words, if we taught legal ethics in the context of a tax course, in the context of a criminal law course, rather than teaching legal ethics in a survey course, my experience when I was a student here was that the mandatory ethics course was a survey course and in a sense, you can't teach ethics divorced of context, you have to have some context but what that meant was we had a revolving door context that is the context would get changed for each particular rule or each particular discussion that we were having about an ethical issue and that's certainly the way we teach our mandatory first year ethical course at Western Ontario is that we focus on no particular context and we bounce around context to context as we understand legal ethics and professionalism. Does it, to use Richard's words, provide a truer picture in the real world of how legal ethics are actually understood if we looked at them and taught them more in a contextual focus, a uniform context? Clearly, we'd have to give some things up if we taught it in a particular unique context, that context might not be a ribbon's cup of tea, for example, but is the gain there worth that trade on? I then now wanna direct some remarks, of course, to the intellectual buffet that we've had before us today, the six panel presentations. They were strong, interesting, well presented views, even if Brent's views were somebody else's rather than his own. And I can't here provide any sort of a summary, that this really is just my musings on some of what we've heard. Tim will know this is in effect my PMR and I have insufficient time to do justice to what was said and I have had much less opportunity than my colleagues have had to distill my thoughts on these matters and I'm reading notes that I scribble down and can't really read. But with all that said, let me turn first to Philip's presentation, talking to us about how history can help us understand the rules that we have today, the rules and the principles that we have, and in particular, he drew our attention to the value of comparative work that we need to understand if we're going to try to draw on ethical rules or principles from other jurisdictions, that the history and the development in those other jurisdictions may well be quite different from our own. And that point resonated well with me. I've recently done a piece on ethical rules related to judges who return to the practice of law and I've had to appreciate in doing that work when I'm looking at the comparable American rules and comparing them to the Canadian rules that the American context in which judges return to the practice of law can be very different from the Canadian context. The phenomena, for example, of elected judges who can get elected, serve for a very short time and then lose the next election much more naturally would turn at a much earlier stage in their lives doing back to the practice of law is quite different than the way that same phenomenon plays out in Canada. So that comparative and historical understanding helps to inform our understanding of what the current rules or principles should be. I also took some note of Philip's point about the selective enforcement over history of ethical rules and I found that very resonant today because today one of the big themes that we see is are ethical rules being enforced selectively not necessarily in the same way historically in the past his point, for example, about minority groups but we have real concerns about whether ethical rules are being selectively and disproportionately enforced against lawyers who are in small or solo firm practice environments rather than in large firms. It's much rarer for lawyers in large firm environments to suffer at the hands of the disciplined bodies of the regulator. The same is equally true for lawyers in government practice. So we do see even today examples of selective enforcement of these rules and that history can certainly help us understand some of that. Sarah then spoke to us about a corporate law context and I drew both a specific and a general theme from what she offered for us. The specific theme which actually came up in several of the other presentations so it worked our way through throughout the presentations is this idea about whether the rules are right? Have we set the right balance between competing issues? The Smith and Jones exception to confidentiality and whether serious financial harm should be enough either to trigger a mandatory reporting or at minimum a permissive reporting by the lawyer and how do we balance that against duties of confidentiality and solicitor client privilege? And context again here is important. Do our general rules take sufficient account of the corporate law context in which this particular dilemma plays out? Her general theme was much more aggressive. An argument really against this idea of role morality and moral neutrality on behalf of lawyers that lawyers can just be a conduit for their client, that they can just be a potentially a mouthpiece for their client and that is a highly controversial topic that crosses many debates within legal ethics. People would have difficulty not in the obvious cases of course where we can see an ethical violation but where we're in doubt as to whether there is a violation of law that the client is proposing or not. If for example, just to pick a number out of thin air we thought there was at least a 5% chance that the client's steps moving forward would be legal. Would that be enough to trigger our concerns about not acting the way the client is instructing us to act or would we feel that that was enough of a chance that we did need to exercise our role on behalf of the client and proceed? So there's significant and very important debate there. I then turned to Brent's presentation which of course was in the context of government service and again he asked a very good question which was about whether our rules take sufficient account of the nature here of the client, the representative nature of the client and it got me thinking a little bit again about the historical development here because as many people will know for many years governments were not treated as normal litigants. Governments benefited greatly from all sorts of privileges in litigation that made them very difficult to be held accountable through the normal process of litigation and over time the philosophy in the litigation environment has moved to governments being treated more and more like what we might call a normal litigant so that they don't have these special rules when governments are engaged in litigation. They operate as normal litigants and Brent's suggestion is maybe the pendulum should actually go even further that we can't even just treat them as normal litigants that they can't behave as we might expect a private party to behave in negotiations for example or in litigation strategy as his example illustrated. We know that private litigants can of course hold out weak points as well as strong points sometimes purely for tactical reasons but it would be a significant sea change as Brent suggests for us to move the line even further for government as litigant to say not only do we treat them as a normal litigant but as a special litigant who cannot behave in the way that we might think a normal litigant would behave in these circumstances. So again, terrific food for thought there. Mineheart then on the environmental law context came back to one of the key themes that I outlined at the beginning of my remarks which is this idea of the difficulties involved in counter-attitudinal work. What happens when you make the choice to go into a career area and then find the practice of law and the ethics and values in that practice at odds with your own? To what extent can you have fidelity to yourself if you're going to engage in certain types of legal work even as he said if the work itself isn't unethical, the work is perfectly ethical, it just doesn't accord with your own personal norms. He offered us some good suggestions as to how that balance might be struck and I wanted to offer a further one that occurred to me although it perhaps might be more naive than his suggestions which is whether or not the lawyer in that circumstance can in fact manage the client. Is it possible for the lawyer through dialogue with his or her own client to moderate the client's position so that the client's position actually becomes at least closer to if not identical to the lawyer's position. That is, is there room for the client to be persuaded to see the benefits let's say to a corporate compliant of a higher standard of environmental compliance and lawyers can play a role in actually moving their own clients beyond the position the client might strictly or literally take to a position that they ultimate the client actually sees the benefit in and it accords with the moral values of the individual lawyer. Jeffrey in his presentation returned again to some of the themes that Sarah had talked about the corporate context, the tax context, having some similarities. I should say that any comments I make on the ethics of tax law are not in any way relevant to my holdings in the Channel Islands. But the question here of course is what steps a lawyer can take. And again, Jeffrey's comments like some of Sarah's cause real difficulty in situations where it's not clear. If the line is blurry as to whether this is legal or not then the ethical dimension becomes quite difficult. He also raises for us the idea about whether the rules say enough about the specific context. Do we need ethical rules pointed at tax, for example, or can the general laws be sufficient for us? And then finally, Rolly in his remarks, I wish I could comment on the interesting issues that he didn't get to, but he didn't get to them as he said, but the ones that he did get to again focus us on whether we need specific rules for specific contexts like family law and also again another great debate about ethical rules. Have we set the balance in the right place between a statutory provision, like the one he discussed on the one hand, and between the privilege confidentiality question, something that the Supreme Court of Canada in its recent run of jurisprudence has elevated to a very, very high level. So it makes it difficult for us to set that balance between privilege on the one hand and the protection of children on the other. And I thought in a wonderful twist, Rolly also brought us back to where we started. He brought us back to Philip's paper on history because we looked at again the importance of the historical development of the law and the importance of comparative development of the law across different jurisdictions, whether it's my own of Ontario, whether it's the United States, where allegedly we steal our all our law from, according to Rolly, and so forth. So that's my, I suppose, potted observations or very brief observations that I might offer on each of the panel presentations. It remains simply for me to thank all of our six panelists for their wonderful contributions here today. And allow me to make the final thank you. But before I do that, as I listened this morning, Ted Whitwire, and whose name we come together today, practiced in each of the areas that our panelists spoke from this morning. And I can remember many discussions with Ted, especially around the time when the original code of conduct, our original handbook was being debated. He brought the perspective of the family practitioner of the tax lawyer, of the lawyer in government and in corporate practice. And Ted was an amateur legal historian and very much would have relished in the way Phillip started us today. So I really do thank all of our panelists. I thank Stephen for joining us. It's always good when someone comes home and joins his old debating buddy in a repartee. So again, on your behalf, thanks to everybody. Thanks to the Schulich School for hosting us again. And we'll be back next year. Thank you.