Perhaps it’s a sign of the times, but if so, then it’s pointing in the wrong direction. As society has adopted, if not embraced, more superficial forms of communications, that informality and a certain lack of decorum and professional courtesy appear to be seeping into the manner in which some barristers conduct themselves both inside and out of the courthouse.
Over the past few months, I have been surprised by the number of anecdotes shared with me by a wide variety of lawyer friends and colleagues all following the same theme, i.e. the unwitting failure of other lawyers to act with a reasonable degree of professionalism (to a greater or lesser extent). While I certainly don’t want to suggest that all change is bad, or that we should blindly adhere to antiquated traditions, there are some rules and trappings of this venerable profession of which every lawyer should be cognizant, and that she or he should uphold in order to maintain the professionalism and integrity of the bar.
So here is a little grab bag of thoughts and observations on professionalism and professional comportment that every barrister ought to know, but some apparently don’t. I hope some readers will find these comments helpful, or that they might at least add some fuel for the chatter in the lunchroom or at the water cooler.
Dress for success
When I was a newly called lawyer, a well-worn story was still making the rounds about some poor fellow who attended at court wearing his freshly polished brown shoes. I don’t know if it’s still floating around or not. It goes like this. Mr. “Désolé” stood up before a notoriously stern judge to make what he was sure would be a compelling and irrefutable argument. “I can’t hear you,” said the judge. Mr. Désolé spoke louder. “I said, I can’t hear you,” repeated His Honour. Flummoxed, Mr. Désolé started his submissions again, adding yet more volume. However, he was cut off by the judge saying, “Mr. Désolé, I will not hear you as long as you are wearing brown shoes in my courtroom.”
Who knew? And what is “proper courtroom attire?” The same rules apply for appearances in all superior courts across the country, subject to any local practice directions that may relax the rules in defined circumstances. In Ontario, the Law Society of Upper Canada has the following information posted on its web site:
Required court apparel for call
Every candidate for call to the bar must appear before Convocation in full court apparel, which consists of:
• black shoes
• black or dark grey socks or black, dark grey or natural hose
• black, dark grey or dark grey striped trousers or skirt
• black gown vest
• black gown
• white shirt with stiff wing collar and white tabs
So, I’m sorry Mr. Désolé, no brown shoes in the courtroom. Or red, blue, or green shoes for that matter. Similarly, while it may not be expressed, it is generally frowned upon to wear sandals or open-toed shoes in court, as a matter of respect to the court, as well as general decorum.
One last point on court apparel before we leave the topic. Court apparel is to be worn in the courthouse. Not on the street. When you leave the court, you should remove your gown and tabs.
Communicating with corporate witnesses
The rules about communicating with individuals who have relevant evidence in respect of pending litigation, but who are employed by a corporation that is adverse in interest to your client is a murky area. Shielding employees from interviews with opposing counsel is contrary to the general policy objective of broad discovery rights, but is in keeping with maintaining the integrity of the solicitor-client relationship. In November 2010, the LSUC Rules of Professional Conduct were amended with a view to defusing this potential minefield.
Rule 6.9 provides that if the corporation is represented by a legal practitioner, then one may not, without opposing counsel’s consent, communicate, facilitate communication with, or deal with a person who is the de facto client, i.e. a person:
(a) who is a director or officer, or another person who is authorized to act on behalf of the corporation or organization;
(b) who is likely involved in decision-making for the corporation or organization or who provides advice in relation to the particular matter;
(c) whose act or omission may be binding on or imputed to the corporation or organization for the purposes of its liability; or
(d) who supervises, directs or regularly consults with the legal practitioner and who makes decisions based on the legal practitioner’s advice.
Counsel is not, however, precluded from interviewing mere fact witnesses, even for the purposes of obtaining admissions in the evidentiary sense. There is a very lengthy and detailed discussion interpreting this rule, which I strongly recommend every barrister read before proceeding to interview employees or other representatives of a corporation that is represented by counsel.
Communicating with the court
There have been any number of articles written on this topic over the past few years. Both judges and practitioners have spoken, and the message has been consistent — you should not be writing to the court on your own initiative. And yet, many barristers still appear to be of the view they can communicate with the court at will, and oftentimes without informing or copying the communication to the opposite party.
The perception that it is permissible to communicate at will with judges outside the courtroom may be the unintended result of such things as case management, and the accessibility of e-mail. In an action being case managed, or where a judge is seized of a particular matter, it may be appropriate to communicate directly with the case management judge or master (through their assistant, unless you are told otherwise) to arrange for case conferences or to efficiently seek directions or advise of issues resolved on consent. Only if the case management judge or master provides express directions, may communications on other matters be made directly with the court.
If there is no judge seized of the matter in issue, and the case is not otherwise being case managed, it is simply inappropriate to write directly to a judge in respect of pending litigation. Such communications undermine the administration of justice by compromising the perception of independence and fairness of the judiciary, as well as each party’s right to a public hearing obtained through a transparent process.
Further, under no circumstances should one lawyer be communicating with the court without advising opposing counsel. Best practice is to circulate a draft of the intended communication to the court to opposing counsel before it is sent. In many cases the communication may be made jointly, if there is sign-off from the other side in respect of the subject of the communication. At a minimum, all other parties to the litigation should be copied on all communications to the court.
None of us are infallible. I, for one, most certainly am not. However, we all have plenty of resources readily available to help us maintain professionalism in the practice of law. Each law society has its own rules of professional conduct, and the Canadian Bar Association has also produced a uniform code of professional conduct. It’s worth taking the time to periodically refresh your memory and to check for changes or updates — they are online.
If that little voice in the back of your head is questioning whether some course of action you are planning to undertake is really prudent, then stop and listen to it. That voice is usually right. Consider making use of the law societies’ mentoring programs or practice management resources if you are practising on your own or in a small shop where easy access to a sounding board is not otherwise available. Or pick up the phone and call a colleague or a senior member of your local bar who practises in your field. I am sure they will be happy to hear from you and will make the time to help shepherd you through any professionalism or ethical issues you may have.