Even the most ethical sometimes cheat a little

Even the most ethical sometimes cheat a little
‘When you are acting for a corporation, the organization is the client — not the shareholders, officers, or employees,’ says Edgar Schidt.
“There is a little bit of larceny in all of us.”

That was general counsel and corporate secretary at the Winnipeg Airports Authority Inc.’s Jim McLandress’ take on research that shows while most people think of themselves as honest and ethical, they will cheat in small ways if given the opportunity and rationalize their behaviour.

He reported on research that suggests that up to 75 per cent of people have at some point acted in an unethical manner, and that’s something in-house counsel need to keep in mind.

The rules for an in-house counsel are straightforward when employees go over to the “dark side,” McLandress noted.

“If I learn that a client or an employee has acted or intends to act illegally, through an act of commission or omission, the proper thing to do is to go up the corporate ladder to the point where someone in authority takes action. If I have gone as high as the president or CEO and no one will take action to resolve the matter, my only option is to resign.”

McLandress was one of 50 Manitoba lawyers that attended an Oct. 17 symposium on ethics and professionalism hosted by the University of Manitoba Faculty of Law, entitled “Client Conduct That Violates the Law: What is a Good Lawyer to Do?” The first-time event was part of the faculty’s ongoing celebration of 100 years of legal education in Manitoba.

In her remarks in the program accompanying the symposium, Robson Hall law school dean Lorna Turnbull noted, “our ethical standards are at the heart of our professional identities, wherever our law degrees may have taken us over our careers. This symposium provides us the opportunity to reflect on that identity by hearing from four thoughtful and challenging speakers.”

Edgar Schmidt is one of those figures McLandress noted who was not willing to let his employer slough off his questions and simply go along to get along. Schmidt was a lawyer with the federal Justice Department. His role was to read through proposed legislation to ensure that it was in line with the Constitution and Charter of Rights and Freedoms before being introduced in the House of Commons.

Schmidt joined the federal bureaucracy in 1998. After a couple of years in what was then Indian Affairs and Northern Development, he transferred to the Department of Justice where he became the general counsel in the legislative services branch.

At the symposium, Schmidt explained his concern was with the wording of s. 4.1 of the 1985 Department of Justice Act. It requires a “considered opinion as to whether any provision of the relevant legislation is more-likely-than-not inconsistent with the Charter. But he said that was not the way the government was interpreting the wording.

The government’s preferred approach, according to Schmidt, was it should be able to introduce any bill into Parliament as long as there was even a faint hope it might be passed even if it was inconsistent with the Constitution and the Charter.

“To me,” he said, “that faint hope argument was so much double talk. I had only been in the department for three or four years and still fairly junior when I first brought up this issue. Everyone was telling me just to keep quiet about it. But I am not easily swayed by arguments that don’t appeal to logic or reason.”

For 10 years, Schmidt continued to research his point of view and ask questions for which he wasn’t receiving any satisfactory answers. Finally, in 2012, having exhausted all his avenues internally, he took his question to the Federal Court, seeking declarations on the correct interpretation of statutory provisions used to assess whether proposed legislation complies with the Charter or Bill of Rights. The very next day, he was suspended from his job without pay while the federal government fought him in court.

Schmidt noted he wasn’t seeking any financial compensation. He just wanted a clear-cut ruling on the legality of the way the government was handling the question and a clarification as to what his responsibilities are.

“When you are acting for a corporation,” Schmidt pointed out, “the organization is the client — not the shareholders, officers, or employees. You have to be aware of any discrepancy between the interest of the client and those of individuals connected to the client/organization.”

Echoing McLandress, Schmidt pointed out when a client proposes to act illegally, the lawyer’s duty is to raise the issue first within the organization by going up the chain of command. If the matter cannot be resolved, then the counsellor has a duty to withdraw his services.

For a public servant, he postulated, the client is the Queen as represented by the state and the governor general. “We swear our oath of allegiance to the Queen,” he noted. “And the attorney general is the chief litigation officer for the state and must act in the interest of the state, not the prime minister.”

 Providing the viewpoint of ethical behaviour for criminal lawyers during the symposium was Roberta. Campbell of Campbell Gunn Innes. While everyone is, in theory, innocent until proven guilty in our system, she noted, one question criminal lawyers have to contend with is how do you defend clients you know are guilty.

“I would argue that everyone deserves a fair trial,” she said. “As a criminal lawyer, I act as one of the checks and balances in the system, making sure that everyone else does their job right.

“Fortunately, most clients will say that they didn’t do it.”

Solicitor-client confidentiality, she pointed out, is a major aspect of practising criminal law. That rule can only be breached when imminent death or bodily harm is involved or when a client is threatening his lawyer or lawyer’s family.

If a client informs Campbell that he will commit perjury should he be called to testify, she will not call him to the stand. If he insists, then she should send him to find another lawyer.

The last speaker was Justice Murray Sinclair of the Manitoba Court of Queen’s Bench. Sinclair is best known as the co-chairman of Manitoba’s Aboriginal residential school inquiry and the head of the ongoing Truth and Reconciliation Commission of Canada.

Regrettably, Sinclair says he’s seen too many not acquitting themselves well ethically when it comes to serving the tens of thousands of Aboriginal clients eligible to file for compensation under the Independent Assessment Process, for physical and sexual abuse they suffered while wards of the residential school. Sinclair pointed out most lawyers only meet their Aboriginal clients for the first time in court and have little or no understanding of Aboriginal culture.

While lawyers can claim 15 per cent of the client’s settlement in fees and appeal for an additional 15 per cent from the court, many lawyers are simply having clients sign over an additional 15 per cent.

Some lawyers, he reported, are also lending their clients money and charging interest or additional fees.

“There are also allegations of lawyers falsifying claims on behalf of Aboriginal clients who were not in residential schools,” Sinclair said. “Only six lawyers across the country thus far have been charged in relation to these abuses. Considering the number of claims, it’s a small number — but it is really sad that there are any cases.”

He noted that Quebec requires lawyers to take Aboriginal cultural awareness sessions and hopes that other provinces will follow suit.

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