Ethically speaking, don't always defer to your elders

Philip Slayton
Starting a legal career is daunting, whether you begin as a big-firm associate, member of a small partnership, solo practitioner, government lawyer, or in-house counsel; whether you start out on Bay Street, in the burbs, or on a country road.
Young lawyers worry about getting clients, billing enough hours, impressing their boss, paying the rent, building a reputation, developing expertise, and having a future. Ethical issues don’t appear nearly as pressing. If an ethical problem comes up, it seems natural and smart to defer to a senior lawyer in the firm or company, or to consult the law society, or ask some wise legal mentor. After all, if you’re just starting out, what do you know?

But, deferring on ethical matters to a lawyer who sports the proverbial grey hair is not necessarily a good idea. Just because someone has been around a long time doesn’t mean that he has a high ethical IQ or his ethical sensibilities have been refined and honed by a long legal career. Quite the contrary, perhaps. Years on the battlefield may have taught a lawyer to be a brutal realist, to take no prisoners, to be ruthless in advancing his clients’ interests, to ignore what seem to be exquisite and pointless issues of right and wrong, not to be overly “academic” in his or her approach, or to emphasize income rather than ethical sensibility. Innocence may have been lost a long time ago.

I don’t think young lawyers should defer to their elders, or, if they do, they should be very careful about it. Here’s a better idea for someone starting out: Listen to your inner voice. I know this sounds like trivial advice from a paperback bestseller or TV pop psychologist. But, although ethical issues can have a technical side (e.g., “how should this law society practice rule be interpreted?”), they are really about applying your community’s shared standards and morality and a common view of good sense. Those things are learned from family and friends, in school, at the hockey rink, and from reading and private rumination. Every good citizen has a general sense of right and wrong.

Conflicts problems are an example. Lawyers know they must avoid conflicting interests in their practice, but what’s a “conflicting interest?” To paraphrase Rule 2.04(1) of the Law Society of Upper Canada’s Rules of Professional Conduct, a “conflicting interest” is “an interest that would be likely to affect adversely a lawyer’s judgment on behalf of, or loyalty to, a client or prospective client, or that a lawyer might be prompted to prefer to the interests of a client or prospective client.” All provincial law societies have much the same practice rules about conflicts. There are lots and lots of these rules, and commentaries on them, and, of course, cases (most notably the 2002 Supreme Court of Canada decision in R. v. Neil). It’s not long before we’re spinning intricate webs of legal rhetoric, but the rhetoric is likely to be confusing, if not misleading. Most times, left to his or her own devices, the sensible lawyer will instinctively recognize a conflict of interest and doesn’t need theory to do so. U.S. Supreme Court Justice Potter Stewart said in the 1964 hardcore pornography case Jacobellis v. Ohio that he couldn’t define it but, “I know it when I see it.” It’s the same with conflicts.

A youngish lawyer told me the following story: His large firm represented a public company and, separately, the CEO and chairman of that company, who was also a substantial shareholder. The company got into financial difficulty through bad management and needed to be reorganized to survive, a reorganization that would inflict pain on shareholders. My youngish friend went to the senior partner who acted for both the company and the CEO, and inquired how it was possible, in these circumstances, to act for both, since there seemed to be clearly conflicting interests. “It’s as if there is a building with two entrance doors,” said the senior partner, determined to hang on to both clients. “Two doors, yes, but each door opens into the same building.” My friend wasn’t buying this mysterious metaphor; he knew a conflict when he saw it, and, at some cost to his career within the firm, pursued the issue until the firm’s executive committee decided that one of the two clients had to go.

What mattered was gut instinct, not fancy reasoning. What often makes conflicts issues like these so troublesome is that ethical and business demands clash. Faced with what might be a conflict, the right thing may be to refuse a potential client or send an existing one to another lawyer, but that means losing revenue which is a tough thing to do.

The ethics/business dilemma is not restricted to conflicts; it is pervasive in the practice of law. Mark Everson recently published a poignant op-ed piece on the issue in The New York Times. Everson, an accountant and former commissioner of the U.S. Internal Revenue Service, wrote that once “the mission of the junior accountant or lawyer was clear to all: help clients adhere to professional standards and follow the law.” Now, he says, accountants and lawyers “see their practices not as independent firms that strengthen the integrity of capitalism, but as businesses measured chiefly by the earnings of their partners.” Everson suggests this ethical sea of change throws into doubt such fundamental concepts as attorney-client privilege as it applies to corporations.

Ethical considerations often pull one way, business interests another. That’s the biggest problem that most young lawyers will have to face, and the advice of senior lawyers may not be reliable in this matter. So, I come back to my general point: listen to your inner voice. Have faith in your personal ethical instincts, and be suspicious of what legal sophisticates may present as the way of the world. Ethics is a deeply personal business, and you’re as good a judge — maybe better — than anyone else.

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