Heather Ross Click here to see full sized version.

A Law Society of Upper Canada (LSUC) Bencher has said she is appalled by a proposed retreat by the LSUC from ethics teaching in the Bar Admissions program. “I think it is a retrograde step... We are doing the wrong thing. We are betraying the profession,” said Bencher Heather Ross at a recent conference on legal ethics.

Paul Paton, a professor at Queen’s University’s faculty of law, who served on an advisory committee on the future of the  Bar Admissions program, also questioned why the committee was abruptly disbanded this spring. Paton speculated that financial considerations influenced the LSUC’s proposal to “eliminate so much of the important mentoring that went on, through exposure to people in practice at that important transition [admission to the Bar].”

This discussion took place at a recent conference sponsored by the University of Toronto’s new Centre for Professionalism, Ethics and Public Service entitled “Can Legal Ethics Be Taught?”
Traditionally, the Law Society of Upper Canada (LSUC) has shouldered some responsibility for legal ethics education in Ontario. However, the January 2008 report of its Licensing and Accreditation Task Force contained a proposal to “discontinue the professional responsibility and skills program of the licensing process” as one option in an overall program of Bar Admission reform. The task force has set a May 31 deadline for comments.

The Licensing and Accreditation Task Force cited a different reason for its proposal than saving money: that law school skills programs already cover most of the content that makes up its own program. Osgoode Hall Law School Professor Allan Hutchinson, however, warned that current law school programs are not taking up the LSUC’s slack: “the fact that we DON’T teach legal ethics is a way of teaching it. We send out a silent message to our students that says, ‘it’s really not that important’.”

Conference panelists also identified some practical difficulties in delivering a complete and effective ethics program in law schools. Joseph Cheng, a civil litigator with the public law section of the Department of Justice, highlighted the challenges of teaching ethics to students who lack practical experience, noting that the importance of ethics “really hits you in the first couple of years of practice. The practical ramifications of each of the decisions we’ve made, as we get into practice, help shape how we do things, and the challenge is, how do you work that back? How do you weave that into the law school curriculum?”

Professor Alice Woolley of Calgary’s Faculty of Law expressed concern that law school-based compulsory ethics courses might become overly doctrinal — with a narrow focus on professional conduct rules. Professor Rand Graham of Western’s Faculty of Law agreed, but added that “academic legal ethicists should not be cheerleaders for particular core values... their goals should be to challenge and to undermine. Everything that is discussed in an ethics class should be a fight.”

Regardless of the content or quality of ethics teaching in law schools, Hutchinson wondered if any law school-based program could fully prepare students for practice: “legal ethics, and what it asks of people, varies tremendously depending upon their institutional location. There are big differences between being a sole practitioner in Cochrane, and being part of a megafirm on Bay Street.”

A panel of practitioners helped identify those differences. Avvy Go, a public interest lawyer with the Metro Chinese and Southeast Asian Legal Clinic, described her view of ethical lawyering very broadly: “Ethics is not just about how you deal with your client; it’s about how you function in society.

Because my clients are among the most vulnerable people in society, they are also the most vulnerable to unethical, unprofessional practice by lawyers, consultants and others.”

Jeremy Fraiberg, a business law solicitor with Osler Hoskin & Harcourt LLP, focused instead on the narrower values of duties of civility, of professionalism and fair dealing, and of respect for the law and the administration of justice. “Those values,” he explained, “are neutral with respect to your views on things like the redistribution of wealth... they are more akin to process values. While it’s important to lead an examined life, to be a good lawyer, it’s more important to adhere to these more specific values, which can be taught – and should be taught – in law school.”

Learning to handle these career-path-specific ethical issues is, in Paton’s words, a lifelong journey. Panelists expressed doubt that an ethics education that ends with law school would provide sufficient guidance. Said Woolley: “it’s easy [for LSUC] to walk away and not take on certain roles, but... who’s going to take on communicating those values? The law schools can only do it to a certain extent. [Academics] are not the people out there practising. We are not the most effective inculcators of the public values of lawyering... The profession has to be really engaged with what they are going to do to make sure that that happens.”

Freya Kristjanson, a civil litigator at Borden Ladner Gervais LLP, reported that “ethical support” is readily available in large firms, both in the form of mentoring from colleagues, and educational initiatives like seminars. She added that when she does pro bono work representing clients at disciplinary hearings, those clients tend to come from “one-person law offices, where they’ve never had anyone to run issues by, never knew what to do when they got into trouble, whether with money or drugs or alcohol. And they’re the people who don’t have the support... building an ethical structure for these ‘orphans’ of the profession is a tough one.”

Janine Benedet, a professor at the University of British Columbia’s faculty of law, however, warned of the dangers of nostalgically expecting “the bright lights of the profession” to provide mentorship and guidance, or even to demonstrate an ethical standard worthy of emulation. Cheng added that new lawyers are partly responsible for seeking out their own mentors, and for identifying the areas in which they need guidance.