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Legal Ethics and Professional Responsibility CML1105G Professor Adam Dodek

Legal Ethics and Professional Responsibility CML1105G Professor Adam Dodek. Class 3 & 4 The Formation of the Lawyer-Client Relationship. What are we going to do today/this week?. Defining Features of the Lawyer-Client Relationship Overview of the Lawyer-Client Relationship

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Legal Ethics and Professional Responsibility CML1105G Professor Adam Dodek

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  1. Legal Ethics and Professional Responsibility CML1105GProfessor Adam Dodek Class 3 & 4 The Formation of the Lawyer-Client Relationship

  2. What are we going to do today/this week? • Defining Features of the Lawyer-Client Relationship • Overview of the Lawyer-Client Relationship • The Formation of the Lawyer-Client Relationship I: • Advertising and Solicitation • The Big Decision – Choice of Client and Access to Justice; Competency • Sign up for paper topics by end of day Wednesday Legal Ethics, Feb. 8 & 9, 2011

  3. The Three Historical Cardinal Sins of Lawyering • Maintenance – maintaining, supporting or promoting another person’s lawsuit (i.e. stirring up litigation) • Champerty– A specific form of maintenance wherein a lawyer pursues a party’s claim in consideration for receiving part of the judgment • Barratry – The offence of frequently exciting or stirring up groundless lawsuits Legal Ethics, Feb. 8 & 9, 2011

  4. Formation of the Lawyer-Client Relationship • Advertising, solicitation, choice of clients and accessibility of legal services • Professionalism v. Commercialism • CJO “Elements of Professionalism” • Scholarship, Integrity, honour, leadership, independence, pride, spirit, collegiality, service and balanced commercialism • Equality? Diversity? Multiculturalism? Recall Backhouse and Cairns-Way Legal Ethics, Feb. 8 & 9, 2011

  5. Competing concerns • Idea of obligation to make legal services available • Market Norms • “Lawyers should make legal services available to the public in an efficient and convenient matter that will command respect and confidence, and by means that are compatible with the integrity, independence and effectiveness of the profession.” (CBA Code, c. XIV) • LSUC Rules, Rule 3.01 Making Legal Services Available Legal Ethics, Feb. 8 & 9, 2011

  6. What is Advertising? • “Marketing Legal Services” • “Marketing Activity” • LSUC Rule 3 Marketing Legal Services 3.02 (1) In this Rule, "marketing" includes advertisements and other similar communications in various media as well as firm names (including trade names), letterhead, business cards and logos. Legal Ethics, Feb. 8 & 9, 2011

  7. Different types of advertisements • Billboard • Yellow Pages • Print / newspapers / other publications • Websites • Lawyer Referral Services (Bar Association / Internet) • Radio / Television / YouTube • Infomercials – see www.taxamnesty.ca • Newsletters/Blogs • Lawyer Classified / Craigslist? Legal Ethics, Feb. 8 & 9, 2011

  8. Advertising • Clash of paradigms: Promoting access to justice v. selling soap (commodification) • Promote consumer choice? Branding? • CBA Guiding Principles (GP), c. XIV (Text 130) / LSUC Rule 3 • GP 8 – response to Jabour • How is someone who needs a lawyer going to find one? • Which lawyers advertise? • Who are the target groups or markets? • Clients – corporate, high, middle and low-income • Other lawyers – referrals; recruiting (or poaching) • Law schools, law students • Others? Legal Ethics, Feb. 8 & 9, 2011

  9. Advertising: The Good, the Bad and the Ugly • What are the sources for ethical evaluation of lawyer advertising? • Rules – re advertising • Other rules – duties to other lawyers, to the profession, non-discrimination • LSUC Rule 3.02 (2)A lawyer may market legal services if the marketing (a) is demonstrably true, accurate and verifiable, (b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and (c) is in the best interests of the public and is consistent with a high standard of professionalism. Legal Ethics, Feb. 8 & 9, 2011

  10. LSUC Commentary on Rule 3.02 Examples of marketing that may contravene this rule include: • a. stating an amount of money that the lawyer has recovered for a client or referring to the lawyer's degree of success in past cases, unless such statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases; • b. suggesting qualitative superiority to other lawyers; • c. raising expectations unjustifiably; • d. suggesting or implying the lawyer is aggressive; • e. disparaging or demeaning other persons, groups, organizations or institutions; • f. taking advantage of a vulnerable person or group; • g. using testimonials or endorsements which contain emotional appeals. Legal Ethics, Feb. 8 & 9, 2011

  11. The evolution (?) of Advertising . . . • Donald Jabour (1982)  Rocket (1990) • USA: Bates v. State Bar of Arizona (1977) • Jacoby & Meyers • http://www.youtube.com/watch?v=eQbsPH3jt3Q • http://www.youtube.com/watch?v=88rsHIJ9J00&feature=related • http://www.youtube.com/watch?v=F5bFyWAgY1w Legal Ethics, Feb. 8 & 9, 2011

  12. Lawyer Idol: Round I - Personal Injury • Toronto Slip and Fall (Bergel) http://www.bergellaw.com/slip-fall-personal-injury-claim.htm • Neinstein • http://www.neinstein.com/expertise/slip-and-fall • Personal Injury Lawyer Rap? • http://www.youtube.com/watch?v=PBEWHy6khZw • Lowell “The Hammer” Stanley • http://www.youtube.com/watch?v=62xreSr25uI&NR=1 Legal Ethics, Feb. 8 & 9, 2011

  13. More Personal Injury • “For the People” http://www.forthepeople.com/settlements_auto_accidents.htm • The Bully Lawyer http://www.youtube.com/watch?v=AlarMN5SCs4&NR=1 • Recall Donald Jabour Legal Ethics, Feb. 8 & 9, 2011

  14. Round 2 – North-South Battle • Barrister Sonia Virk, Surrey, BC • http://www.youtube.com/watch?v=ohNDq72kloo • “I Fix Problems” • http://www.youtube.com/watch?v=An0xB6pomp0&feature=related • “The choice of a lawyer is an important decision and should not be based solely upon advertisements. Gross amounts referenced are before fees and expenses. Past results afford no guarantees of future results. Every case is different and must be judged on its own merits. Co-counsel may be utilized depending upon the nature of the inquiry and jurisdiction.” • “Lock and Load” http://www.youtube.com/watch?v=XOajzfDQbKU&NR=1 Legal Ethics, Feb. 8 & 9, 2011

  15. Life is Short, Get a Divorce (?) (!!!) • Life is Short, Get a Divorce (Billboards) http://www.lifeshortgetadivorce.com/ • http://www.fgalawfirm.com/index.html • Explanation http://www.fgalawfirm.com/articles/press.PDF • Interview http://video.msn.com/video.aspx/?mkt=en-us&brand=msnbc&fg=email&vid=61c06760-67a4-49a2-904b-c103e97491dc&from=00 • SWAG - http://www.lifeshortgetadivorce.com/products.html • Recall Maintenance, Champetry & Barratry… Legal Ethics, Feb. 8 & 9, 2011

  16. Family Law . . . • Don’t Be a Weekend Parent http://www.youtube.com/watch?v=BDRBH-GQ_fg&feature=related • Arguably the best lawyer in Toronto? http://www.irvingsolnik.com/?gclid=COGB7ZaF0JgCFQZinAod-wqzzw • DivorceEZ - http://www.youtube.com/watch?v=JXiJQVyLelM • Chopsticks? http://www.advertolog.com/divorce-lawyer/print-outdoor/chopsticks-11963705/ • Business Card???? http://www.advertolog.com/divorce-lawyer/print-outdoor/business-card-11089355/ Legal Ethics, Feb. 8 & 9, 2011

  17. Classified and Print Ads • WAS HIShttp://2.bp.blogspot.com/_2oq2bSN-S9o/RjZ681OGbOI/AAAAAAAAACc/QxDvh9oH7rc/s1600-h/washis.jpg • Roar! https://mail.uottawa.ca/OWA/redir.aspx?C=c3a22be6f9304534b9f7800b709bae9d&URL=http%3a%2f%2fcdnlawyerinhouse.clbmedia.dgtlpub.com%2f2011%2f2011-02-28%2fhome.php%3fpage_view%3d8 • Peter “P’Ta Mon” John, “The Thugs Lawyer”http://lawyerist.com/a-study-in-marketing-peter-pta-mon-john-the-thugs-lawyer/ Legal Ethics, Feb. 8 & 9, 2011

  18. Legal Ethics, Feb. 8 & 9, 2011

  19. Criminal • Yellow Pages • “Friends don’t let friends plead guilty” http://www.topgundui.com/video/player/41786-introduction • Top 10 Reasons • http://www.privatedefender4u.com/Do_You_Need_a_Lawyer.html • Canadian entrepreneurship Legal Ethics, Feb. 8 & 9, 2011

  20. Lawyer Referral Networks . . . • Hurt 911 - http://www.hurt911.org/ • Lawyershop.ca http://www.lawyershop.ca/ • Find a Lawyer http://www.findlawyerattorney.com/ • Lawyerahead.ca - ? http://www.youtube.com/watch?v=Bc0mnMbVL2Q&NR=1 • LSUC Lawyer Referral Service http://www.lsuc.on.ca/public/a/faqs---lawyer-referral-service/ Legal Ethics, Feb. 8 & 9, 2011

  21. What about Law Firm Ads aimed at students / public? • Osler Lawyer on a motorcycle? • Is it ethical for law firms to use models in their advertisements? • Faux diversity . . .? Misleading? • What are law firms trying to convey to you? Legal Ethics, Feb. 8 & 9, 2011

  22. Modern Forms of Advertising • Blogs / wikis / Facebook / YouTube / Other? • Should law societies be concerned about these? • Where are we going in the future of lawyer advertising? Legal Ethics, Feb. 8 & 9, 2011

  23. Solicitation • Specific form of advertising • Maintenance/Barratry • Competing concerns: • Making people aware of their rights who might not otherwise act upon them v. taking advantage of vulnerable • Frivolous litigation v. social change (NAACP) • LSS v. Merchant (135-146) • Compare penalty to Jabour • Notes and Questions pp. 146-47 Legal Ethics, Feb. 8 & 9, 2011

  24. Different Forms of Solicitation • In-person (“The Ambulance Chaser”) • Letter • Direct e-mail (spam?) • Pop-ups Legal Ethics, Feb. 8 & 9, 2011

  25. Self-Promotion • Lawyers in the Media / Talking Heads etc. • Competing considerations Legal Ethics, Feb. 8 & 9, 2011

  26. The Lawyer Client Relationship • Formation of the Lawyer-Client Relationship • Advertising • Solicitation • Choice of Client • Accessibility of Legal Services • Competency – Are you up for the job? Legal Ethics, Feb. 8 & 9, 2011

  27. Moral Non-Accountability or “Taking it Personally”? • Thank You for Smoking • What are the parallels between a lobbyist for big tobacco and lawyers? • “Moral flexibility” – idea that to be a lawyer you need to subordinate your morals / your everyday morality in order to advance the interests of a client? Legal Ethics, Feb. 8 & 9, 2011

  28. Ethical Crossroads in your Career • Choice of Client . . . • What to do when a client wants you do something that may not be illegal or improper but makes you uneasy or you think is unethical or immoral? • What do when a partner asks you do something . . .? • Choice of job is the single most important ethical decision you will make in your career • What field are you going to work in? • What firm/organization/etc are you going to work for? • Everyone is entitled to a lawyer…but no one is entitled to you as a lawyer. • What sort of lawyer are you going to be? Legal Ethics, Feb. 8 & 9, 2011

  29. Choice of Client • Moral non-accountability v. taking it personally • Moral non-accountability - emphasizes structure/procedure • Lawyer as the guide through the maze of the justice system • Lawyer is the advocate not the judge • Social good that promotes the fair administration of justice • Moral Accountability / Taking it Personally • Law is an instrument of power • Costs and benefits to choices made in legal practice • Lawyers need to take responsibility for their choice of clients and for the strategies they deploy Legal Ethics, Feb. 8 & 9, 2011

  30. Moral (non-) Accountability • Edward Greenspan, Greenspan: The Case for the Defence (non-accountability) • Allan Hutchinson / Trevor Farrow (accountability) • Michel Proulx & David Layton (text 165) • Some discretion • Severe personal distaste • Hutchinson’s version of “the Talk” (166) • Group Discussion: Hutchinson v. Proulx & Layton • Discussion: Notes and Questions 167 Legal Ethics, Feb. 8 & 9, 2011

  31. Client selection / discrimination • Discussion question – Text 168 • Permissible v. Prohibited Discrimination (Discrimination v. discrimination) • “source of income” • Lawyers advertising – what sorts of client selection / discrimination do you think they employ? • Question 1 – page 169 – what is the effect of chapter 20? • Group work: Scenarios 1-2, 3-4, 5-6 Legal Ethics, Feb. 8 & 9, 2011

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