Law society oversight of lawyers’ private conduct justified

  • September 30, 2020

Proposed amendments to the Federation of Law Societies of Canada’s Model Code of Conduct raise an intriguing and controversial question: Do law societies have an oversight role to play in the private lives of licensed practitioners?

It’s a question to which the CBA answers “yes, and for good reason.”

Earlier this year the FLSC distributed a consultation report seeking feedback on draft amendments to the Model Code addressing the duties related to non-discrimination and harassment and ex parte communications with courts and tribunals.

The FLSC’s Committee tasked with reviewing the code “took into account the considerable empirical and anecdotal evidence that discrimination, harassment and bullying remain prevalent in the legal profession,” and “determined that it was essential to clarify the harassment and discrimination provisions of the Model Code and to include specific guidance on bullying.”

The amendments to Section 6.3 of the code include a reminder of lawyers’ obligations not to discriminate against, harass or bully others, and to uphold human rights principles in dealing with others. Also added in the Commentary on this section is an item which reads, “For clarity, this rule is not limited to conduct related to, or performed in, the lawyer’s office or legal practice.”

“(T)his is consistent with the Commentary to Rule 2.1-1 (Integrity) which specifies that ‘[d]ishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice,’” the FLSC says in its consultation report. “The Commentary to Rule 2.1-1 makes it clear that law societies may take disciplinary action for acts outside the professional sphere.”

While this provision has been met with opposition by those who consider it to be overreach on the part of the law societies, the CBA’s Equality Subcommittee and Ethics and Professional Responsibility Subcommittee both consider it to be reasonable given lawyers’ “unique position” in society.

“We believe that the public’s confidence in the administration of justice and the rule of law may be eroded by a lawyer’s improper conduct outside of their legal office or practice,” the subcommittees say in their submission, while acknowledging that there are differing views on this within the profession.

“Law is a self-governing profession, so lawyers must exercise their powers in the public interest. It is therefore appropriate for the Model Code to expand on what constitutes discrimination, harassment, and sexual harassment to set standards for lawyers’ conduct in all cases.”