Effectively navigating ethical pitfalls

  • April 20, 2017
  • James Careless

Ethical Trap

Ethical pitfalls are an ever-present peril for lawyers and law firms. If not navigated effectively, they can swallow the careers of law firm leaders and the practices they manage.

Dealing with ethical pitfalls starts with understanding the threat they can pose. Armed with this knowledge, you can then develop, implement and sustain proactive policies that minimize the number of ethical pitfalls that could confront your firm.

A plethora of pitfalls           

Unfortunately, there are many ethical pitfalls that unsuspecting lawyers can fall into.

“The most common ethical pitfall in a large firm is conflicts of interest, namely whether or not the firm can act in a particular situation,” said Malcolm Mercer. He is a partner and general counsel with McCarthy Tétrault’s Litigation Group in Toronto, a bencher of the Law Society of Upper Canada, and past Chair of the CBA’s Ethics and Professional Responsibility Committee. On top of conflict of interest, there can also be issues involving questions of candour, confidentiality and privilege.

“Questions about how to respond to audit inquiries are not uncommon,” he added. “Uncommonly, issues arise with respect to whether we are allowed assist a client in a particular matter. Rarely there are questions about whether a member of the firm has acted improperly and, if so, what to do about that.”

And that’s just for starters.

“Ethical pitfalls can occur when clients aren’t giving you the whole story, asking you to take unreasonable positions or positions that you know are not correct, or fail to provide an adequate retainer so that you can perform your duties for them properly,” said Paul Schabas, a partner with Toronto’s Blake, Cassels & Graydon LLP, and Treasurer of The Law Society of Upper Canada. “Those are the ethical alarm bells that should ring right away, if you don’t have a full and open relationship with the client.”

Being proactive

There are many ways to proactively minimize your firm’s exposure to ethical pitfalls.

Protection begins with developing – and enforcing – a comprehensive policy for identifying, avoiding, and addressing potential ethical pitfalls before they arise. “Policies and procedures are important because they can embed the necessary decision-making in the process,” said Mercer. “For example, a good file opening process can surface issues that need to be examined.”

Implementing an ethics policy isn’t enough, says Kevin Westell, a partner at Sutherland Jette in Vancouver. “It is vital for law firm leaders to serve as models of ethical conduct, to set examples for their juniors and associates to emulate,” he said.

That is a crucial role for managing and senior partners, adds Mercer. “In a firm where lip service is paid to legal ethics by its leaders, the lawyers in the firm act accordingly.”

How do you ensure that your firm’s lawyers are adhering to your ethics policies?

“I would suggest designating someone with the firm to be the ‘point person’ on ethical issues, and to become familiar with the rules of ethical conduct,” said W.A. Derry Millar, counsel at Toronto’s WeirFoulds LLP, and a former Treasurer of The Law Society of Upper Canada. “This person is someone safe that the firm’s lawyers can talk about any ethical issues, and to get help in addressing these issues promptly.”

This said, it may not be easy for law firm leaders to develop their own ethics policies and support mechanisms, simply because they don’t know how. “Similarly, lawyers in firms of all sizes may not easily recognize the myriad ethical situations that lawyers face on a daily basis,” said Pierre Champagne; a partner in Gowling WLG’s Ottawa office. “After all, this is not something we spent a lot of time on in law school.”

To bridge this ethical gap, Champagne and Elizabeth Aspinall, Practise Advisor for the Law Society of Alberta, have developed an online webinar entitled Top 10 Ethical Traps that Litigators Should Avoid, which will be held May 18. “This webinar will help law firm leaders and lawyers develop strategies for resolving such ethical traps as conflicts of interest, removal or withdrawing as counsel of record, and obligations on the transfer of client files between lawyers, among many others,” Champagne said.

The webinar will also address ethical issues such as discourtesy, and what appears to be a growing trend among lawyers to complain about each other, Aspinall added. “When I was an associate at a firm, we were always taught that you call the lawyer on the other side your friend, because they’re the only real friend you have in the courtroom. Things have since changed in this regard, and not for the better.”

Navigating pitfalls

When ethical pitfalls do appear, it is vital for law firm leaders to address and resolve the issue immediately.

“In my experience, large firms address any ethical pitfalls they encounter,” said Schabas. “Any lapses tend to arise with solo practitioners struggling to find clients and make ends meet. Some can be tempted to cut corners as result, while others who want to act ethically may feel they have no one to turn for help.”

Providing ethical advice is where a lawyer’s own law society can help, via the society’s elected benchers. “It’s always smart to consult a bencher who is knowledgeable in resolving ethical pitfalls,” said Westell. “After all, it’s part of the bencher’s duty to advise to lawyers who need this kind of help.”

As well, professional legal associations such as law societies offer support from practice advisors such as Aspinall. “We deal almost exclusively with ethical and practice issues, and we’re quite busy,” she said. “We field 15-20 calls a day.”

The moral

For their own interest and those of their practices, law firm leaders need to address ethical pitfalls with proactive policies and constant, responsive vigilance. Those that do so will minimize considerable grief and professional fallout for their firms, and themselves.

“I gather C.S. Lewis said that ‘integrity is doing the right thing even when no one is watching’,” said Schabas. “Lawyers need to be sure they embed that in what they do too.”

James Careless is a frequent contributor to CBA PracticeLink.

Self-Evaluation Tool

Want to know what kind of ethical shape your firm is in? Try using the Ethical Practices Self-Evaluation Tool which was designed by the CBA’s Ethics and Professional Responsibility Committee to “encourage your firm to explore and discuss legal practices.”