Canterbury Law Review
It is a very great honour to have been invited to give this, the 10th Williamson Lecture. As most of you will know, the Lecture has been delivered on previous occasions by very distinguished members of the legal profession and judiciary — two Chief Justices of New Zealand, including, three years ago, Chief Justice Sian Elias — and I do not think I deserve to have my name mentioned in their company.
I should at the outset describe for you the loftiness of my commitment to this lecture, and issue one disclaimer. With respect to loftiness, I have a colleague back home in Canada who was asked, once, to teach the law school's course in the Law of Wills. He did so, and at the end of the course distributed evaluations so that the students could evaluate his performance. He told me that he got the most accurate and honest evaluation ever from one student who wrote, 'With respect to the Wills course, Professor McConnell did the best he could'. Essentially, that is my promise to you tonight. To do the best I can!
Now the disclaimer. What I will say this evening does not necessarily represent the opinions of the Law Society of Saskatchewan, of which I am a member of the governing body. Nor do my remarks necessarily represent the opinions of the College of Law or the University of Saskatchewan, where I presently work. Nor do they necessarily represent my own opinions!
Before I begin my formal remarks, I would like to say a word about Neil Williamson. I do not believe I ever had the opportunity to meet Neil Williamson. But I have read a good deal about him, most notably in relation to the Williamson Lectures, and I have asked about him among my temporary colleagues at Canterbury. What I have read and heard has made me doubly honoured to be speaking to you tonight. By every account that has been shared with me, without exception, I learned that Neil Williamson was a distinguished lawyer and a fine human being, highly skilled, highly professional and an extremely decent and humble person. He carried all of this, his skills, his decency and his humility, to the bench, where he served, all too briefly, before he passed away. I said at the outset that I do not believe I ever met Neil Williamson. I am slightly hesitant to be definitive in that respect. I have visited New Zealand six times, counting this visit, and have met with many lawyers and judges on each visit. The universal warmth and courtesy with which I have been treated suggests either that Neil was one of those with whom I met on one of those prior occasions, or that his values and personal attributes are widely shared among the legal profession and judiciary in New Zealand. I hope that both are true.
I propose to speak about two dimensions of the 'public interest' dimension of lawyering. The first is the challenge faced by virtue of the 'role' and 'nature' of the client. In the first section, I shall posit that for lawyers acting in certain capacities the lawyering role is in the process of being redefined in ways that are coming to require the lawyer to take into account, in an explicit way, a certain 'public interest' dimension of his or her work on behalf of the client. In this part of my talk I will focus on lawyers working in government, though there may be other contexts where a similar 'role' requirement calls for a similar consideration of public interest factors.
The second aspect of my remarks will relate less to any specific lawyering role, but to the evolving 'public interest' dimensions of a lawyer's ethical and, in some cases, legal obligations to clients in general.
To set the stage for my two theses, I want to offer a few words about the conventional paradigm of the role of a lawyer in common law jurisdictions. This conventional paradigm will be well known to you.
It starts with a reflection on the duties a lawyer owes to his or her client. If you will forgive a somewhat parochial Canadian reference in this respect, the Supreme Court of Canada in 2002 articulated the centrality of these duties, and in particular the duty of loyalty, owed to clients, as well as to the justice system more generally. In R v Neil, our Supreme Court quoted from the oft-cited remarks of Lord Brougham in Queen Caroline's Case to make this point. Binnie J, writing for a unanimous Court, said the following:
Appellant's counsel reminds us of the declaration of an advocate's duty of loyalty made by Henry Brougham, later Lord Chancellor, in his defence of Queen Caroline against the charge of adultery brought against her by her husband, King George IV. He addressed the House of Lords:
[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.These words are far removed in time and place from the legal world in which [the present Appellant] carried on its practice, but the defining principle — the duty of loyalty — is with us still. It endures because it is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained. [citations omitted]. Unless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies. [citations omitted]
Embracing as it does the duty of zealous advocacy and the duty to preserve a client's confidences, a lawyer's obligations to a client in these respects place it on perhaps the highest plane known among the duties of professionals.
Indeed, many Codes of Professional Conduct for lawyers either explicitly or implicitly embrace this commitment to loyalty on behalf of one's client. The Code of Professional Conduct in my own jurisdiction explicitly cites Queen Caroline's Case as a justification for the lawyer's duty of zealous advocacy.
It is ironic that this has happened, both in the jurisprudence and in lawyers' professional norms. Lord Brougham's oration was not actually intended to be an articulation of professional duty. It was a threat to the Monarch that if he proceeded with a bill in Parliament to enable him to divorce the popular Queen Caroline, Brougham would use 'extra-judicial, extra-parliamentary' measures, the disclosure of the King's secret marriage to a Catholic, that would cost him his crown. Indeed, from one point of view, the point of view of 'blackmail', Brougham's speech is anything but professional.
Nevertheless, I think it is important to appreciate the central importance of loyalty to the client and the expectations of a lawyer's zealous advocacy in our legal system.
My reading of some of the perspectives on ethics and professional responsibility in the New Zealand context [and I confess that I am far from being an expert] suggests a very similar orientation in New Zealand. In the second edition of his text, Ethics, Professional Responsibility and the Lawyer, Professor Duncan Webb begins his description of the lawyer-client relationship in this way:
Few contracts of service, other than between lawyer and client, owe such strict duties of loyalty, frankness and confidence to the client. These duties exist by virtue of not only the fiduciary nature of the relationship, but because the professional organisation imposes further stringent duties on lawyers.
This set of duties is captured throughout the existing Rules of Professional Conduct for New Zealand lawyers, as well as in the draft Rules being developed for implementation next year. Indeed, one of the chapters in the draft Rules is entitled 'Loyalty'.
These values are at the centre of the public policy justifications for the lawyer's client-centred role within our adversarial system of justice. For example, we have come to accept that, with some limitations, a lawyer must, as an advocate, devote himself or herself zealously to the advancement of the client's interests in the expectation that his or her adversary will do the same. Indeed, in his seminal text, Modern Legal Ethics, American academic Charles Wolfram attributes the present model of 'zealous partisanship' to the sentiments articulated in Lord Brougham's statement in Queen Caroline's Case. Wolfram argues that this principle of
zealous regard for a client's interests is pivotal because it gives direction to definitions of a lawyer's responsibilities concerning relationships with a client, competence, confidentiality, conflicts of interest, advocacy and counselling.
All of this calls for the lawyer to substantially set aside his or her own values in the pursuit of the lawful objectives of the client.
Wolfram's statement captures not only the somewhat controversial role of the lawyer in representing a client, but also the entitlement of the client to pursue actions favourable to himself or herself, despite the consequences for others. Indeed, the only limitation suggested to qualify this pursuit of self-interest is that the objective and the means used to pursue it not be unlawful. From a lawyer's perspective, the adversary system, a civilized conflict between adversaries in the pursuit of interests at odds with one another, relies on this contest of self-interest to justify conventional lawyering roles and a larger justification of our legal and judicial processes. In large measure this approach is based on the sense that the individual entity owes a duty only to himself or herself or itself. The lawful pursuit of enlightened self-interest is a central tenet of our society and of the consequent design of our legal system.
Nevertheless, the system has its critics, nearly all of whom argue that the system is so client-centred that it too often fails to achieve justice, and that it suffers from too many moral short-comings. These criticisms often revolve around what is sometimes called 'role amorality'. In an oft-quoted passage, Macauley captured the point in the following way:
[Is it] right that a man should, with a wig on his head, and a band around his neck, do for a guinea what, without those appendages, he would think it wicked and infamous to do for an empire[?]
Many of these criticisms are grounded in moral philosophy. This perspective is interesting, at least to those of us who toil in the field of legal ethics, and in my view provides a philosophical foundation for some of the observations that follow. But I wish to reflect on the challenges to the existing paradigm from a somewhat less 'philosophical', perhaps less 'academic', perspective.
In the next two sections of my remarks I will focus upon two quite different aspects of this question. First I will discuss the degree to which 'public interest' values should find their place in the work of lawyers acting for public government, in ways that must be seen to qualify the conventional paradigm of zealous advocacy. In the final section of my remarks, I will examine three situational dilemmas for lawyers associated with solicitor-client confidentiality and potential client wrong-doing, with a view to examining the degree to which a 'public interest' perspective, or obligation, already do, or should, infuse the professional obligations of lawyers, and in a quite different way qualify the conventional advocacy paradigm.
In this section I wish to explore what I will call the 'public interest' dimension of lawyers' work as it relates to the legal and ethical responsibilities of lawyers who provide legal services for public government.
You will recall that in my earlier remarks, and taking Lord Brougham's remark in Queen Caroline's Case as a starting point, I observed that a client is entitled, through the actions of one's lawyer, to pursue actions favourable
to himself or herself, despite the consequences for others. The only limitation suggested to qualify this pursuit of self-interest is that the objective and the means used to pursue it not be unlawful.
Is it different for 'government'? Let us look at the 'client' more closely. My central thesis here is that the very nature of government is different from most other clients, especially 'private' clients, in the sense that, more than any other, governments have a 'representational' dimension that most other clients do not. It is true that many organisations designed to advance the interests of their members have a 'representational' dimension. Without diminishing that perspective, it must surely be the case that public government has this representational dimension. Indeed, one might argue that its 'representational' role, the representation of the interests of its citizens, is the raison d' être for the existence of public government.
Public government, in a certain way then, represents all of its citizens. And in a certain way it could be said that the government's legal and ethical duties extend to 'all citizens'. Admittedly, this can be complicated. One of the critical responsibilities of governments is to make choices among scarce public resources in pursuit of public policy objectives. By definition, this involves a choice between or among competing interests, not all of which can be satisfied. Similarly, governments have a duty to protect taxpayers' resources, in the form of government revenues and government assets, from claims upon them, even from their own citizens. This often requires a choice on the part of government to protect the collective interests of citizens against the claims of one individual citizen.
[I should digress at this point and describe to you how I became interested in this question, and initially thought that I had 'invented' this perspective. Such a belief, in my experience, is always followed by the discovery that others have thought of it more clearly and sooner than I.]
In the 1990s I was asked to conduct an investigation into whether certain public officials had committed 'fraud' in their oversight of a building project in Alberta. Essentially the story is that a company won a bidding contest to build an earth dam across the Paddle River in Alberta. The company that won the bid was inexperienced, put in a hopelessly low bid, and lost about $10 million on the project. They sued and largely lost, but the judge did find for them in one small respect, that the public officials had fraudulently misrepresented the lay of the land with respect to the terrain on which the dam would be built. The government employees knew that their information was inaccurate but never shared this with the contractor. In the litigation neither the government nor their lawyers conceded these points. This stance forced the plaintiffs to prove every aspect of their claim in a trial that lasted 153 days. I was troubled by the lawyers' conduct in putting the plaintiffs to the strict proof of every element of their claim, even those aspects where the government's lawyers knew to a 100% certainty that the claims were legitimate.
When conflict occurs in the private actor, self-interest is entitled to prevail without any special consideration of the interests of the 'other'. A private citizen who is in opposition to such a claim, partly or wholly legitimately, would be entitled to choose self-interest and resist the claim, provided that he or she does so through lawful means. This would entitle such a person, for example, to deny the claim and require the claimant to establish the entitlement in a court of law, or other forum.
Is this the case with public government in terms of duties owed to that 'other', the citizens with whom it is in conflict? Or is there a particular set of obligations owed to those who are part of the collective, representational interest of government but who are also, at the same time, its adversaries in one or other context?
I suggest that governments do owe duties to that 'other'. To take a different view would require us to accept the proposition that a citizen in conflict with his or her government is somehow diminished in his or her citizenship by virtue of the conflict. This does not mean that government is somehow required to accede to any claim made by one of its citizens. But I do think that nature of the government's relationship to that citizen is different from the relationship a private person/disputant would have with that citizen, and that the nature of this relationship shapes the nature of the lawyer's duties in his or her representation of government.
I make this assertion from two perspectives: first from the analogy drawn from the criminal law, the responsibilities owed by public prosecutors to defendants in criminal proceedings; and, second, from a more general sense of the duties owed by representative governments to their citizens, what I would describe as a duty of 'fair dealing'.
Prosecutors represent the state in criminal proceedings. They are legally styled as 'agents of the Crown'. Their role is to review and prosecute allegations of criminal conduct. They are required to do so in the pursuit of fair and just outcomes. This requires an assessment of whether there is sufficient evidence in a case to justify laying charges or proceeding with them, and an assessment of whether the public interest is served in pursuing the charges. As a matter of policy, and perhaps law, prosecutors are not entitled to proceed with charges that do not meet this standard. As well, as a matter of good policy and law, prosecutors are required to disclose to the defence all relevant information in relation to the criminal proceedings, whether it helps or hurts the prosecution's case. This is intended to ensure that a person who is the subject of a prosecution gets a fair trial. It is part of the obligation placed upon the Crown of 'fair dealing' with its citizens in criminal proceedings. This has the consequence of ensuring full disclosure of everything relevant to a prosecution, and of ensuring that, as far as a system can do so, the Crown acknowledges and concedes everything in an accused person's favour that should be legitimately be acknowledged or conceded in a proceeding.
It is true that criminal cases have potentially serious implications for those who are accused of crimes. Indeed, the potential denial of a citizen's liberty is often seen to be at the heart of the Crown's obligations of fairness and even-handedness in criminal proceedings. Admittedly, these consequences are not usually engaged in other proceedings between the Crown and its citizens. However, the consequences for citizens of a wide variety of dealings with government are liable to be as profound for them as may be some criminal matters. Is a citizen any less entitled to this standard of fairness and even-handedness because the matter does not involve criminal proceedings against him or her? Or because the conflict between a citizen and the government does not involve a court proceeding?
The second point, a duty of 'fair dealing', is really an extension of the argument based upon representativeness. Essentially if the government has a responsibility to all of its citizens, one aspect of this duty must be to treat its citizens fairly. And one aspect of that treatment surely includes acknowledging a citizen's legal entitlements when they exist. I argue that at the very least it requires a standard of 'fair dealing' with its citizens in these positions, a standard that exceeds the requirements of private persons. This is a duty based upon the very nature of the entity.
And, as in the Paddle River dam situation, I think the duty extends to and influences the responsibilities of lawyers representing government. This governmental standard of fair dealing should, for example, exceed the minimum requirements one finds in legal proceedings. Aside from making the disclosures required by law to claimants, it should include admitting what should reasonably be admitted, conceding what should reasonably be conceded, accommodating what should reasonably be accommodated. A duty of fair dealing should require nothing less. It essentially requires that a certain public interest value, one that influences lawyers' behaviour, deserves accommodation whenever the government's interest encounters legitimate claims by its citizens. Not grudgingly, but in a fair and timely way. In this way, 'fair dealing' with its citizens does not detract from the representative nature of public government. Rather, it advances and enriches it for all.
It is evident that if these duties apply to the government as a 'client', they impose expectations on its lawyers as well, namely, duties for lawyers to uphold, and duties for lawyers to insist that their client uphold. I do not offer a comprehensive description of what these duties are or must be. But I do argue that they do exist, and that it is the duty of the profession to attempt to articulate them.
I turn now to my three examples related to client confidences and client representation.
I referred at the outset to some of the ethical and legal rules, built upon the foundation of 'loyalty to client', that have been developed by lawyers and judges. I also observe that, more than any other segment of our society, we lawyers embrace these principles strongly. In my own jurisdiction, our Supreme Court of Canada has recently noted that solicitor-client privilege, perhaps the most powerful manifestation of client loyalty, is the most strongly protected privilege known in the law. The protection appears to be even more strongly embraced in the United Kingdom.
This value supports clients' interests by enabling them to confide fully in their lawyers, confident that their innermost secrets will not be divulged. This makes it possible for clients to have as their champion someone skilled in the law who is fully knowledgeable about the client's case and cause. This improves the likelihood that the lawyer will be in the most advantageous and knowledgeable position possible, enabling him or her to provide to the client the best advice available.
Nevertheless, public policy principles and values have invited us as a society, and as lawyers, to give consideration to various modifications to the value and priority of confidentiality. And it is to some of these public policy principles and values that I now turn.
My first example deals with confidentiality and legal professional privilege, in the context of what has come to be known as the 'future crime' exception. 'Future crime' refers to the circumstance where a lawyer learns, in the course of the representation of a client, that the client intends to commit a crime, and that the lawyer has reason to believe that the client will do so. Lawyers' consideration of this situation is instructive, and I offer the Canadian experience as illustrative and, I believe, instructive.
Historically, this issue was not seen as of significance in the way that codes of ethics for Canadian lawyers dealt with lawyer-client confidentiality. This can be contrasted with the ways in which, for example, the doctor-patient relationship enabled, and in some cases required, doctors to give greater consideration to the safety of others, even at the risk of setting aside the sanctity of doctor-patient communications. Essentially the question is whether a perfectly legitimate value and a foundational principle in the operation of the justice system, the confidentiality of lawyer-client communications, should give way to a public interest in the prevention of crime and the potential harm to others.
This is an example where lawyers themselves have sought to embrace a public policy value, and to grant it a priority greater than the preservation of a client confidence. As a consequence of debate among lawyers themselves, modifications have been made to professional codes of conduct for lawyers that now allow, and in some jurisdictions require, lawyers to disclose client intentions to commit crimes. This is a particularly troublesome topic. There are crimes and then there are crimes. The client is likely to be completely unaware that in certain situations the lawyer is more or less a double agent for the 'public interest'. In some cases the disclosure may compromise the client's legal [and in Canada] constitutional right to be represented effectively. Nevertheless, to the credit of the legal profession, lawyers have grappled with this issue and have embraced, to a greater or lesser extent, the public interest value associated with the prevention of harm befalling the innocent 'other', even though such a value directly conflicts with a fundamental tenet of client representation within our adversary system.
As many of you will know, on this topic New Zealand has been a leader in the consideration and in the embrace of this exception. The New Zealand provision, taken from the Rule 1.08 of the present Rules of Professional Conduct states:
A practitioner has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and should not divulge such information except where:
(iv) the information relates to the anticipated or proposed commission of a crime (and where the anticipated crime is one involving the possibility of physical injury to another person, disclosure is mandatory);
Indeed, the proposed rules for New Zealand lawyers appear to go further. Proposed Rule 7.3 would require the disclosure of confidential information where
(i) the information relates to the anticipated or proposed commission of a crime; or (j) the information relates to a breach of law and the disclosure is necessary to prevent physical injury to another person;
From the tenor of my remarks you will probably have concluded that I support the existence, or establishment, of exceptions of this nature. You would be correct. It is not because I think lawyers should generally perform as double agents, acting against client interests. Nor is it because I think the adversary system, or the role of lawyer-client confidentiality within that system, is defective. I just do not believe that a set of professional values can resist this particular 'public interest', the prevention of serious harm where such prevention is possible. I concede that one consequent, and negative, effect, for both clients and the 'public interest', may well be that some clients will not fully confide in their lawyers. But in those circumstances where they do confide their evil intentions, lawyers will be able to do some good. And an observant public, admittedly not entirely versed in the systemic importance of some of the professional norms of the legal profession, will expect no less. Any other choice would, in my opinion, invite even greater criticism of the lawyers' professional values than already exists.
Let me turn to my second example, where lawyers have not everywhere acted in as proactive a way in responding to a strong 'public interest' value. The circumstance is child neglect and child abuse. I should acknowledge that a number of situations that arise, particularly in the context of child abuse, would qualify as crimes involving ongoing physical injury to a person. Assuming that ongoing crimes amount to 'future crime', it may be that lawyers' rules of professional conduct to which I have earlier referred could be said to cover this situation. This has not been the case in Canada and some other jurisdictions. In many jurisdictions the matter has not been left to lawyers' codes. It has been addressed in legislation, in some jurisdictions by affirming the value of lawyer-client confidences, but in a few jurisdictions by over-riding it.
Let me give you a sense of the public policy importance of this issue in other jurisdictions. The very fact of learning about child neglect or abuse, what the Canadian legislation usually refers to as learning that a child is 'in need of protection', places a positive onus on a citizen to report this information to the authorities. Failure to report is itself an offence under the child protections statutes. The question is whether, taking everything into consideration, this legislation should be made to apply to lawyers. Some of the considerations are the special role lawyers play as representatives of clients in difficult circumstances, the context in which lawyers are likely to learn of the abuse or neglect, and the fact that it can be anticipated that the lawyer will be retained to represent the clients before courts mandated to decide the fate of the children at risk.
My understanding is that New Zealand law in this area does not impose upon citizens a duty to report child abuse or neglect, so some of you could be forgiven for concluding that this example may be inapplicable here. But I would invite you to think about this in a slightly different way. There is no less strong a public policy value related to the care and consideration of children in this country than in any other civilized country. And it is not unreasonable to expect that if pro-active initiatives like mandatory reporting exist in other jurisdictions, or in other areas of the law such as public health, where reporting requirements are often mandatory, it can be anticipated that they may not be far behind in the area of children's health and safety. If so, what will be the situation for lawyers? Will we be exempted? Will we lobby to be exempted? Will we be able to make the case that client confidentiality is a more important value than child neglect? Personally, I doubt it.
I acknowledge the 'systemic' problem, the problem presented by the situation of client representation, where the lawyer is actually required to act against what many would see as a central client interest if required to disclose the client's secrets. Indeed, I have found myself involved in such situations on a number of occasions. But, with the space of time and distance, including perhaps emotional distance, and reflection, I am of the view that if we too aggressively embrace 'systemic values' at the expense of strongly and universally held 'public policy' values, like the health and safety of our children, we will invite powerful criticism of the whole system we all value.
I turn now to my third example. In the late 1990s and early part of this century, the ethics spotlight was turned upon accountants like never before. [I think of it as a welcome time when, as short-lived as it might have been, public attention turned to the ethical shortcomings of other professionals.] The circumstances related to the financial failure of a number of high-profile corporations, mostly based in the United States. It became clear, in hindsight, that the accounting practices of these corporations were highly questionable, to say the least, that accountants and auditors largely turned a blind eye to the misdeeds occurring within the companies, and that these practices and their eventual disclosure led to the collapse of what were corporate giants. The consequences of these business failures have been enormous: investor losses in the billions; thousands of honest, hardworking employees put out of work; some world-renowned accounting firms destroyed; business confidence shaken. As the investigations of these scandals proceeded, it became evident that lawyers associated with the corporate enterprises were not entirely innocent of wrong-doing.
The wrongdoing of lawyers associated with these enterprises came to attract a significant amount of scrutiny. While a part of this scrutiny understandably focussed on the details of the misdeeds, a significant amount of attention has been directed to the systemic dimensions of lawyer accountability. Much of this was initiated by US politicians, calling for stricter standards on the part of lawyers. The most significant aspects relate to calls for the establishment of a fundamentally different role for lawyers in relation to the preservation of corporate integrity and assurances to the public that corporate enterprises are operating in a responsible fashion. For example, one aspect of the Sarbanes Oxley Act that followed these corporate sandals included a requirement that the Securities Exchange Commission (SEC) develop 'Rules of Professional Responsibility for Attorneys'. Political expectations in relation to the content of these rules were that they would be more invasive than anything previously contemplated by the legal profession, particularly in terms of the potential requirements for the public reporting of the misdeeds of their corporate clients. One US Senator, himself a lawyer, stated that '[l]awyers have just as much responsibility as accountants and corporate executives to protect the best interest of the shareholder. It is not unreasonable to expect attorneys to play it straight with their clients, especially when we are talking about restoring corporate integrity.' As Canadian academic, Paul Paton, put it in a recent commentary, referring to these 'political expectations', 'their comments signal that public representatives are no longer willing to let the profession determine for itself the boundaries of appropriate lawyer conduct where a greater public interest is identified'.
Indeed, the contemplated interventions of the SEC would result in a fundamental shift in the role to be played by lawyers for corporations. The SEC initially sought to essentially require that lawyers become more fully engaged as 'gatekeepers' of the public interest with respect to the very clients they represent. These interventions are rightly seen by the legal profession as highly invasive, and fundamentally at odds with the values at the core of client representation — loyalty, fidelity, confidence, zealous representation. To date they have been resisted effectively in the United States, and have substantially been resisted in other common law jurisdictions.
In recent commentaries, two somewhat divergent points of view have been expressed in relation to these matters. In a recent article entitled 'Ethics and the Role of Corporate Counsel: Gatekeeper, Whistleblower or Friend', Duncan Webb articulated the challenges and pressures now being faced by corporate counsel, but urged caution with respect to fundamental shifts in the rules related to lawyers in such situations, many of them motivated by 'draconian political rhetoric'. He observed that '[I]t is, however, the argument of this article that the obligations placed on corporate counsel, at least in New Zealand and Australia, are adequate as they stand'.
Examining the same developments from a Canadian perspective, where there has been active resistance by the Canadian legal profession to proposals to impose greater strictures on corporate lawyers, and himself conceding 'that more rules may not be the answer', Paul Paton concluded:
The inclusion of lawyer conduct requirements in Sarbanes-Oxley reflects a new reality and a continuing dissatisfaction of legislators, regulators, and the general public that the bar has failed to protect the public interest adequately; rather than attempting to preempt needed reforms, the bar might be well advised to recognize the signals from the Ontario courts and from the U.S. that traditional and absolute self-regulatory preserves are no longer sustainable.
In the end, lawyers, corporations and the public will all be better served by corporate counsel who have the broader bar's understanding of — and empathy for the social and professional reality they occupy within the often-crossed fiduciary and professional responsibilities to their clients and the responsibilities they have to the public as gatekeepers in the post-Enron era.
I worry that the answer may be 'all of the above'. A greater understanding on the part of corporate counsel of their responsibilities. An appreciation that the fulfilment of these responsibilities will go a long way to achieving public expectations. And, alas, rules more in line with the requirements to disclose wrongdoing that require corporate counsel to prevent or at least minimize the losses to innocent parties at the hands of corporate wrongdoers.
These three examples — 'confidential information about future crime, about child neglect/abuse and about corporate wrong-doing — are widely disparate examples. In one respect this makes them difficult to consider together. In another respect, though, they argue for a more coherent consideration of the 'public interest' constraints upon a lawyer's zealous advocacy on behalf of, and loyalty to, his or her client across the spectrum of client representation. An examination of these three examples may suggest that as a profession we are more willing to moderate our commitment to client loyalty where unqualified loyalty could result in serious physical harm to innocent third parties. This may be the basis of a coherent and commendable theory that qualifies client representation. Another theme may be that where significant commercial interests are at stake we will fight aggressively to preserve a virtually unqualified commitment to client loyalty, even if in some, admittedly rare, circumstances undisclosed client wrongdoing will result in extremely serious financial harm to innocent parties. A cynic might link this theme to the common critique of lawyers that we are only too willing to protect our most financially valued clients and, indirectly, our own financial interests.
In some respects, the cynics' views are of only minor importance. As a profession, we have a duty to wrestle with these questions. To what extent will we defend traditional models of our role, even in the face of strong public pressure to modify those models and give greater consideration to the public interest dimensions of our work and responsibilities, even at the expense of immediate client interests, and perhaps our own interests? And at the same time, intelligently identify, and avoid, those calls for changes in lawyers' ethical obligations that would perhaps mollify immediate claimants but could fundamentally jeopardise valued principles that form the foundation of our legal system and the role that lawyers conscientiously perform within that system. These principles, I hasten to add, are profound public interest values in themselves. I do not think we have all of the answers at this point in time. But it is our obligation, in a principled, objective way, to constantly engage in a search for them. Indeed, if we do not do so, others are liable to do it for us.
Brent Cotter is Dean of the College of Law at the University of Saskatchewan.
  3 SCR 631.
 Ibid . This decision, and its main theme of loyalty to clients, was recently reaffirmed by the Supreme Court of Canada in Strother v 3464920 Canada Inc  SCC 24.
 D Webb, Ethics, Professional Responsibility and the Lawyer (2nd ed, 2006) 167.
 C Wolfram, Modern Legal Ethics (1986) 580.
 Ibid 579.
 G Macauley, Works of Lord Macaulay (1900) 135.
 Rv Stinchcombe  3 SCR 326.
 Smith v Jones  1 SCR 455.
 R v Derby Magistrates’ Court  UKHL 18;  4 All ER 526 (HL).
 Sen M Enzi, quoted in American Bar Association, 'Senate Passes Amendment to Accounting Bill Requiring Corporate Lawyers to Report Fraud' (2002) 18 ABA/BNA Lawyers' Manual on Professional Conduct.
 P Paton, 'Corporate Counsel as Corporate Conscience: Ethics and Integrity in the Post-Enron Era' (2005) 84 Canadian Bar Review 533, 539.
 (2005) 23 Companies and Securities Law Journal 483, 484.
 Paton, above n 11, 554.