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| Jacob Murad |
As a lawyer who has been practising for close to 10 years, I find it interesting to go back and review these Rules in extreme detail and relate them to the realities of practice. I have reached the (perhaps radical) conclusion that the Rules of Professional Conduct should be amended such that they act as guidelines or factors to consider when disciplining a lawyer or malpractice lawsuits as opposed to specific rules where discipline ensues as a result of their breach. This is because the general theme of the rules is about society respecting lawyers as officers of the court; thus respecting the judicial system and the rule of law as a whole.
The problem is that many lawyers consistently fear for their licence (and subsequently method of earning a living and reputation) in the face of such stringent rules and as a result of the process these rules call for, lawyers’ clients ironically end up harmed and view lawyers and the legal system negatively as a result. Put another way: Lawyers are so busy trying to keep their jobs, that they forget to do their jobs. This is exactly the opposite of what the Rules should be intended to accomplish.
Here are some examples I have personally run into:
- A client asks a litigator to argue against a cost submission that will delay proceedings another two weeks to allow the client to raise the money to pay the judgment and costs, but the lawyer has no reasonable basis to argue this submission. The litigator is torn between the rule to advocate for the client and the duty of candour to the court so withdraws from representation.
- A retiring lawyer is getting older and has taken the proper steps to discontinue his licence and insurance and wind down his practice, but one long-time client’s settlement negotiations seem to be continuing past his licence end date. The lawyer is torn between the rules of the unauthorized practice of law and prejudicing his client that the lawyer knows is the right person to bring the issue to a resolution — the lawyer withdraws from representation.
- Many young lawyers mistake the rule of “competence” to mean refusing to help a potential client when they are not familiar with the law and, as a result, have too much trouble maintaining private practice.
These are simply examples of situations where the rules come into conflict with each other. There are too many situations where the rules come into conflict with providing service to the client and the community at large. The main categories include:
- Withdrawing from representation: I wrote before about how difficult it is to withdraw in a manner that still provides value rather than leaving a client high and dry as in the examples above.
- Changing counsel rules: The legal industry has considerable turnover, and often it is impractical for the client in the middle of their transaction to provide them with their three options as outlined in the Rules — this is especially true in matters that are very administrative (residential real estate) versus personal (contested divorce proceedings). For example, in the case of a simple residential home closing, I have found that the client does not care who their lawyer is anymore in the middle of a transaction, they simply want to make sure they can move into their home on closing.
The practice of law is inherently complex, with each case presenting its own unique challenges and ethical dilemmas. Strict rules may not always capture the full spectrum of ethical considerations involved in legal practice, leading to situations where lawyers are forced to choose between adhering to the letter of the law and doing what is morally right, best for the client or what is best for any other relevant stakeholder in general. Guidelines would allow for a more nuanced approach, enabling lawyers to navigate complex situations with a focus on ethical outcomes rather than rigid rule compliance.
The counterargument to this would be that lawyers need specific rules to follow like confidentiality, conflict of interest and trust reconciliation, breaches of which should lead to discipline. But I would argue that, as guidelines, the lawyers would understand these rules and could still be disciplined for breach of them (and also sued) but not necessarily for minor infractions. It is the fear of breaching even a minor infraction of a rule leading to an investigation and perhaps discipline that seems to be causing the most harm. A major infraction of the rules will lead to the same discipline either way.
Another major issue I see is clients who use these specific rules as leverage in negotiations (e.g., not paying a fee) or as revenge from a disgruntled lawyer employee. I would not be surprised if, at some point in the future, my authorship of this article is used as “evidence” in a potential allegation against me or members of my firm. Since the law society complaint process is free and a lawyer cannot sue a complainant, many lawyers would rather settle a frivolous allegation of a breach of the rules than follow through on an investigation. Many times, this is where the fear comes from. But by making the rules guidelines, lawyers can feel a bit more at ease. If law society rules were treated as guidelines, law society complaint investigations and disciplinary actions could be more focused on serious ethical breaches rather than minor deviations from rigid rules.
Lastly, as we’ve seen throughout the legal profession, there is a massive evolution involving technology and client expectations of a lawyer’s services. Rigid professional responsibility rules can stifle innovation, as lawyers may be hesitant to explore new methods of practice or adopt emerging technologies for fear of violating outdated regulations. Guidelines, on the other hand, provide a flexible foundation that can accommodate new approaches without the need for costly pilot programs or studies to be commissioned. This flexibility would encourage lawyers to innovate, ultimately benefiting clients and the legal system as a whole.
The legal profession must balance the need for ethical conduct with the realities of an evolving and complex practice environment. By treating law society rules as guidelines rather than strict mandates, the law society can empower lawyers to exercise their professional judgment, encourage innovation and better reflect the complexities of their work. This approach would not only benefit legal professionals but also serve the broader interests of justice and society.
Jacob Murad is the managing partner and general counsel to BlueStar Equity, a private equity family office in Toronto, as well as president of KPA Lawyers Professional Corporation, a full-service law firm in Mississauga, Ont. He has served as general counsel and director for a large number of private companies throughout Canada and was responsible for the negotiation of complex mergers and acquisitions across a variety of industries. He is a member of the Law Society of Ontario’s Coach and Mentor Roster. He can be reached at jacob@kpalawyers.ca.
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