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Sustainable Professionalism

Published online by Cambridge University Press:  06 March 2019

Trevor C.W. Farrow

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The traditional narrative of the legal profession has run its course. Lawyers are looking for ethically sensitive ways to practice law that “assume greater responsibility for the welfare of parties other than clients” and that increasingly amount “to a plus for this society and for the world of our children.” Lawyers are also seeking ways to practice law that allow them to get home at night and on weekends, see their families, work full or part-time, practice in diverse and “alternative” settings, and generally pursue a meaningful career in the law rather than necessarily a total life in the law. Similarly, law students are hoping not to be asked to make a “pact with the Devil” as the cost of becoming a lawyer, and are instead looking to find areas in the law that fit with their personal, political, and economic preferences. An increasing number of legal academics are teaching, researching, and writing about progressive changes to the way we view the role and purpose of lawyering. Law faculties are actively reforming their programs and creating centres and initiatives designed to make space for innovative ethics offerings and public interest programs. Law societies and other regulatory bodies are slowly chipping away at some of the time-honoured shields of ethically suspect client behaviour, while at the same time facing demands for increased accountability. The bench and the bar are taking an active interest in addressing a perceived growing lack of professionalism within the practice. The public is increasingly skeptical of the distinction that continues to be drawn between legal ethics and “ordinary standards of moral conduct.” Finally, clients are not only expecting lawyers to actively canvass methods of alternative dispute resolution—the alternative to the adversarial and costly litigation process—but they are also demanding evidence of general sustainable professional practices from their legal counsel.

Type
Section 4: ‘Learning to Think and Act Like a Lawyer’ The Challenge of Professionalism in the Profession: Legal Ethics
Information
German Law Journal , Volume 10 , Issue 6-7: Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education , July 2009 , pp. 1001 - 1046
Copyright
Copyright © 2009 by German Law Journal GbR 

References

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31 I realize that, although correct in my view, this statement is not uncontroversial. For example, many clients (and indeed many lawyers) are quite happy with the current model. See Part B.III, below, for more on this topic.Google Scholar

32 See e.g. supra notes 3–14.Google Scholar

33 See Part C, below, for further discussion of these alternatives. See also Jerome E. Bickenbach, “The Redemption of the Moral Mandate of the Profession of Law” (1996) 9 Can. J.L. & Jur. 51.Google Scholar

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38 See e.g. infra note 66 and surrounding text.Google Scholar

39 See Part B.I-II, below, for more on this topic.Google Scholar

40 My comments here are animated by several experiences: approximately five years as a litigation lawyer at a large firm in Toronto, almost ten years of teaching ethics and professionalism to LL.B. students in several different institutions in several different jurisdictions, and more recently, teaching also in a part-time graduate program in which most students typically continue to carry on an active law practice.Google Scholar

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43 See e.g. Kennedy, “Rebels from Principle,” supra note 6 at 87 (“I think we should ask of our students that in practice they try to figure out whether there are intelligent, more or less controlled risks they can take to put their careers behind their opinions. According to my students, they ‘impliedly agreed’ not to do any such thing, and if they tried, they'd be fired, or never make partner”).Google Scholar

44 See e.g. Elkins, supra note 7.Google Scholar

45 See Marx, “Eighteenth Brumaire,” supra note 1 at 595.Google Scholar

46 With apologies to Marx and Engels, it could be said that what I am recognizing is the “spectre” that is currently “haunting” the legal profession: the spectre of sustainable professionalism. See Marx & Engels, “Communist Manifesto,” supra note 30 at 473.Google Scholar

47 Although ethicists often think of these perspectives as the subjects more specifically of either meta-ethics or normative ethics, this distinction does not matter for the purposes of this article (a distinction that, in any event, is at least for some “no longer found so convincing or important” (Bernard Williams, Ethics and the Limits of Philosophy (London: Fontana Paperbacks, 1985) 73)). However, for a useful discussion on the basic differences between these sub-streams of ethics, see ibid. at c. 5. See also Rhode, Ethics by the Pervasive Method, supra note 6 at 12.Google Scholar

48 That perspective is often thought of as the purview of applied ethics. See e.g. Rhode, ibid. at 12.Google Scholar

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51 Although choosing Plato's more metaphysical treatment of justice as a convenient underlying conceptual starting point, a different lens through which to think about legal ethics could be the lens of pragmatism, developed by thinkers such as William James, John Dewey, and more recently Richard Rorty (see e.g. Richard Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979)). For example, rather than trying to philosophize about legal ethics and professional responsibility in the context of abstract notions of “the good,” pragmatists would be much more likely to consider the discussion's practical applications for lawyers and clients (and other interested stakeholders) in the specific context of their everyday roles and experiences. This viewpoint might be helpful when trying to develop an understanding of professionalism—particularly from the contextual perspective of sustainability—that is contemplated in this article. However, because nothing in this article turns on my choice of conceptual lenses, I leave this as a point of departure for future fruitful thinking on ethics and professionalism. For a useful discussion of the distinction between Plato's general philosophical approach and pragmatism, see e.g. Richard Rorty, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) at xiii ff. (“Introduction: Pragmatism and Philosophy”). See generally Williams, supra note 47 at 137–38; Charles Taylor, Philosophical Arguments (Cambridge: Harvard University Press, 1995) at 2 ff. I am grateful to Allan Hutchinson for comments on the application of pragmatism to this project.Google Scholar

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59 A potential objection to using Atkinson's “fundamental question” to frame this part of the discussion is that often what counts as “legal” is not necessarily something that is neatly separate and apart from lawyers and their ethical deliberation and professional involvement. In fact, lawyers are typically very much bound up in the production of law and its procedural instruments. However, because this is more of an objection to the premise of Atkinson's question than an objection to my use of his question (which, ultimately—as is developed further in this article in Part D.I-IV—is sympathetic to this objection), I do not need to respond to it further here. For a discussion of the concerns that underline this potential objection, see e.g. Hutchinson, Legal Ethics, supra note 8 at 26.Google Scholar

60 See e.g. Crystal, Nathan M., Professional Responsibility: Problems of Practice and the Profession, 2d ed. (New York: Aspen, 2000) at 9 (“Professional responsibility or legal ethics, like other fields of law, is a latticework of court rules, judicial decisions, statutes, and other authorities”). See also Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics, 5th ed. (New York: Aspen, 1998) at 10–13.Google Scholar

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62 See Part D.III, below.Google Scholar

63 For useful background discussion on professional regulation and legal ethics, see e.g. Geoffrey C. Hazard, Jr., Ethics in the Practice of Law (New Haven: Yale University Press, 1978) cc. 1–2; Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline, 4th ed. (Toronto: Carswell, 2006) at 2–3.Google Scholar

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68 Lord Brougham further commented, regarding the advocate's role, that “[t]o 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.” J. Nightingale, ed., Trial of Queen Caroline, vol. 2 (London: J. Robins & Co., 1821) at 8 [Trial of Queen Caroline]. See also Farrow, “Ethics in Advocacy,” supra note 15.Google Scholar

69 See e.g. Dash, supra note 13 (“A lawyer knows but one person, his client” at 217). See generally Freedman, supra note 64 at 9.Google Scholar

70 Layton, David, “The Criminal Defence Lawyer's Role” (2004) 27 Dal. L.J. 379 at 381.Google Scholar

71 See e.g. Pepper, Stephen L., “The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities” (1986) Am. Bar Found. Res. J. 613 at 616–18, 626–27; Charles Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale L.J. 1060 at 1073–74, 1077.Google Scholar

72 Atkinson, , “Perverted Professionalism,” supra note 41 at 187–88. As such, when “proponents of neutral partisanship describe their model as amoral, they are not referring to its ultimate grounding, which is emphatically moral. They are referring, rather, to the lawyer's immunity from the task of scrutinizing the morality of particular client acts. Theirs is the morality at the wholesale but not the retail level; a morality of the long run, not the particular case; a morality of fidelity to role obligations, not attention to particular acts” (at 188) [footnotes omitted].Google Scholar

73 Ibid. at 187 [footnotes omitted].Google Scholar

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75 See Pepper, Stephen L., “A Rejoinder to Professors Kaufman and Luban” (1986) Am. Bar Found. Res. J. 657.Google Scholar

76 Atkinson, , “Perverted Professionalism,” supra note 41 at 189. See also Wasserstrom, “Lawyers as Professionals,” supra note 20 at 10. For useful background discussions of the dominant model, see e.g. William H. Simon, “Ethical Discretion in Lawyering” (1988) 101 Harv. L. Rev. 1083 at 1084–90 [Simon, “Ethical Discretion”]; Sharon Dolovich, “Ethical Lawyering and the Possibility of Integrity” (2002) 70 Fordham L. Rev. 1629 at 1632–39; Geoffrey C. Hazard, Jr. & Deborah L. Rhode, The Legal Profession: Responsibility and Regulation, 3d ed. (Westbury: Foundation Press, 1994) at 135–213; and Vischer, supra note 34 at 226–27. Compare also Leonard Riskin's critique of the traditional lawyer's “standard philosophical map.” Leonard Riskin, “Mediation and Lawyers” (1982) 43 Ohio St. L.J. 29 at 44.Google Scholar

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79 For this reason, the dominant model's treatment of the criminal defence lawyer is also the most difficult aspect of the dominant model to critique. In fact, there is a debate in the alternative literature about whether the alternative models, discussed further in Part C, apply equally to criminal defence work as they do to civil side work. For example, Wasserstrom argues that “the amoral behaviour of the criminal defense lawyer is justifiable,” and is of the view that “[o]nce we leave the peculiar situation of the criminal defense lawyer … it is quite likely that the role-differentiated amorality of the lawyer is almost certainly excessive and at times inappropriate.” Wasserstrom, “Lawyers as Professionals,” supra note 20 at 12 [emphasis in original]. See similarly Rhode, Interests of Justice, supra note 66 at 72 (arguing that the criminal context often requires role differentiated behaviour); Luban, David, Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988) at 148 (arguing that, in the criminal defence context, “the appeal to the adversary system by-and-large vindicates the kind of partisan zeal characterized in the standard conception”) [Luban, Lawyers and Justice]. See further Atkinson, “Perverted Professionalism,” supra note 41 at 191. In contrast, William Simon rejects the distinction between civil and criminal contexts as a reason to move away from the notion of justice-seeking as the basis for ethical deliberation. See William Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (Cambridge: Harvard University Press, 1998) at 170–94, discussed in Dolovich, supra note 76 at 1647–48.Google Scholar

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82 Ibid. at 10. See also Wasserstrom, “Legal Education,” supra note 37 at 157–58; Abe Krash, “Professional Responsibility to Clients and the Public Interest: Is There a Conflict?” (1974) 55 Chicago Bar Record 31. For an early and colourful account of this role-based institutional argument, see James Boswell, Boswell's Journal of A Tour to the Hebrides with Samuel Johnson, LL.D. (London: William Heinemann, 1936) at 14–15 (15 August 1773 journal entry).Google Scholar

83 ABA, Model Rules, supra note 23. For commentary, see e.g. Alice Woolley, “Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer” (1996) 9 Can. J.L. & Jur. 61 [Woolley, “Integrity in Zealousness”].Google Scholar

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85 For example, according to Wasserstrom, the dominant model has been described as rendering lawyers “at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.” Wasserstrom, “Lawyers as Professionals,” supra note 20 at 1.Google Scholar

86 LSUC, Rules, supra note 10, r. 4.01(1), commentary [emphasis added].Google Scholar

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88 The Law Society of Alberta, Code of Professional Conduct, c. 10, r. 11, commentary [LSA, Code].Google Scholar

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90 Discussed in Wasserstrom, “Lawyers as Professionals,” supra note 20 at 8. In the specific context of representative negotiation, see e.g. Robert F. Cochran, Jr., “Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation” (1990) 47 Wash. & Lee L. Rev. 819.Google Scholar

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93 For a recent and compelling film that looks at various competing visions of lawyers’ professional and ethical roles and obligations, see Michael Clayton (Warner Bros. Pictures, 2007), online: Warner Bros. <http://michaelclayton.warnerbros.com/#>. See further Paul Bergman, “The Movie Lawyers’ Guide to Redemptive Legal Practice” in Susan D. Carle, ed., Lawyers’ Ethics and the Pursuit of Social Justice (New York: New York University Press, 2005) at 309..+See+further+Paul+Bergman,+“The+Movie+Lawyers’+Guide+to+Redemptive+Legal+Practice”+in+Susan+D.+Carle,+ed.,+Lawyers’+Ethics+and+the+Pursuit+of+Social+Justice+(New+York:+New+York+University+Press,+2005)+at+309.>Google Scholar

94 The Internet Movie Database (“IMDb”), “Memorable Quotes from ‘Law & Order’ (1990),” online: <http://www.imdb.com/title/tt0098844/quotes>..>Google Scholar

95 See e.g. Fillion, Kate, “‘One prominent lawyer told me, “Every lawyer is going to go into the office today and commit fraud.” Then he laughed.’ Ex-Bay Street lawyer Philip Slayton talks to Kate Fillion about how lawyers became greedy, unprincipled enablers of the rich,” Maclean's 120:30 (6 August 2007) 18 (the “Lawyers are Rats” issue). This was an interview with Philip Slayton, based on his recent book: Philip Slayton, Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession (Toronto: Viking Canada, 2007). See similarly James L. Kelley, Lawyers Crossing Lines: Nine Stories (Durham, NC: Carolina Academic Press, 2001). For a brief discussion of the Maclean's issue and Philip Slayton's book, see Dodek, “Canadian Legal Ethics,” supra note 8 at 7, 16, 38. For a review of Slayton's book, see Lorraine Lafferty, (2008) 46 Osgoode Hall L.J. 197; Tim Wilbur, “The trouble with law is lawyers” The Globe and Mail (4 August 2007) D3. For a recent example of media attention on a particularly ethically contentious legal issue, see Adam Liptak, “Lawyer Reveals Secret, Toppling Death Sentence” The New York Times (19 January 2008), online: <http://www.nytimes.com/2008/01/19/us/19death.html?pagewanted=1>..>Google Scholar

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102 See e.g. LSUC, Rules, supra note 10, r. 4.01(2).Google Scholar

103 For various code-based and legislative statements regarding the profession's obligations to the “public interest,” see generally Part C.II of this article.Google Scholar

104 See e.g. Rondel v. Worsley, [1967] 1 Q.B. 443, Lord Denning M.R. (C.A.), (following n. 27 and accompanying text), aff'd [1969] 1 A.C. 191 (H.L.). Similarly, the former Chief Justice of Ontario—when speaking on the topic of “advocacy in the 21st century”—emphasized the various competing interests to which advocates must be faithful: “Lawyers are not solely professional advocates or ‘hired guns'. And while they do not surrender their free speech rights upon admission to the bar, they are also officers of the court with fundamental obligations to uphold the integrity of the judicial process, both inside and outside the courtroom. It is the duty of counsel to be faithful both to their client and to the administration of justice.” Hon. R. Roy McMurtry, “Role of the Courts and Counsel in Justice” (The Advocates’ Society Spring Symposium 2000, Advocacy in the 21st Century, 6 June 2000), online: <http://www.ontariocourts.on.ca/coa/en/ps/speeches/role.htm>..>Google Scholar

105 See e.g. CBA, Code, supra note 27. See also LSUC, Rules, supra note 10, r. 4.01(2)(b).Google Scholar

106 See e.g. LSUC, Rules, ibid., r. 1.03(1)(a).Google Scholar

107 Freedman, , supra note 64 at 9.Google Scholar

108 See e.g. Pepper, supra note 71. See further Atkinson, “Perverted Professionalism,” supra note 41.Google Scholar

109 See Law Society Act, R.S.O. 1990, c. L.8, s. 4.2.Google Scholar

110 But see Randal N.M. Graham, Legal Ethics: Theories, Cases, and Professional Regulation (Toronto: Emond Montgomery, 2004) at 103–28.Google Scholar

111 Atkinson, , “Perverted Professionalism,” supra note 41 and 57.Google Scholar

112 Although there clearly are differences between alternative models, as a general matter they maintain more similarities than differences. For a useful discussion of some of the leading alternative models, their similarities and differences, see Dolovich, supra note 76 at 1646–49, 1664–65, in which she writes that “[i]n the main” a number of alternative models share “the view that ethical lawyering requires the exercise of discretion by individual lawyers, who must judge for themselves in any given situation what justice requires and act accordingly” (at 1648). For a useful discussion on the distinctions between the American and Canadian perspectives on legal ethics, see Woolley, “Integrity in Zealousness,” supra note 83.Google Scholar

113 For example, according to the Supreme Court of Canada,”[c]learly, a major objective of the [New Brunswick Law Society] Act is to create a self-regulating professional body with the authority to set and maintain professional standards of practice. This, in turn, requires that the Law Society perform its paramount role of protecting the interests of the public… ‘The privilege of self-government is granted to professional organizations only in exchange for, and to assist in, protecting the public interest with respect to the services concerned…'” Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 36 [references omitted].Google Scholar

114 For a recent discussion of some of these competing interests and some of the challenges that come with seeking to balance them, see Farrow, “The Negotiator-As-Professional,” supra note 15. See also Atkinson, “Perverted Professionalism,” supra note 41; Wasserstrom, “Legal Education,” supra note 37; Rhode, “Persistent Questions,” supra note 3; and Beverley G. Smith, Professional Conduct for Lawyers and Judges, 3d ed. (Fredericton: Maritime Law Book, 2007) c. 1.Google Scholar

115 Rhode, , Interests of Justice, supra note 66 at 17, 67. See also Paul A. Teschner, “Lawyer Morality” (1970) 38 Geo. Wash. L. Rev. 789.Google Scholar

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118 Simon, , “Ethical Discretion,” supra note 76 at 1083. Similarly, Simon articulates the normative underpinning of this model as a “‘seek justice'” maxim. Ibid. at 1090. See further William H. Simon, “‘Thinking Like a Lawyer’ about Ethical Questions” (1998) 27 Hofstra L. Rev. 1.Google Scholar

119 Vischer, , supra note 34 at 225.Google Scholar

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122 Rhode, , Interests of Justice, supra note 66 at 66–67. See also Hutchinson, Legal Ethics, supra note 8 at 50–58, 212; Allan C. Hutchinson, “Calgary and Everything After: A Postmodern Re-vision of Lawyering” (1995) 33 Alta. L. Rev. 768; and David Luban, “Integrity: Its Causes and Cures” (2003) 72 Fordham L. Rev. 279. Similarly, according to Atkinson's description of the moral activist, the lawyer cannot be “neutral professionally toward what she opposes personally.” Ibid at 191.Google Scholar

123 Kennedy, Duncan, “The Responsibility of Lawyers for the Justice of Their Causes” (1987) 18 Tex. Tech. L. Rev. 1157 at 1159 [Kennedy, “The Responsibility of Lawyers”].Google Scholar

124 See Atkinson, , “Perverted Professionalism,” supra note 41 at 190–91.Google Scholar

125 Rhode, , Interests of Justice, supra note 66 at 71. See infra notes 174 and 178 and accompanying text.Google Scholar

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127 Vischer, , supra note 34 at 228–29.Google Scholar

128 Ibid. at 229.Google Scholar

129 Ibid. Google Scholar

130 See e.g. Hutchinson, “Legal Ethics for a Fragmented Society,” supra note 120 at 187–88.Google Scholar

131 Wasserstrom, , “Lawyers as Professionals,” supra note 20 at 15. See also MacKenzie, supra note 63 at 1–8.Google Scholar

132 Tabor, Brian A., “President's Message” (March 2006) in CBA, Code, supra note 27 at v [Tabor, “President's Message”].Google Scholar

133 CBA Code, ibid. at ix.Google Scholar

134 Law Society Act, supra note 109, s. 4.2. Similarly, in Alberta, the Preface to the LSA's Code provides that the “legal profession is largely self-governing and is therefore impressed with special responsibilities. For example, its rules and regulations must be cast in the public interest, and its members have an obligation to seek observance of those rules on an individual and collective basis.” Supra note 88, Preface.Google Scholar

135 CBA, Code, supra note 27, c. XIII, commentary 3.Google Scholar

136 LSUC, Rules, supra note 10, r. 4.01(2)(b). See similarly ibid., r. 1.03(1)(a) (which is not limited to the lawyer's role as advocate).Google Scholar

137 NYSBA, New York Lawyer's Code of Professional Responsibility, Canon 1, EC 1–5, online: <http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/LawyersCodeDec2807.pdf>..>Google Scholar

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141 LSA, Code, supra note 88, Preface [emphasis added].Google Scholar

142 LSUC, Rules, supra note 10, r. 2.01(1) [emphasis added].Google Scholar

143 Ibid., r. 2.02(5.2), commentary [emphasis added].Google Scholar

144 See similarly ibid., r. 4.01(2)(b): “When acting as an advocate, a lawyer shall not … knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable. …” For my discussion on a potential objection regarding the distinction between “legal” and “ethical,” see supra note 59.Google Scholar

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147 See supra notes 141–43 and 145–46.Google Scholar

148 See Part B.II, above, for various dominant model code provisions.Google Scholar

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150 Tanovich, , supra note 25 at 273.Google Scholar

151 In these circumstances, decisions to withdraw need not be based simply on legal or financial conflicts, but can also be based on conflicts of a personal nature. See e.g. LSUC, Rules, supra note 10, r. 2.04. See also relevant competence principles, r. 2.01. For a general discussion of the alternative model playing itself out in practice, see ibid. Google Scholar

152 Margaret Ann Wilkinson, Christa Walker & Mercer, Peter, “Testing Theory and Debunking Stereotypes: Lawyers’ Views On The Practice Of Law” (2005) 18 Can. J.L. & Jur. 165, cited in Tanovich, supra note 25 at n. 13–15 and accompanying text. See also Peter Mercer, Margaret Ann Wilkinson & Terra Strong, “The Practice of Ethical Precepts: Dissecting Decision-Making By Lawyers” (1996) 9 Can. J.L. & Jur. 141, cited in Tanovich, ibid. at 270, n. 13.Google Scholar

153 Wilkinson et al., ibid. at 190, cited in Tanovich, ibid. at n. 15 and accompanying text.Google Scholar

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157 Supra note 9 and accompanying text.Google Scholar

158 See Marx, “Eighteenth Brumaire,” supra note 1 at 595.Google Scholar

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160 Supra note 68 and accompanying text.Google Scholar

161 Tanovich, Compare, supra note 25 at 272, n. 19 and accompanying text.Google Scholar

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163 See Part B, above.Google Scholar

164 MacKenzie, , supra note 63 at 1–7. See also Iacobucci, supra note 36 at 860.Google Scholar

165 Discussed further in Part B.I-II, above.Google Scholar

166 See Part C, above.Google Scholar

167 MacKenzie, , supra note 63 at 1–7.Google Scholar

168 See Part C.III, above.Google Scholar

169 MacKenzie, , supra note 63 at 1–7.Google Scholar

170 Hutchinson, Allan C., “Who Are ‘Clients'? (And Why it Matters)” (2005) 84 Can. Bar Rev. 411 at 430 [Hutchinson, “Who Are ‘Clients'?”].Google Scholar

171 For a brief discussion of my former practice experience, see e.g. supra note 40.Google Scholar

172 See McClintock, , supra note 14 and accompanying text.Google Scholar

173 See supra notes 34–37 and accompanying text.Google Scholar

174 See e.g. Rhode, , Interests of Justice, supra note 66 at 71.Google Scholar

175 For leading accounts of this current theory of liberalism, see e.g. John Rawls, Political Liberalism (New York: Columbia University Press, 1993); Rawls, John, A Theory of Justice, rev. ed. (Cambridge: Belknap Press, 1999). See also Atkinson, “A Dissenter's Commentary,” supra note 25 at 343. For a concise and powerful critique of Rawlsian liberalism—primarily animated by communitarian arguments that make space for a modern sense of the “good” being prior to the “right,” see e.g. Michael J. Sandel, “Political Liberalism,” Book Review of Political Liberalism by John Rawls, (1994) 107 Harv. L. Rev. 1765. See also Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1996).Google Scholar

176 Vischer, , supra note 34 at 227.Google Scholar

177 Supra note 175.Google Scholar

178 See Rhode, , Interests of Justice, supra note 66 at 71.Google Scholar

179 See Atkinson, , “A Dissenter's Commentary,” supra note 25 at 343.Google Scholar

180 Tanovich, , supra note 25 at 284.Google Scholar

181 Ibid. [citation omitted] [emphasis in original].Google Scholar

182 Rhode, , Interests of Justice, supra note 66 at 67.Google Scholar

183 Dolovich, , supra note 76 at 1649.Google Scholar

184 Ibid. Google Scholar

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186 See Marx, , “Eighteenth Brumaire,” supra note 1 at 595.Google Scholar

187 See Marx, & Engels, , “Communist Manifesto,” supra note 30 at 477.Google Scholar

188 See Marx, , “Eighteenth Brumaire,” supra note 1 at 595.Google Scholar

189 Ibid. Google Scholar

190 Ibid. Google Scholar

191 Ibid. Google Scholar

192 Ibid. Google Scholar

193 See Mayer, , supra note 2.Google Scholar

194 Ibid. Google Scholar

195 Atkinson, , “Perverted Professionalism,” supra note 41.Google Scholar

196 This process of uncovering “interests,” in the face of competing “positions,” is an application of interest-based negotiation theory. For a discussion of this theory, see Colleen M. Hanycz, “Introduction to the Negotiation Process Model” in Hanycz, Farrow & Zemans, supra note 15, c. 3.Google Scholar

197 See e.g. supra notes 40 and 43 and accompanying text.Google Scholar

198 See e.g. John Craig, ed., Production Values: Futures for Professionalism (London: Demos, 2006), online: Careers Scotland <http://www.careers-scotland.org.uk/nmsruntime/saveasdialog.asp?lID=9439&sID=1164>..>Google Scholar

199 I realize that proving a negative is not an easy task. For purposes of this article, it is also not a necessary task.Google Scholar

200 However, as is discussed in Part D.II.4, below, several theories of professionalism do provide some useful groundwork for this approach.Google Scholar

201 See Wood, Stepan, “Sustainability in International Law,” UNESCO Encyclopaedia of Life Support Systems (Oxford: EOLSS Publishers, 2003) 1 at 1–2, online: <http://osgoode.yorku.ca/osgmedia.nsf/research/wood_stepan>. I am grateful to Stepan Wood and Hugh Benevides for helpful background comments on the concept of sustainability..+I+am+grateful+to+Stepan+Wood+and+Hugh+Benevides+for+helpful+background+comments+on+the+concept+of+sustainability.>Google Scholar

202 Ibid. at 2.Google Scholar

203 Little, William, The Shorter Oxford English Dictionary on Historical Principles, 3d ed. (Oxford: Clarendon Press, 1973), s.v. “sustain” [OED].Google Scholar

204 World Commission on Environment and Development (Brundtland Commission), “Our Common Future” (Oxford: Oxford University Press, 1987), transmitted to U.N. General Assembly as annex to Development and International Co-operation: Environment, UN GAOR, 42d Sess., Annex Agenda Item 82(e), UN Doc. A/42/427 (1987), c. 2 at para. 1, online: United Nations <http://www.un-documents.net/ocf-02.htm> (cited to UN Doc. A/42/427) [Brundtland Report].+(cited+to+UN+Doc.+A/42/427)+[Brundtland+Report].>Google Scholar

205 Wood, , supra note 201 at 2.Google Scholar

206 Ibid. Google Scholar

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208 OED, supra note 203.Google Scholar

209 Ibid. Google Scholar

210 “Brundtland Report,” supra note 204. For a useful judicial treatment of the term “sustainability,” including the importance of non-economic “social values,” see Tsilhqot'in Nation v. British Columbia (2007), [2008] 1 C.N.L.R. 112 at paras. 1295–1301, D.H. Vickers J. (S.C.).Google Scholar

211 See Part D.I, above.Google Scholar

212 Ibid. Google Scholar

213 I am adapting this framework from earlier comments I made on the topic of professionalism (particularly in the context of professionalism from a negotiator's perspective). See Farrow, “The Negotiator-as-Professional,” supra note 15 at 376–77.Google Scholar

214 Because I am developing a general theory of sustainable professionalism in this article, what follows is a sampling of interests that could apply in a range of practice contexts (e.g., corporate, family, real estate, and criminal). It would also be useful—and should be an issue for further research—to look at this theory of sustainability within the context of specific practice areas. One area of particular interest (given its prevalence) and potential challenge, would be the corporate law context, in which clients often wield significant wealth, power and influence vis-à-vis the interests of their lawyers. See MacKenzie, supra note 63 at 1–8 (and accompanying text). As MacKenzie notes, in this world of increased commercialism within the practice of law, the “pressure to condone unethical or even unlawful but lucrative acts can be overwhelming.” I am grateful to Allan Hutchinson for comments regarding this line of inquiry.Google Scholar

215 See Part B, above.Google Scholar

216 Hutchinson, , Legal Ethics, supra note 8 at 213.Google Scholar

217 Ibid. at 214 [emphasis added].Google Scholar

218 A robust theory of client representation must also recognize the variety and diversity of clients and client interests. For a useful treatment of this issue, see e.g. Hutchinson, “Who Are ‘Clients'?”, supra note 170.Google Scholar

219 See Part C, above.Google Scholar

220 Iacobucci, , supra note 36 at 863.Google Scholar

221 Ibid. Google Scholar

222 See e.g. Farrow, “A Profession, Not a Life,” supra note 5.Google Scholar

223 See Part B, above.Google Scholar

224 See e.g. supra note 156 and accompanying text.Google Scholar

225 I recognize that some of these issues are equally of interest to the public, and could therefore be categorized in the fourth—“public interest”—subheading in this part.Google Scholar

226 See Part C.I-II, above.Google Scholar

227 See supra notes 135–38 and accompanying text.Google Scholar

228 For discussions of this contested complexity of the profession, see e.g. H.W. Arthurs, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” (1994-1995) 33 Alta. L. Rev. 800 at 805; Matasar, supra note 23 at 986. See also Hutchinson, “Legal Ethics for a Fragmented Society,” supra note 120; Harry W. Arthurs, Richard Weisman & Frederick H. Zemans, “Canadian Lawyers: A Peculiar Professionalism” in Richard L. Abel & Philip S.C. Lewis, eds., Lawyers in Society: The Common Law World, vol. 1 (Berkeley, Los Angeles: University of California Press, 1988) at 123; David A.A. Stager with Harry W. Arthurs, Lawyers in Canada (Toronto: University of Toronto Press, 1990) at 321; Hazard, Jr. & Rhode, The Legal Profession, supra note 76, c. 3; and David B. Wilkins, “Identities and Roles: Race, Recognition, and Professional Responsibility” (1998) 57 Md. L. Rev. 1502.Google Scholar

229 See e.g. McClintock, supra note 14.Google Scholar

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231 Report of the CBA Task Force on Gender Equality in the Legal Profession, Touchstones for Change: Equality, Diversity and Accountability (Ottawa: CBA, 1993) at 17. To date, only limited success in furthering the bar's commitment to a robust sense of equality has obtained. See e.g. Chief Justice of Ontario Advisory Committee on Professionalism, “Elements of Professionalism” (October 2001, rev. December 2001 and June 2002), online: <http://www.lsuc.on.ca/media/definingprofessoct2001revjune2002.pdf>. See further Rosemary Cairns Way, “Reconceptualizing Professional Responsibility: Incorporating Equality” (2002) 25 Dal. L.J. 27..+See+further+Rosemary+Cairns+Way,+“Reconceptualizing+Professional+Responsibility:+Incorporating+Equality”+(2002)+25+Dal.+L.J.+27.>Google Scholar

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233 For code-based recognition of the importance of diversity in local communities, see e.g. LSUC, Rules, supra note 10, r. 1.03(1)(b). For recent comments on the modern make-up of civil society, see e.g. Unnati Gandhi, “Facing up to a new identity” The Globe and Mail (3 April 2008) A1; Anthony Reinhart, “A nation of newcomers” The Globe and Mail (5 December 2007) A1. For general background discussions, see Leopold Posposil, “Legal Levels and Multiplicity of Legal Systems” in Anthropology of Law: A Comparative Perspective (New York: Harper & Row, 1971) at 97; Sally Engle Merry, “Legal Pluralism” (1988) 22 Law & Soc'y Rev. 869; Franz von Benda-Beckmann, “Comment on Merry” (1988) 22 Law & Soc'y Rev. 897; David Held et al., Global Transformations: Politics, Economics and Culture (Stanford: Stanford University Press, 1999) at 1–28; Boaventura de Sousa Santos, “Nature and Types of Globalization(s)” in Toward A New Legal Common Sense: Law, Globalization, And Emancipation, 2d ed. (London: Butterworths, 2002) at 177. For early comments of mine on the topic, see e.g. Trevor C.W. Farrow, “Reviewing Globalization: Three Competing Stories, Two Emerging Themes, and How Law Schools Can and Must Participate” (2003) 13 Meikei L. Rev. 176, trans. into Japanese by M. Kuwahara, (2003) 44 Aichigakuin L. Rev. 29, republished (2004) 5 J. Centre Int'l Stud. 1.Google Scholar

234 See e.g. Rhode, , Interests of Justice, supra note 66 at 71.Google Scholar

235 Kaufman, Andrew L., “A Commentary on Pepper's ‘The Lawyer's Amoral Ethical Role'” (1986) 11 Am. B. Found. Res. J. 651 at 655.Google Scholar

236 For commentary raising this type of concern, see e.g. Dash, supra note 13 at 220 (“If a lawyer says my moral judgments don't allow me to support this particular person, even though I know he has a legal case, who will represent that person?”). See also Rhode, supra note 66 at 57; Ibid. Google Scholar

237 I am anecdotally aware that such cases do exist, particularly in more rural contexts.Google Scholar

238 Developed further, below, in Part D.III.Google Scholar

239 See e.g. Kaufman, , supra note 235.Google Scholar

240 In addition to the issue of adversarialism, discussed in this section, another practice-related issue of interest to a sustainable understanding of professionalism is the issue of civility. See e.g. Michael Code, “Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007) 11 Can. Crim. L. Rev. 97. But see Alice Woolley, “Does Civility Matter?” (2008) 46 Osgoode Hall L.J. 175.Google Scholar

241 See Tanovich, , supra note 25 at 282 [citation omitted]. For previous discussions of mine on settlement rates, see e.g. Trevor C.W. Farrow, “Dispute Resolution, Access to Justice and Legal Education” (2005) 42 Alta. L. Rev. 741 at 749, n. 43; Trevor C.W. Farrow, “Public Justice, Private Dispute Resolution and Democracy” in Ronalda Murphy and Patrick A. Molinari, eds., Doing Justice: Dispute Resolution in the Courts and Beyond (Canada: Canadian Institute for the Administration of Justice, 2009) 301 at 321, n. 59.Google Scholar

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243 For a recent discussion of the varied roles of modern lawyers, specifically including their role as settlement counsel, see Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver: UBC Press, 2008). For a review of the Macfarlane book, see Andrew Pirie, (2008) 46 Osgoode Hall L.J. 203.Google Scholar

244 See Parts C.I-II, above.Google Scholar

245 Tabor, , “President's Message,” supra note 132.Google Scholar

246 CBA, Code, supra note 27 at ix.Google Scholar

247 Discussed in supra note 103 and accompanying text.Google Scholar

248 Wood, , supra note 201 at 1–4.Google Scholar

249 Luban, , “Social Responsibilities of Lawyers,” supra note 159 at 955.Google Scholar

250 Ibid. Google Scholar

251 Ibid. at 963.Google Scholar

252 Ibid. at 982.Google Scholar

253 Ibid. at 983.Google Scholar

254 See supra notes 135–38 and accompanying text.Google Scholar

255 Kennedy, , “The Responsibility of Lawyers,” supra note 123 at 1161.Google Scholar

256 Hutchinson, , “Legal Ethics for a Fragmented Society,” supra note 120 at 187.Google Scholar

257 Mayer, , supra note 2.Google Scholar

258 See Law Society Act, supra note 109, s. 4.2.Google Scholar

259 See Tanovich, , supra note 25.Google Scholar

260 See Law Society Act, supra note 109, s. 4.2.Google Scholar

261 See e.g. Ab Currie, “A National Survey of the Civil Justice Problems of Low—and Moderate—Income Canadians: Incidence and Patterns” (2006) 13 Int'l J. Legal Prof. 217.Google Scholar

262 For a broader discussion of access to justice in Canada, see Roderick A. Macdonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions” in Julia Bass, W.A. Bogart & Frederick H. Zemans, eds., Access to Justice for a New Century – The Way Forward (Toronto: LSUC, 2005) at 19 and Marc Galanter, “Access to Justice as a Moving Frontier” at 147.Google Scholar

263 Law Society Act, supra note 109, s. 4.2. For a useful account of the bar's responsibilities to foster access to justice (which has influenced my thinking on the connections between access to justice and professionalism), see Richard Devlin, “Breach of Contract?: The New Economy, Access to Justice and the Ethical Responsibilities of the Legal Profession” (2002) 25 Dal. L.J. 335. See also Hutchinson, Legal Ethics, supra note 8 at 85–88.Google Scholar

264 See Parts B and C, above.Google Scholar

265 See supra notes 3–14, 32, and accompanying text.Google Scholar

266 See Part C.IV, above.Google Scholar

267 Trial of Queen Caroline, supra note 68.Google Scholar

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272 See Farrow, , “The Negotiator-as-Professional,” supra note 15 at 388, n. 62. This hypothetical case, and my use of it in previous commentary and in class discussions, has been directly influenced by Duncan Kennedy's initial development of a similar scenario. See Kennedy, “The Responsibility of Lawyers,” supra note 123 at 1161.Google Scholar

273 See Farrow, , “Negotiator-as-Professional,” ibid. See similarly Rob Atkinson's treatment of Lord Darlington's instructions to his butler (Mr. Stevens) to “let … go” all the “Jews on the house staff” in the interests of the “safety and well-being” of his guests, based on Kazuo Ishiguro, The Remains of the Day (New York: Alfred A. Knopf, 1989), in Atkinson, “Perverted Professionalism,” supra note 41 at 181–84.Google Scholar

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275 See Farrow, , “The Negotiator-as-Professional,” supra note 15 at 388, n. 62 and accompanying text.Google Scholar

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277 Rhode, , Interests of Justice, ibid. at 71.Google Scholar

278 See supra note 272 and accompanying text.Google Scholar

279 See supra notes 71–76 and accompanying text.Google Scholar

280 See supra notes 135–38 and accompanying text. See further supra notes 252 and 272 and accompanying text.Google Scholar

281 See e.g. supra notes 46, 154–56 and accompanying text. See also Part D.II, above.Google Scholar

282 From Part D.II, above. See supra note 197 and accompanying text.Google Scholar

283 Dolovich, , supra note 76 at 1670.Google Scholar

284 Wasserstrom, , “Legal Education,” supra note 37 at 155.Google Scholar

285 Rhode, , “Persistent Questions,” supra note 3 at 659–60. See generally Rhode, Interests of Justice, supra note 66, c. 7.Google Scholar

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288 See Law Society Act, supra note 109, s. 4.2.Google Scholar

289 See e.g. McClintock, , supra note 14 and accompanying text.Google Scholar

290 See Marx, , “Eighteenth Brumaire,” supra note 1 at 595.Google Scholar

291 See Dodek, , “Canadian Legal Ethics,” supra note 8. See also Michael Proulx & David Layton, Ethics and the Canadian Criminal Law (Toronto: Irwin, 2001) at 7–10.Google Scholar

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293 Matasar, , supra note 23 at 986.Google Scholar

294 Ibid. Google Scholar

295 Plato, trans. by Jowett, supra note 50 at Bk. I, 352d.Google Scholar

296 See Mayer, , supra note 2.Google Scholar