EDITORIAL
2 Obiter Dicta
Life is short.
Have an affair, compromise your privacy, and face misconduct
charges.
T
o t h e i nc om i ng class of 2018, let the
Obiter Dicta be one of many to welcome you
to Osgoode! Today you take the first step on
a journey of a thousand miles. Your introduction to the practice of law begins with what is
referred to simultaneously as the most and least relevant class of the JD program: Ethical Lawyering in
the Global Community. Before reveling in the wit
of Lord Denning, you must first become acquainted
with all seven chapters of the LSUC’s Rules of
Professional Conduct. In addition, your conceptions
of morality and ethics will be challenged through
episodes of The Practice and lively mock trials.
You may be confronted with dilemmas that involve
sweatshops in Indonesia, disposing of key evidence,
and looming brain aneurisms. To help prepare you
for what awaits, I ask the following question: To
what extent should a lawyer’s private morals inform
their professional ethics?
This question has become especially relevant in
the legal community with the recent Ashley Madison
data leaks. For those unaware, Ashley Madison is
an online dating service for married individuals
looking to have an affair. The hacker group Impact
Team released over 9.7 gigabytes of account details
for nearly 32 million users of the site on August 18.
Several of these user profiles have been linked to Bay
Street firms, sparking debate over whether adultery should be subject to discipline under the LSUC’s
Rules on professional integrity. The supporting argument is premised on the idea that these acts negatively impact the lawyer’s credibility. It is suggested
that a lawyer who actively pursues an opportunity to
break their wedding vows can be equated to someone without fidelity to their word, and therefore
untrustworthy as both a spouse and a lawyer.
The issue forces an examination of the nexus
between a lawyer’s private life and its impact on
their professional obligations. Author Daniel R.
Coquillette writes that the law is “not merely a trade
but rather a profession, which entails a higher calling in pursuit of the public interest.” He suggests
that it is a delusion of young, inexperienced lawyers to think they can separate their personal lives
from their professional ones, or that they can separate their personal and professional ethics. The
philosophical underpinnings of this line can be
found in Plato’s Republic, where it is argued that
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“You cannot live without the lawyers, and
certainly you cannot die without them.”
joseph h. choate
ê Our society is coming to terms with the fact that people’s personal lifestyle choices should not impact their professional lives. Millions of people have affairs —politicians and lawyers are no exception. Photo credit: Thewire.com
the members of the guardian class have no private
life apart from their political duties. It could be said
that by virtue of taking on the responsibility of certain occupations such as a politician and lawyer, the
private individual makes himself publicly available.
This may be seen as implicit consent to be publicly
scrutinized for both public and private action.
Many hold the belief th at lawyers should be held
to a higher standard in order to justify their privileged position in society. The Federation of Law
Societies of Canada has addressed the question of
whether lawyers are bound by their code of professional conduct in all respects and at all times. It was
the Federation’s position that lawyers are bound at
all times by their code of professional conduct when
their conduct relates to the protection of the public,
respect for the rule of law, or the administration of
justice. The Federation also confirmed that a special ethical and social responsibility comes with
membership in the legal profession, and the unique
and privileged position that a lawyer holds in society requires the lawyer to refrain from acts that are
derogatory to the dignity of the profession.
The commentary for the LSUC’s Rules on integrity speaks to how a lawyer’s dishonourable or
editorial board
editor-in-chief | Sam Michaels
managing editor | Erin Garbett
creative director | Heather Pringle
editorial staff
business managers | Alvin Qian,
Vincent Neil Ho
communications manager | Carla Marti
news editor | Simmy Sahdra
opinion editor | Nadia Aboufariss
arts & culture editor | Kathleen Killin
sports editor | Kenneth Lam
website editor | Asad Akhtar
questionable conduct in either their private life or
professional practice can reflect adversely on the
integrity of the profession and the administration of justice. However, it also notes that the Law
Society will not concern itself with the purely private or extra-professional activities of a lawyer
that do not bring the lawyer’s professional integrity into. This does little to clarify whether adultery
can be viewed as a purely private activity that does
not bring professional integrity into question. For
additional guidance, the CBA Code of Professional
Conduct provides illustrations of conduct that may
be viewed as dishonourable or questionable. The
most relevant example cited is committing any personally disgraceful or morally reprehensible offence
that reflects upon the lawyer’s integrity (of which
a conviction by a competent court would be prima
facie evidence). This language seems to suggest that
the offensive behaviour ought to be illegal to attract
the attention of the Law Society. Though distasteful
and grounds for divorce, adultery is not necessarily
a criminal offence.
staff writers
Evan Ivkovic, Shannon Corregan, Anthony
Choi, Michael Motala
l ayout staff
Rachel McPherson, Karen Wang
contributors
Jermain Virgo, Kareem Webster
Submissions for the September 14 issue are
due at 5pm on September 5, and should be
submitted to: [email protected]
» see editorial, page 14
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