Obiter Dicta Issue 13 - March 24, 2014 | Page 9
page 9
Taking Legal Ethics Seriously
DANIEL ADLER
Contributor
Open any textbook on applied ethics, and you
will find the same issues arising again and again:
global economic justice, climate change, criminal
punishment, world hunger, corporate responsibility, animal welfare, biotechnology. Philosophers
don’t agree on much, but almost all of them will
tell you that these issues are the biggest ethical
challenges of our time. In fact, ask any theologian,
and they will probably tell you the same thing
(although they would probably add homosexuality
and abortion to that list).
Before starting law school, I did a master’s
degree in philosophy, where I focused my studies
on ethics. And predictably, these were the issues
that kept arising.
When I decided to start studying law, I was
excited to learn that legal ethics was a core part
of the law school curriculum. I had assumed that
a course on legal ethics would address the ethical
dilemmas that lawyers face, given the role they
often play in these issues. I was looking forward
to this because I know that if and when I become a
lawyer, these will be the issues that I face.
The unfortunate reality, however, is that the
legal profession is not actually interested in teaching law students about acting ethically. They want
to teach us about behaving respectfully to people
of other cultural backgrounds, about conducing
ourselves civilly with judges and opposing counsel,
and about respecting the interests and privacy of
clients.
But this is not legal ethics. This is legal etiquette. And while it is an important part of ensuring a smoothly functioning legal profession, it has
more to do with cultural norms of behaviour and
almost nothing to do the big questions of right and
wrong. This is not to say that we shouldn’t study
legal etiquette. We should. But calling it legal
ethics distracts scholars and students from the
real ethical issues that lawyers face, and the countless ways lawyers are complicit in creating – and
indeed, acting to perpetuate – injustice and evil.
Unfortunately, there are too many examples
of this. Take Choc v Hudbay. Lawyers for a large
mining company are working to prevent that company from facing legal responsibility for the violent
actions of a security company it hired in Guatemala.
Look at the massive ethical issues here: Given the
power of many multinational corporations, should
they not be responsible for the consequences of
their work on communities in foreign countries?
What role do Hudbay’s lawyers play in perpetuating the suffering of those Guatemalan villagers?
What role do they play in perpetuating environmental degradation and pollution in Guatemala?
What are the consequences of that environmental
OPINION
harm for future generations and other species?
Lawyers that represent large corporations face
ethical dilemmas simply as an implication of the
ethical dilemmas those corporations face. What are
the ethical implications of representing a corporation that uses sweatshops in poor countries? Or a
corporation that drills oil in a fragile ecosystem?
Or a corporation that develops military equipment? Or a corporation that owns hundreds of
factory farms? These are important questions, to
which the volumes written about them can attest.
Any law student that will one day represent one
of these corporations must think seriously about
these questions.
Now consider Canada v Bedford. Crown lawyers fought for years to defend laws that put poor
women in prisons because they tried to make their
legal employment safer. Again, there are massive
ethical questions here: Is the state ever justified in
imprisoning people for non-harmful activities? Are
Crown lawyers responsible for perpetuating harm
and injustice to sex workers? What role should
they play in response to inequitable distributions of
wealth in Canadian society?
As with corporate lawyers, Crown lawyers face
ethical dilemmas as an implication of the ethical
dilemmas that governments face. What are the
ethical implications of government surveillance of
internet use? Or forming trade agreements with
repressive authoritarian regimes? Or in allowing
basic needs like education and housing to become
increasingly inaccessible to an increasingly large
segment of society?
Reasonable people will disagree about how to
answer these questions, and I am not trying to
defend one position or another. What I am suggesting, however, is that these are the issues that a
legal ethics curriculum ought to address. These are
the most important ethical challenges we face, and
lawyers can often play an important role in perpetuating them, or simply allowing them to continue.
It is true that the legal profession has started
to address some important ethical issues. For
instance, the concern about access to justice has
become more widely recognized, and important
work has been done to begin addressing it. But it
is only the tip of the iceberg. And if we are to start
taking legal ethics seriously, we need to acknowledge that we still have a long way to go.
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