Ethics in Practice

This text engages with “metaethical” questions about what is the role of lawyers to advance social justice?, can the law meaningfully impact inequality?, and so on. It also engages normative questions such as “does this particular situation trigger a conflict of interest” and “what are the Law Society requirements for a properly constructed retainer?”. Both are important to understanding client problems, staying licensed, crafting a professional identity, and improving access to justice. This section focuses mostly on the normative aspects of lawyering, particularly because externships occur in a practice rather than solely hypothetical context.

Legal ethics will arise every day in an externship placement. This section highlights some of the key ethical rules that arise in an externship setting. Reference is made to the Law Society of Ontario, but each province and territory will have their own jurisdictional rules. This is not meant as a treatise or comprehensive review of ethical standards, especially because students dive into ethics in depth in a standalone course in Canadian law schools. Rather, this section is meant to trigger students’ awareness that ethical rules exist and how they might arise in an externship.

Federal and Provincial/ Territorial Law Societies

In Canada, normative legal ethics are typically set out by Law Societies. Currently, lawyers are licensed with a particular provincial or territorial law society. The Federation of Law Societies of Canada is the national umbrella connecting the fourteen Canadian law societies. These provincial and territorial law societies regulate lawyers in Canada, notaries in Quebec and (in Ontario only) licensed paralegals. The Federation takes on several notable roles including setting guidelines, developing access to free legal information, assessment of National Committee on Accreditation (NCA) candidates, providing legal education programs, and advocacy on behalf of lawyers and the legal system in Canada.

The Federation also maintains a Model Code of Professional Conduct. Each province and territory has its own Rules or ethical code. The Model Code is both an attempt to nationalize the profession and provide some ethical guidance for the profession. As mobility in the profession becomes more urgent, nationalizing standards is one approach to provincial and territorial professional mobility.

Law Societies are creatures of statute. In Ontario, for example, the Law Society Act sets out the governance and powers of the Law Society of Ontario. Lawyers elect representatives (benchers) to make governance decisions on behalf of the profession. Because lawyers must be licensed to practice in each province or territory, the Rules, fees, licensing process, and so on vary in each jurisdiction.

Duty not to Discriminate

The Law Society of Ontario has included particular note of the duty of lawyers to respect human rights laws and honour non-discrimination in their work, regardless of whether they are working with clients or other members of the bar.

Rule 6.3.1-1 of the Rules of Professional Conduct notes:

“a lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.”