Transcript Class 3 & 4, The Formation of the Lawyer Client Relationship

Legal Ethics and
Professional
Responsibility CML1105G
Professor Adam Dodek
Class 3 & 4
The Formation of the
Lawyer-Client Relationship
What are we going to do today/this week?
• Defining Features of the Lawyer-Client Relationship
• Overview of the Lawyer-Client Relationship
– The Formation of the Lawyer-Client Relationship I:
• Advertising and Solicitation
• The Big Decision – Choice of Client and Access to
Justice; Competency
• Sign up for paper topics by end of day Wednesday
Legal Ethics, Feb. 8 & 9, 2011
The Three Historical Cardinal Sins of
Lawyering
• Maintenance – maintaining, supporting or promoting another
person’s lawsuit (i.e. stirring up litigation)
• Champerty – A specific form of maintenance wherein a lawyer
pursues a party’s claim in consideration for receiving part of the
judgment
• Barratry – The offence of frequently exciting or stirring up
groundless lawsuits
Legal Ethics, Feb. 8 & 9, 2011
Formation of the Lawyer-Client Relationship
• Advertising, solicitation, choice of clients and accessibility of
legal services
• Professionalism v. Commercialism
• CJO “Elements of Professionalism”
– Scholarship, Integrity, honour, leadership, independence,
pride, spirit, collegiality, service and balanced commercialism
• Equality? Diversity? Multiculturalism? Recall Backhouse and
Cairns-Way
Legal Ethics, Feb. 8 & 9, 2011
Competing concerns
• Idea of obligation to make legal services available
• Market Norms
• “Lawyers should make legal services available to the public in
an efficient and convenient matter that will command respect
and confidence, and by means that are compatible with the
integrity, independence and effectiveness of the profession.”
(CBA Code, c. XIV)
• LSUC Rules, Rule 3.01 Making Legal Services Available
Legal Ethics, Feb. 8 & 9, 2011
What is Advertising?
• “Marketing Legal Services”
• “Marketing Activity”
• LSUC Rule 3 Marketing Legal Services
3.02 (1) In this Rule, "marketing" includes advertisements and
other similar communications in various media as well as firm
names (including trade names), letterhead, business cards and
logos.
Legal Ethics, Feb. 8 & 9, 2011
Different types of advertisements
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Billboard
Yellow Pages
Print / newspapers / other publications
Websites
Lawyer Referral Services (Bar Association / Internet)
Radio / Television / YouTube
Infomercials – see www.taxamnesty.ca
Newsletters/Blogs
Lawyer Classified / Craigslist?
Legal Ethics, Feb. 8 & 9, 2011
Advertising
• Clash of paradigms: Promoting access to justice v. selling soap
(commodification)
• Promote consumer choice? Branding?
• CBA Guiding Principles (GP), c. XIV (Text 130) / LSUC Rule 3
• GP 8 – response to Jabour
• How is someone who needs a lawyer going to find one?
• Which lawyers advertise?
• Who are the target groups or markets?
• Clients – corporate, high, middle and low-income
• Other lawyers – referrals; recruiting (or poaching)
• Law schools, law students
• Others?
Legal Ethics, Feb. 8 & 9, 2011
Advertising: The Good, the Bad and the Ugly
• What are the sources for ethical evaluation of lawyer
advertising?
• Rules – re advertising
• Other rules – duties to other lawyers, to the profession, nondiscrimination
• LSUC Rule 3.02 (2) A lawyer may market legal services if the
marketing
(a) is demonstrably true, accurate and verifiable,
(b) is neither misleading, confusing, or deceptive, nor likely to
mislead, confuse or deceive, and
(c) is in the best interests of the public and is consistent with a
high standard of professionalism.
Legal Ethics, Feb. 8 & 9, 2011
LSUC Commentary on Rule 3.02
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Examples of marketing that may contravene this rule include:
a. stating an amount of money that the lawyer has recovered for a
client or referring to the lawyer's degree of success in past cases,
unless such statement is accompanied by a further statement that past
results are not necessarily indicative of future results and that the
amount recovered and other litigation outcomes will vary according to
the facts in individual cases;
b. suggesting qualitative superiority to other lawyers;
c. raising expectations unjustifiably;
d. suggesting or implying the lawyer is aggressive;
e. disparaging or demeaning other persons, groups, organizations or
institutions;
f. taking advantage of a vulnerable person or group;
g. using testimonials or endorsements which contain emotional
appeals.
Legal Ethics, Feb. 8 & 9, 2011
The evolution (?) of Advertising . . .
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Donald Jabour (1982)  Rocket (1990)
USA: Bates v. State Bar of Arizona (1977)
Jacoby & Meyers
– http://www.youtube.com/watch?v=eQbsPH3jt3Q
– http://www.youtube.com/watch?v=88rsHIJ9J00&feature=rel
ated
– http://www.youtube.com/watch?v=F5bFyWAgY1w
Legal Ethics, Feb. 8 & 9, 2011
Lawyer Idol: Round I - Personal Injury
• Toronto Slip and Fall (Bergel)
http://www.bergellaw.com/slip-fall-personal-injury-claim.htm
• Neinstein
• http://www.neinstein.com/expertise/slip-and-fall
• Personal Injury Lawyer Rap?
• http://www.youtube.com/watch?v=PBEWHy6khZw
• Lowell “The Hammer” Stanley
• http://www.youtube.com/watch?v=62xreSr25uI&NR=1
Legal Ethics, Feb. 8 & 9, 2011
More Personal Injury
• “For the People”
http://www.forthepeople.com/settlements_auto_accidents.htm
• The Bully Lawyer
http://www.youtube.com/watch?v=AlarMN5SCs4&NR=1
• Recall Donald Jabour
Legal Ethics, Feb. 8 & 9, 2011
Round 2 – North-South Battle
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Barrister Sonia Virk, Surrey, BC
http://www.youtube.com/watch?v=ohNDq72kloo
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“I Fix Problems”
http://www.youtube.com/watch?v=An0xB6pomp0&feature=related
“The choice of a lawyer is an important decision and should not be
based solely upon advertisements. Gross amounts referenced are
before fees and expenses. Past results afford no guarantees of future
results. Every case is different and must be judged on its own merits.
Co-counsel may be utilized depending upon the nature of the inquiry
and jurisdiction.”
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“Lock and Load”
http://www.youtube.com/watch?v=XOajzfDQbKU&NR=1
Legal Ethics, Feb. 8 & 9, 2011
Life is Short, Get a Divorce (?) (!!!)
• Life is Short, Get a Divorce (Billboards)
http://www.lifeshortgetadivorce.com/
• http://www.fgalawfirm.com/index.html
• Explanation http://www.fgalawfirm.com/articles/press.PDF
• Interview http://video.msn.com/video.aspx/?mkt=enus&brand=msnbc&fg=email&vid=61c06760-67a4-49a2-904bc103e97491dc&from=00
• SWAG - http://www.lifeshortgetadivorce.com/products.html
• Recall Maintenance, Champetry & Barratry…
Legal Ethics, Feb. 8 & 9, 2011
Family Law . . .
• Don’t Be a Weekend Parent
http://www.youtube.com/watch?v=BDRBHGQ_fg&feature=related
• Arguably the best lawyer in Toronto?
http://www.irvingsolnik.com/?gclid=COGB7ZaF0JgCFQZinAodwqzzw
• DivorceEZ - http://www.youtube.com/watch?v=JXiJQVyLelM
• Chopsticks?
http://www.advertolog.com/divorce-lawyer/printoutdoor/chopsticks-11963705/
• Business Card????
http://www.advertolog.com/divorce-lawyer/printoutdoor/business-card-11089355/
Legal Ethics, Feb. 8 & 9, 2011
Classified and Print Ads
• WAS HIS http://2.bp.blogspot.com/_2oq2bSNS9o/RjZ681OGbOI/AAAAAAAAACc/QxDvh9oH7rc/s1600h/washis.jpg
• Roar!
https://mail.uottawa.ca/OWA/redir.aspx?C=c3a22be6f930453
4b9f7800b709bae9d&URL=http%3a%2f%2fcdnlawyerinhous
e.clbmedia.dgtlpub.com%2f2011%2f2011-0228%2fhome.php%3fpage_view%3d8
• Peter “P’Ta Mon” John, “The Thugs Lawyer”
http://lawyerist.com/a-study-in-marketing-peter-pta-mon-johnthe-thugs-lawyer/
Legal Ethics, Feb. 8 & 9, 2011
Legal Ethics, Feb. 8 & 9, 2011
Criminal
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Yellow Pages
“Friends don’t let friends plead guilty”
http://www.topgundui.com/video/player/41786-introduction
Top 10 Reasons
http://www.privatedefender4u.com/Do_You_Need_a_Lawyer.ht
ml
Canadian entrepreneurship
Legal Ethics, Feb. 8 & 9, 2011
Lawyer Referral Networks . . .
• Hurt 911 - http://www.hurt911.org/
• Lawyershop.ca http://www.lawyershop.ca/
• Find a Lawyer http://www.findlawyerattorney.com/
• Lawyerahead.ca - ?
http://www.youtube.com/watch?v=Bc0mnMbVL2Q&NR=1
• LSUC Lawyer Referral Service
http://www.lsuc.on.ca/public/a/faqs---lawyer-referral-service/
Legal Ethics, Feb. 8 & 9, 2011
What about Law Firm Ads aimed at students /
public?
• Osler Lawyer on a motorcycle?
• Is it ethical for law firms to use models in their advertisements?
• Faux diversity . . .? Misleading?
• What are law firms trying to convey to you?
Legal Ethics, Feb. 8 & 9, 2011
Modern Forms of Advertising
• Blogs / wikis / Facebook / YouTube / Other?
• Should law societies be concerned about these?
• Where are we going in the future of lawyer advertising?
Legal Ethics, Feb. 8 & 9, 2011
Solicitation
• Specific form of advertising
• Maintenance/Barratry
• Competing concerns:
– Making people aware of their rights who might not otherwise
act upon them v. taking advantage of vulnerable
– Frivolous litigation v. social change (NAACP)
• LSS v. Merchant (135-146)
• Compare penalty to Jabour
• Notes and Questions pp. 146-47
Legal Ethics, Feb. 8 & 9, 2011
Different Forms of Solicitation
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In-person (“The Ambulance Chaser”)
Letter
Direct e-mail (spam?)
Pop-ups
Legal Ethics, Feb. 8 & 9, 2011
Self-Promotion
• Lawyers in the Media / Talking Heads etc.
• Competing considerations
Legal Ethics, Feb. 8 & 9, 2011
The Lawyer Client Relationship
• Formation of the Lawyer-Client Relationship
– Advertising
– Solicitation
– Choice of Client
– Accessibility of Legal Services
• Competency – Are you up for the job?
Legal Ethics, Feb. 8 & 9, 2011
Moral Non-Accountability or “Taking it
Personally”?
• Thank You for Smoking
• What are the parallels between a lobbyist for big tobacco and
lawyers?
• “Moral flexibility” – idea that to be a lawyer you need to
subordinate your morals / your everyday morality in order to
advance the interests of a client?
Legal Ethics, Feb. 8 & 9, 2011
Ethical Crossroads in your Career
• Choice of Client . . .
• What to do when a client wants you do something that may not
be illegal or improper but makes you uneasy or you think is
unethical or immoral?
• What do when a partner asks you do something . . .?
• Choice of job is the single most important ethical decision
you will make in your career
• What field are you going to work in?
• What firm/organization/etc are you going to work for?
• Everyone is entitled to a lawyer…but no one is entitled to you as
a lawyer.
• What sort of lawyer are you going to be?
Legal Ethics, Feb. 8 & 9, 2011
Choice of Client
• Moral non-accountability v. taking it personally
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Moral non-accountability - emphasizes structure/procedure
Lawyer as the guide through the maze of the justice system
Lawyer is the advocate not the judge
Social good that promotes the fair administration of justice
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Moral Accountability / Taking it Personally
Law is an instrument of power
Costs and benefits to choices made in legal practice
Lawyers need to take responsibility for their choice of clients
and for the strategies they deploy
Legal Ethics, Feb. 8 & 9, 2011
Moral (non-) Accountability
• Edward Greenspan, Greenspan: The Case for the Defence
(non-accountability)
• Allan Hutchinson / Trevor Farrow (accountability)
• Michel Proulx & David Layton (text 165)
– Some discretion
– Severe personal distaste
• Hutchinson’s version of “the Talk” (166)
• Group Discussion: Hutchinson v. Proulx & Layton
• Discussion: Notes and Questions 167
Legal Ethics, Feb. 8 & 9, 2011
Client selection / discrimination
• Discussion question – Text 168
• Permissible v. Prohibited Discrimination (Discrimination v.
discrimination)
• “source of income”
• Lawyers advertising – what sorts of client selection /
discrimination do you think they employ?
• Question 1 – page 169 – what is the effect of chapter 20?
• Group work: Scenarios 1-2, 3-4, 5-6
Legal Ethics, Feb. 8 & 9, 2011