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Professional Regulation Challenges: Perspectives and Responses

Professional Regulation Challenges: Perspectives and Responses (Program)

Russell Christopher, University of Tulsa College of Law (US); Stephen Pitel, Faculty of Law, Western University (Canada) (Moderator); Alain Roussy, University of Ottawa (Canada); and Tom Lininger, University of Oregon School of Law (US)

Professional Regulation Challenges: Perspectives and Responses 

Russell Christopher: Conditioning Settlement Offers on Attorneys' Fees Waivers (Absent a Fee-Shifting Statute)

The Supreme Court in Evans v. Jeff D. upheld the permissibility of defendants conditioning settlement offers on plaintiffs’ counsel waiving their eligibility for court-awarded fees under a fee-shifting statute promoting public interest litigation. The Court and conventional wisdom assumes the ineffectiveness or impermissibility of such offers in ordinary, private civil litigation absent a fee-shifting statute.  That is, the axiomatic assumption is that no litigant permissibly could or effectively would condition a very favorable settlement offer on the opposing counsel waiving fees or the client not paying the fees to which the counsel was entitled through a private contract with the client.  This paper examines this conventional wisdom and axiomatic assumption by considering how exploiting a lawyer’s fiduciary duty to place the client’s interests above the lawyer’s and a lawyer’s duty to abide by the client’s authority to accept settlements may make conditioning such settlement offers effective.  The paper also examines rationales as to why such conditional offers might be impermissible, including tortious interference with a contract.  While not advocating for the use and permissibility of such settlement offers, this paper concludes that the conventional wisdom and axiomatic assumption that they could not successfully be used is questionable. 

Stephen Pitel: Reconsidering Lawyers' Obligations to Raise Contrary Authority

Lawyers in Canada are required when acting as an advocate to inform the court or tribunal of any binding authority they consider to be directly on point that has not been mentioned by another party. The aim of this paper is to review this obligation and evaluate whether it requires modification. This obligation has not been the subject of detailed analysis in Canada. As a comparative point of reference, the paper will draw on experience and analysis from the United States. Possible issues include whether the obligation should be expanded to include relevant persuasive authority or directly on-point scholarly analysis, whether the standard should focus on the lawyer's intention or a lesser mental requirement such as carelessness, and how the obligation should be addressed by courts and tribunals.

Alain Roussy: Legal Ethics and Official Languages

In Ontario, as in other Canadian provinces and in other countries, laws are passed in more than one language. In Ontario, they are passed in English and French. Both versions of the law are "official". In an ideal world, those two versions would say the exact same thing and capture all of the nuances of the other version. That, however, is not the case. Courts have often had to grapple with differences, sometimes glaring, but more often subtle, in the drafting of bilingual legislation and have had to develop methods to interpret that legislation. The inevitable consequence of this is that when a lawyer is reading a statute in only one language, that lawyer cannot be sure that he or she is truly getting the full picture of the law.

A similar phenomenon occurs when Courts in officially bilingual jurisdictions publish their decisions in only one language. This happens at the Court of Appeal for Ontario, for example. Very few decisions are published in English and French. Most decisions are in English only and a small percentage are in French only. Decisions in either language are, of course, binding and may have an important impact on the law. Once again, a lawyer who reads the Court of Appeal's decisions only in one language would be missing out on a portion (large or small) of the Court's jurisprudence. The consequence of this is that a lawyer who ignores laws written in an official language or who ignores decisions published in an official language is not looking at the totality of the law and therefore cannot adequately advise a client. This has an impact on issues of professional negligence, but also on the legal ethics of the lawyer, more specifically on the question of his or her competence.

This proposition may be less controversial in jurisdictions where there are two official languages that are of equal "strength" in the sense that there are approximately the same number of speakers of both languages. There may be a heightened expectation in those jurisdictions that lawyers are capable of operating in both languages. The proposition is, however, more controversial in jurisdictions where there is an important imbalance between the majority and the minority population. Ontario is but one example of such a situation that arises in many countries around the world. In that province, French - though essentially an official language for legislative and Court purposes - accounts for approximately 5% of the population.

Tom Lininger: Green Ethics for Lawyers

The ethical rules for lawyers encourage zealous advocacy on behalf of clients, but do not incentivize lawyers to take steps that could minimize harm to the environment. This Article proposes a comprehensive set of amendments to the American Bar Association (“ABA”) Model Rules of Professional Conduct. The goal is to establish not only opportunities, but also obligations, for lawyers to promote environmental health. Certain proposals in this Article represent only a small extension of the present rules, and deserve consideration for immediate adoption, including a proposed liberalization of confidentiality rules to permit disclosures in the case of imminent environmental harm, an expansion of lawyers’ counseling duties, a reconceptualization of third-party harm, an enlarged scope of supervisory responsibility, and a redefinition of pro bono service. The Article goes on to discuss, without necessarily advocating, some more radical ideas for reform. These include a stricter rule against positional conflicts, a more lenient standard for evaluating frivolity of environmental claims, a heightened obligation of candor with respect to environmental harm, and greater accountability for environmental damage caused by lawyers and firms. The Article concludes by addressing foreseeable objections to its proposals. One possible problem is that an expanded whistleblowing duty might alienate clients from their counsel, increasing the risk of environmental harm. The Article also considers the risk of bifurcating the bar into pro-environment and anti-environment factions. Such concerns necessitate caution, but they cannot justify the ABA Model Rules’ currently tepid approach to protection of the environment.