We, the Lawyers
Is there such a thing as an ideal lawyer, and if so, what makes her ideal?
The answer is not immediately obvious. The very word “lawyer” arouses sentiments ranging from those expressed by Dick the Butcher, who aimed to kill the whole lot of us for shielding Henry VI’s corrupt monarchy, to the universal admiration of Atticus Finch, the perennial embodiment of that which is virtuous, good and fair in our profession.
Whether we are talking about the lawyer of Shakespeare’s time, or Harper Lee’s, lawyers have always held positions of distinction in society. And perhaps with good reason – navigating The Law is no easy task. It is a complex arrangement of statutes and regulations derived from one authority (the legislative will of our elected Parliament) and muddied by another (the contrasting and competing judgments of unelected judges, themselves former lawyers). It has its own peculiar language, complete with antiquated Latin phrases, technical jargon and insider-abbreviation – the ultimate interpretation and facilitation of which involves the industry of adversarial posturing and intellectual fisticuffs by an educated legal professional class.
In all this, the public often sees lawyers as authorities unto ourselves, as expert administrators of justice, the practiced functionaries of a pervasive and yet mystifying system which impacts upon all. As privileged custodians of the rule of law, we must act responsibly, honourably, and with an ingrained sense of integrity to safeguard the proper administration of justice.
The question of what makes the ideal lawyer, therefore, is tied up in our collective professional ethics. Fortunately for those of us currently practicing, an American jurist provided an answer over a hundred years ago that rings true in Canada in 2018.
The Ideal Lawyer is an Ethical Lawyer
In an article published in the November 1906 issue of The Atlantic, Justice David J. Brewer of the United States Supreme Court authored an article titled “The Ideal Lawyer: Is such a being possible?”. In that article, Justice Brewer reflected on his 40-plus years at the dais of various trial and appellate courts, distilling what he observed to be the fundamental qualities of the “Ideal Lawyer”.
Remarkably by today’s standards, there was no code of conduct governing the profession at that time to inform anyone as to what attributes the Ideal Lawyer should possess. Citing to a meeting of the American Bar Association (ABA) held in 1905, Brewer tells us that a committee was appointed “to report upon the advisability and practicability of a code of professional ethics." Ultimately affirming the advisability of such a code, the ABA committee concluded:
“Members of the Bar, like judges, are officers of the courts, and like judges should hold office only during good behaviour. ‘Good behaviour’ […] should be defined and measured by such ethical standards, however high, as are necessary to keep the administration of justice pure and unsullied. Such standards may be crystallized into a written code of professional organizations […] to promote the administration of justice and uphold the honor of the profession. […] Indeed, eventually the people, for the welfare of the community and to further the administration of justice, may, either by constitutional provisions or legislative enactments, demand that all, before being granted by the state the valuable franchise to practice, shall take an oath to support not only the constitution, but such canons of ethics as may be established by law.”
In Canada, the Canadian Bar Association developed and first adopted a Code of Professional Conduct in 1920, which became the original model used by provincial law societies in establishing rules governing the ethical standards by which lawyers in their respective jurisdictions would be bound. Here in Ontario, the Law Society of Upper Canada (Society), as it then was, developed the Rules of Professional Conduct (Rules), which of course express the high ethical ideals to which we who practice in this Province are expected to adhere.
And so, the connection I wish to draw in this article is to highlight the qualities and characteristics of Justice Brewer’s Ideal Lawyer of more than a century ago with the Society’s ethical expectations of us in the 21st century.
The Ideal Lawyer is an Honourable Lawyer
To Justice Brewer, “the one element most important in the make-up of the ideal lawyer” is character. In his experience, “[t]he lawyer who has it has the confidence of the judge and jury; he who has it not is suspected from the moment of his appearance.” For Brewer, character consists of what he calls “a general personal integrity;" it is “a character for honesty and uprightness which attracts general confidence." This high moral character commands an honesty with clients, with the court and jury, with the public, and with the lawyer herself: “[i]t is that thorough, ingrained honesty which knows but one time, and that is life; but one duty, and that is action.”
Likewise with the Society, integrity is “the fundamental quality of any person who seeks to practice as a member of the legal profession” (Rules, Chapter 2: Integrity, Section 2.1-1, Commentary [1]). We lawyers have “a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” (Rules, Chapter 2: Integrity, Section 2.1-1). Indeed, the Society requires of all its members that they be of “good character.” Quite simply, the essential characteristic of the Ideal Lawyer for both Justice Brewer and our own modern regulatory body is personal and professional integrity.
The Ideal Lawyer is an Officer of the Court
Concerning our duty to the Administration of Justice, Justice Brewer reminds us that “[e]very lawyer aims to be honest with his client, and with the court and jury; self-interest compels this. He knows that fidelity is essential to success. […] He knows that success depends largely on the confidence which they have in his truthfulness. […] [T]he ideal lawyer never forgets that he is an officer of the court, and that he as well as the judge is responsible for the just outcome of every trial.”
It is the advocate’s fidelity to honesty and candour with the court and opposing counsel that permits the validity and reputation that is deserving of the Ideal Lawyer. This axiom is similarly captured in the Rules: “When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect” (Rules, Chapter 5: Relationship to the Administration of Justice, Section 5.1-1). And among ourselves, lawyers “shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice” (Rules, Chapter 7: Relationship to the Law Society and Other Lawyers, Section 7.2-1). The Society goes a step further, recognizing that “[m]aintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected” (Rules, Chapter 5: Relationship to the Administration of Justice, Section 5.1-1, Commentary [1]). Our privileged position as Officers of the Court demands today, as it had more than a century ago, that we conduct ourselves with candour, courtesy, and in good faith – all of which are the building blocks of a favourable reputation, the hallmark of a true Officer of the Court.
The Ideal Lawyer is a Responsible Citizen
Regarding the centrally important role that a lawyer plays vis-à-vis the public, Justice Brewer offers: “it may be said that the true lawyer never forgets the obligations which he as a lawyer owes to the republic, that he always remembers that he is a citizen […] But there are special obligations resting upon the profession, and this because of its prominence in public affairs. That prominence demands not alone the ordinary duties of citizenship, but also higher and special duties. […] He must never forget that his local prominence gives importance to his views and that his official recognition throws higher responsibilities.”
Similarly, in the Society’s rendering: “A lawyer shall encourage public respect for and try to improve the administration of justice” (Rules, Chapter 5: Relationship to the Administration of Justice, Section 5.6-1). Again consistent with the opinion of Justice Brewer: “A lawyer’s responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet for the same reason, a lawyer should not hesitate to speak out against an injustice” (Rules, Chapter 5: Relationship to the Administration of Justice, Section 5.6-1, Commentary [1]).
We must carefully guard, therefore, not only our own reputations in the courts and in the community, but also the reputations of both our profession at-large and the very system of which we are all a part – that is, the rule of law and the public which that system was built to protect.
Concluding Thoughts on the Ideal Lawyer
Justice Brewer summarizes the qualities of his Ideal Lawyer in the following way: “that the ideal lawyer will be thoroughly honest in all his relations to individuals and the public; that he will be a constant student; that he must possess brain power and common sense; and that he will never forget that he is a citizen, and that the weal or woe of the public depends largely on his loyalty to high ideals.”
These high ideals, salient as they were over a century ago, remain part-and-parcel of the ethical standards of professional conduct still expected of us today. The Ideal Lawyer is, therefore, also the Ethical Lawyer. And the Ethical Lawyer is the one whose character is imbued with integrity, honour, candour, and courtesy; the Ethical Lawyer is the one who takes seriously the privilege of shouldering the responsibilities accompanying her distinctive position within a free and democratic society; the Ethical Lawyer is the one who not only possesses these high ideals, but also translates them into action, carrying them into her practice both inside and outside the courtroom; the Ethical Lawyer is the one who, in conducting herself in these ways, has the effect of encouraging the public’s confidence in the proper administration of justice.
About the Author:
Craig A. Brannagan is an Assistant Crown Attorney with the Downtown Toronto Crown Attorney’s Office. Craig was called to the Ontario Bar in 2011 and, before joining the Ministry of the Attorney General in 2016, he practiced law as a Criminal Defence Lawyer, specializing in the defence of police officers throughout the Province of Ontario.
Disclaimer: The views expressed in this article are those of the author alone and are not meant to bind the Ministry of the Attorney General in any way, nor do the opinions or views herein represent those of the Ministry of the Attorney General or the Government of Ontario.