A lawyer’s civility is Jim Flaherty’s legacy

A quarter century ago, I sat in an official examiner’s chambers across Jim Flaherty (still a senior motor vehicle litigation lawyer) as he questioned my client, the surviving mother of an accident victim who had perished at the hands of a drunk driver.  He hadn’t exactly over-prepared for the encounter.  There were none of the usual probing questions.  He entered the room, offered my client his condolences, asked some standard discovery questions, and left.  In retrospect, he knew what I had advised my client he should know: that it did not serve his insurer client’s interests to be on the wrong side of justice.

Last year, those who witnessed Flaherty’s response to Toronto Mayor Rob Ford’s disgrace saw a Ford family friend, federal politician and former provincial attorney general grapple with the right thing to do and say when asked to comment.   “At the end of the day,” Flaherty said, “he [Ford] has to make his own decision about what he ought to do.”  In hindsight, this terse statement was the most measured and meaningful.  Ford’s reported response to Flaherty proved a rare moment of genuine contrition from the mayor.

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Reading the #TWU Community Covenant as Contract

We don’t read the Bible any more.  Perhaps it is the association with early starts on Sundays that puts many people off.  We have a phobia about the Bible, and perhaps much of religion altogether.  This is a shame.  Apart from being the most important text in human history, it contains passages of unrivaled beauty and evidence that mankind strives to understand the meaning of existence itself.

As I heard the various arguments in the debate over Trinity Western University’s (TWU) application to have a law degree accredited by Canadian law societies, the focus of the discussion was on its Community Covenant.  It is an agreement to be signed by all new students.  Much of it is motherhood and reflects the desire of a school founded by a Christian order to promote a particular learning environment.  During the debate, we have heard the voices saying it is discriminatory against the LGBTQ community, that it is not discriminatory, that it is discriminatory but justified, that it is discriminatory but exempt from human rights legislation, and perhaps several other permutations of this discussion.  I have set out my analysis of the issue in my lengthy Submission to LSUC re TWU Matter.  Personally, as one who attended a faith-based university for my undergraduate studies, I believe a TWU law school would have a lot to offer the legal academy.  It is not the law program, but rather the admissions policy, that is the problem.

Read it like you would, if a client asked you to read it, including the fine print

The discussion thus far has avoided reading the actual document for what the words say.  The Community Covenant is not a unilateral statement of faith, as TWU is perfectly entitled to state.  It is bilateral between the school and the student.  It is a contract of adhesion which states:

In making this pledge, members enter into a contractual agreement and a relational bond.

It is a legal agreement, and so the failure to read it and to understand what it says, including the references and footnotes, has been our gravest error thus far.  Those who profess not to understand the objections made to the Community Covenant argue that Christian lawyers who follow the teachings in the Bible can and do represent those who do not follow those teachings.

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Better late than too late: How are law societies to respond to #TWU?

A decade from now, after the dust of court challenges has settled, a Canadian law society president near you may be calling to the bar a graduate from the Trinity Western University Faculty of Law (TWU).  TWU is a faith-based private college requiring its students to sign a “Community Covenant Agreement” banning “sexual intimacy that violates the sacredness of marriage between a man and a woman.”  Considered a thinly veiled exclusion of members of the LGBT community, the document’s previously litigated antecedent required students to refrain from “biblically condemned” conduct, including “homosexual behaviour.”  The prospect of law societies conferring licences on TWU graduates frightens and angers many in the legal community.

The outcry represents a broadly-based—although not unanimous—negative reaction to TWU’s application to the Federation of Law Societies of Canada (FLSC) to have its law program accredited for students applying to become lawyers.  The TWU contract offends the constitutional and quasi-constitutional Canadian values expressed in our Charter of Rights and Freedoms, Bill of Rights and human rights codes, but those statutes do not reach the academic policies of a private school.  The TWU application therefore challenges the resolve of the Canadian bar as the legal sector stumbles to catch up with the rest of society on the diversity file.  (Lawyers are far away from being able to claim a moral high ground.)

Not all lawyers oppose the TWU bid for a law school.  The dissenting camp falls into two general groups.

The first group express a desire to absent the bar from the debate.  They preface their comments saying they disagree with the discriminatory conduct.  Their message is that bar regulators are ultra vires of their statutory mandates to refuse to admit TWU graduates to the bar if the graduates (1) are competent to practice law and (2) do not violate the human rights of clients and others once they enter legal practice.

The second group of dissenters argue that a significant sector of higher education in Canada has been founded by religious orders.  They say TWU is no different, say, from Trinity College, the Anglican school founded by Bishop Strachan where I studied for my B.A. and next to which I attended law school at the University of Toronto.  (Strachan, a Loyalist believer in political influence through education rooted in Church of England doctrine, founded Canada’s other university named Trinity, in 1851, after King’s College was secularized as the University of Toronto.)

What is still missing from the discourse, especially on the side of the majority reaction to TWU’s application for accreditation, is a jurisprudential response to the grounds the university has raised.  This is a problem for the majority because lawyers and law societies must uphold the law.  If the bar is to debate the issue constructively, its members must do so qua jurists, not as an ad hoc protest party.

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“Micro-ethical” issues key to teaching professionalism

In a much-anticipated research paper on training lawyers to be ethical professionals, Shelley M. Kierstead of York University’s Osgoode Hall Law School and University of Toronto’s Erika Abner have published groundbreaking work in “Learning Professionalism in Practice.”  How and where do lawyers learn to be professional?  What are the modes of learning?  Is professional ethics the responsibility of law society regulators, the legal academy, or the profession?  Can ethical lawyers bring “swimmers” onto their lifeboat?

The paper, funded by a fellowship grant from the Chief Justice of Ontario’s Advisory Committee on Professionalism (now the OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism), explores the occupational setting of lawyers as an environment replete with “micro-ethical moments”:

“Mindful practice, which incorporates self-awareness and critical reflection on these micro-ethical moments, is learned through apprenticeship models that allow for on-going modeling, close observation, reflection and feedback. In particular, new learners learn to develop a certain level of comfort with uncertainty – a hallmark of professional practice.”

To review the abstract and paper, click here.  For more information regarding the fellowships, visit the OBA Foundation Chief Justice of Ontario Fellowships site.

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2013 : The year of ethical lapses among high-performing professionals

If there has been a mystery from the events of 2013, it is the emergence in Canadian public life of respected professionals as instigators of questionable deals and conflicts of interest.  The intrigue surrounding Senator Mike Duffy captured national attention, but we were also mindful of the fact that, in Québec, it was getting hard to find anyone with a clean past to step into the glare of municipal politics.  In law, we ended the year with the disappearance and death of Javed Heydary, and the trail of missing millions from his trust account.

What is common to the cast of characters is that all the alleged culprits – many of them lawyers and other professionals – were high-achieving, Type A personalities who commanded wide respect and loyalty.  Many in the legal profession and academy have been scratching their heads to find an explanation.  Have we had enough oversight?  Regulation?  Statutory penalties?

Maybe, just maybe, we have to study the high-performing professionals themselves.  After all, ethical lapses originate in the mind.  Can we see the behaviour as imbalances of innate and acquired cognition?

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