The Advisory: Volume 8, Issue 1, January 2010

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Model Code Sets National Standards of Conduct

By Mona Duckett, QC, Federation of Law Societies of Canada Council Member Appointed to Represent Alberta

The Model Code of Professional Conduct was drafted as a national code for Canadian lawyers, and was approved by the Federation of Law Societies of Canada (FLSC) on October 15, 2009.

Why a Model Code?

The impetus behind the development of the Model Code included the increased mobility of lawyers across Canadian jurisdictions, a belief that there are national and international ethical standards for the practice of law which should be reflected in consistent conduct rules across the country, and external factors such as changes to the money laundering legislation which brought core values of the profession under scrutiny.

This prompted the creation of a FLSC Model Code Committee in November 2004. The Model Code became one of the first “national standards” initiatives taken on by the Federation.

The Committee began its work with two distinct goals in mind, the first to create a national Model Code, and, the second, to subsequently encourage each jurisdiction to adopt the Model Code as its own. The Committee was comprised of both staff of various law societies and volunteers. Past Law Society of Alberta Bencher Brad Nemetz, QC represented Alberta.

Who provided input?

The process of drafting included a review of all professional conduct rules across Canada as well as the CBA Code. After much spirited debate regarding wording, ethical imperatives and practical considerations, provisions were drafted and re-drafted, with some representing positions of compromise and some reflecting no consensus. The Model Code then underwent the following reviews and presentations:

  • A draft Code presented to FLSC in May 2007.
  • In August 2007, it was sent to law societies in an effort to identify specific issues, and assess whether that law society would be able to accept the Model Code’s approach.
  • In February 2008, the Law Society of Alberta Benchers approved the Model Code as a national model for the Federation “in principle”.
  • From March to November 2008, a Model Code Implementation Committee, which I had the privilege of chairing, reviewed all responses and produced a final draft which was then edited and translated.
  • It was sent to all law societies in late September 2009 and went before the FLSC Council in October 2009 at which time it was approved.

What’s next?

Law Societies are now being asked to consider adopting the Model Code as their own Code of Conduct, keeping it as close to its current content and format as possible, so that the goal of national uniform ethical standards can be realized.

Two pieces of the Model Code remain outstanding at the Federation level, the first being the Model Code conflicts provision, and the second being the “future harm” exception to confidentiality. A national special Advisory Committee on Conflicts was appointed to examine the law on conflicts of interest and consider both the CBA Conflicts of Interest Task Force work as well as the Model Code conflicts provision. The FLSC Executive Committee is considering how finalization of this rule, and the “future harm” exception rule will best be addressed.

In order that the goal of national uniform ethical standards be realized, it is hoped that law societies across Canada will make time to consider adopting the Model Code. It is recognized that some minor changes may be required due to unique provincial practices or procedures. Additionally, some jurisdictions have gone beyond the work of the Model Code and adopted new and innovative provisions. For example, B.C. and Alberta have both adopted a conflicts exception for pro bono work. Such a provision might be added by adopting jurisdictions.

What does it mean to me?

The Code sets out statements of principles which outline important expected standards of ethical conduct for lawyers. The Code also assists in defining ethical practice and in identifying what is questionable ethically.

The entire Model Code should be considered a reliable and instructive guide that establishes only the minimum standard of professional conduct for lawyers.

Consistent conduct rules across the country will demonstrate to the public and to lawyers that there are national ethical standards for the practice of law.

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