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The Advisory: Volume 9, Issue 3, December 2011


Click here to view the PDF version of The Advisory

Ethically Speaking

Alberta’s New Code of Conduct - Public Statements

By Ross McLeod, QC, Practice Advisor, Law Society of Alberta

Eddie Greenspan publicly responded(1) recently to criticism from his client, Conrad Black. Mr. Black’s recently published book(2),  about his US fraud trial in 2007, questioned the effectiveness of Mr. Greenspan’s legal representation. Mr. Greenspan’s choice of American co-counsel, judgment and even his health are targeted by the apparently dissatisfied client. It makes interesting and, perhaps for lawyers, entertaining reading. And, although it has provoked a fair measure of twittering, it helps to illustrate some changes to the new Alberta Code of Conduct.

The lawyer self-defense or self-interest exception to confidentiality in the former Code of Professional Conduct, Chapter 7 Rule 8 (f), provided that “a lawyer may disclose confidential information when reasonably necessary to properly prosecute an action or defend a claim or allegation in a dispute with the client”. The new Rule 2.03 (4-5) respecting confidentiality exceptions expands and clarifies the concept. Given that lawyer-client privilege is characterized as a fundamental legal right, the self-defense exception invites some criticism for permitting disclosure of confidential information to promote a lawyer’s own self-interest. Justification is usually found in an implied waiver of privilege when the client makes the first move to sue or to challenge the quality of legal representation.

But what sort of justification exists in the Code for Mr. Greenspan’s public response, when it is not made with the consent of the client or in order to advance the client’s cause? The former Code dealt with the making of public statements by a lawyer as a part of the advertising rules. The issue was shameless selfpromotion or personal profit from the client’s legal affairs. Even soliciting a client’s consent to this kind of publicity was regarded as offending the rule.

This new Code of Conduct is organized around the basic professional relationships of lawyers. Formerly, the structure was governed by the roles lawyers play and the situations they found themselves in, like advisor, advocate, and business owner. Rule 6.05 still comments upon lawyer self-interest. However, the real thrust of the Rule is the risk that public statements will undermine public trust in the individual lawyer and in the profession as well.

6.05 (1) Provided that there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.

The Commentary to the Rule includes:

A lawyer’s duty to the client demands that, before making a public statement concerning the client’s affairs, the lawyer must first be satisfied that any communication is in the best interests of the client and authorized within the scope of the retainer.

Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that a lawyer’s real purpose is self-promotion or self-aggrandizement.

Spontaneous public statements diminish the benefits and protections provided to the client by competent legal representation and may expose the lawyer to liability for damages. Who would want a lawyer that reveals client secrets in the media, when those revelations are not intended to help the client? A general rule against profiting from a client’s case is probably founded on the broader duty of loyalty, of which keeping confidences is only a part. In her new text, Understanding Lawyers’ Ethics in Canada(3), Calgary professor Alice Woolley says (at p.94):

A lawyer’s comments must respect his client’s confidentiality and must also fall within the scope of the retainer. Prejudicial statements about the client which violate the terms of the retainer may be the basis for litigation against the lawyer.

And with respect to the self-interest exception generally, where no implied waiver is clearly demonstrated, she says (at p. 156) “it makes no sense to allow that right to bend uniquely to lawyer’s own convenience”.

Although a lawyer may be spluttering with outrage at the client’s public attack, the broader public interest in maintaining the fundamental protection of lawyer-client privilege, and the interest of justice itself, are generally served by keeping confidences confidential.

So, what about Mr. Greenspan and Mr. Black? Mr. Greenspan has been down this road before and has to know the risks(4). And, after all, he’s Eddie Greenspan and the rest of us are not.

View the new Alberta Code of Conduct on the Law Society of Alberta website and consider learning more by checking out the Legal Education Society of Alberta educational modules on the LESA website.

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(1) Globe and Mail, Saturday October 1, 2011
(2) A Matter of Principle, McClelland & Stewart, Aug. 31, 2011
(3) LexisNexis Canada Inc., 2011
(4) Stewart v. CBC, (1997) 150 D.L.R. (4th) 24

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