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CBA updates professional conduct code

|Written By Kirsten McMahon

ST. JOHN''S - With an eye to protecting clients'' interests, the Canadian Bar Association unveiled its updated Code of Professional Conduct covering the tricky issues of discriminatory behaviour, conflicts of interest, confidentiality, and civility.

The updated code was announced at the CBA

"The confidence and respect of the public are cornerstones of the legal profession," said past CBA president Brian Tabor of Halifax. "This can only be achieved if lawyers maintain a reputation for both integrity and high standards of legal skill and care. The code sets that high ethical standard."

New provisions in the code, which were announced earlier this month at the CBA's annual legal conference in St. John's, deal specifically with:

•    Confidentiality: The code makes it clear that a lawyer should not knowingly assist or encourage any dishonesty, fraud, crime, or illegal conduct, but it does not follow that the lawyer should disclose to the authorities a client's proposed misconduct.

Also, lawyers must disclose confidential information when they reasonably believe there is an imminent risk to a person or group, and the disclosure is necessary to prevent death or serious bodily harm.

•    Discrimination: Sexual harassment and any other harassment by a lawyer are more clearly defined in the updated chapter on discrimination, which includes, but isn't limited to, a person's colour, perceived race, nationality, language, age, sexual orientation, political belief, or physical or mental disability.

•    Conflicts: New provisions make it clear that lawyers may not represent clients who are on opposite sides of a dispute unless the clients receive full disclosure about the conflict and agree to have the lawyer continue to represent them both.

•    Civility: The new code introduces principles of civility for advocates, which advises that that a consistent pattern of rude, provocative, or disruptive conduct by the lawyer may merit disciplinary action.

"Lawyers can disagree, even vigorously, without being disagreeable," says Tabor. "Civility is the hallmark of the best lawyers."

The issue of civility in - and even out of - the courtroom, has been around for ages, but seems to be on the increase as litigation becomes more complex, expensive, competitive, and cutthroat.

In the intro to the Advocates' Society Principles of Civility, Ontario Chief Justice Roy McMurtry notes, "For decades, a significant segment of the public has viewed lawyers as difficult, contentious individuals," and he points out that the paths of judges and lawyers cross frequently, and all involved have extremely long memories about each other's conduct.

At a recent Ontario Bar Association conference on litigation, Ontario Superior Court Justice Ruth Mesbur said there is less civility now than in the past, and incivility has expanded to take new forms like obnoxious cell phone and Blackberry use, e-mail and voicemail abuse.

"I see examples of incivility in my courtroom all the time," she said, "whether it's lawyers interrupting each other, arguing directly with each other, or engaging in heavy sighs or eye-rolling during the other lawyer's submissions."

She said sometimes the squabbling gets so bad she actually hears herself saying, "Counsel, don't make me use my mommy voice with you."

Although the CBA does not regulate the practice of law and the provisions are not mandatory, the CBA has the experience and expertise to provide the guidelines and direction, says Tabor.

Since first published as The Canons of Legal Ethics in 1920, the CBA model code has earned a reputation as the "gold standard" within the legal profession.

"We hope law societies will study the code and adopt the changes," says Alan Stern of Halifax, chairman of the CBA's standing committee on ethics.

"In this era of globalized law practice and increased mobility across Canada, it is more important to have common conduct rules for all Canadian lawyers," he says.

The code is available online at: www.cba.org/CBA/activities/code

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