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Conduct unbecoming: lawyers and propriety

As lawyers, when we are called to the Bar, we swear that we will support the Rule of Law and abide by the ethical standards and rules governing the practice of law. At the solemn ceremony before the Court, we stand in our heavy robes, buttoned up and formal. We take photos outside the courthouse with our friends and family. We celebrate. Then we go home and slip out of our robes, shedding the layers of anachronistic formality and sliding back into what feels more like ourselves, maybe a pair of jeans and that favourite old, worn t-shirt from a concert we went to a decade ago, or a pair of pressed khakis and a golf shirt, or maybe a dress that is low cut or backless.


When we are busy being ourselves, posting selfies or pictures of our brunch to Instagram or Facebook, or reviewing a restaurant on Yelp, or sending a salacious Snap or message on Tinder, we are generally not thinking about our ethical obligations as lawyers. We’re in our private lives, we think. We are free to have that, surely.



The Code of Conduct and Conduct Unbecoming


We may think that when we step out of robes, shed our suit jackets or our regulation panty hose, that we are now unconstrained, but our obligations under the Code of Professional Conduct [1] (the “Code”) reach into our private lives. The integrity rule in the Code is near aspirational as it is written, its commentary stating


a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.


As if that weren’t a heavy enough mantle, the commentary goes on to say that


dishonourable or questionable conduct on the part of a lawyer…[w]hether within or outside the professional sphere…[if it] is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Society may be justified in taking disciplinary action.


This is tempered by the final paragraph of the commentary, which provides that generally the regulator “will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity.”


There are a number of sanctions/measures that the Society may impose, outside of formal discipline, for a breach of the integrity rule. Generally, however, in order for a complaint to result in formal “discipline” as defined by the Regulations (e.g. a Consent to Reprimand or charges being laid - both of these measures public) the evidence that can reasonably be believed must amount to a finding of professional misconduct, conduct unbecoming or professional incompetence.[2]


When it comes to private conduct, it is “conduct unbecoming” that the Society looks to. “Conduct unbecoming” is conduct that

tends to bring discredit upon the legal profession including one or more of the following

(i) committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or competence as a member of the Society

(ii) taking improper advantage of the youth, inexperience, lack of education, lack of sophistication, or ill health of any person;

(iii) engaging in conduct involving dishonesty;[3]


It is not clear from the wording of the Regulation whether the list is exhaustive or not.


The regulator’s reach


In Lawyers’ Ethics and Professional Regulation[4], the editors note that, at its narrowest, the ability to discipline a lawyer for conduct that occurs outside of their practice “ensures that a technical argument that the misconduct occurred outside of the lawyer’s legal practice is unavailable to lawyers who have behaved unethically”. At its broadest,


the power of the law societies to regulate for extra-professional misconduct extends much further. It allows the law societies to discipline a lawyer for any behaviour which the law society believes constitutes “conduct unbecoming” a member of the law society. Canadian lawyers have been disciplined (albeit in some cases mildly) for “conduct unbecoming” as varied as public nudity, failing to care for animals at the lawyer’s farm and writing a bad cheque to a landlord (p 676).


While the above seems to suggest that law societies are run rampant into lawyers’ personal lives, the case law involving the most severe punishment – disbarment – belies a much higher threshold for when Law Societies will discipline a lawyer for their extra-professional conduct. What the above also fails to note is that each example could be the basis of a criminal charge. It is unsurprising, then, that Law Societies would view a conviction as meeting the nexus between a lawyer’s private conduct and conduct that may tend to bring discredit upon the profession or bring the administration of justice into disrepute. Breaking the law is, arguably, prima facie conduct that tends to bring the administration of justice at least into question, if not into disrepute.


Conclusion


There is little case law to direct us to when a lawyer might be disciplined for their conduct in their private lives. The integrity rule, as written, appears to give the Society a wide berth in terms of the authority to at least look into a lawyer’s private life to determine whether the rule may have been breached. The idea that “a lawyer’s conduct should…inspire the confidence, respect and trust…of the community, and avoid even the appearance of impropriety” should at least give us pause. The discretion to determine the bounds of propriety is perhaps a bridge too far for a regulator’s reach.


End notes

[1] Wording is taken from the Nova Scotia Barristers’ Society Code of Professional Conduct, which is identical to the language set out in the Model Code of Conduct from the Federation of Law Societies.

[2] Regulation 9.4.3. See 1.1.1 (i) and (j) and 9.4.3(e) of the Regulations, [3] Regulation 9.1.3.

[4] 3rd ed. [Toronto, Ontario] : LexisNexis, 2017.

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