The Ethical Lawyer - Latest Comments

Re: The Ethical Lawyer is a New Dad!

Amandacenerizio — Sun, 21 Aug 2011 11:43:06 -0000

Congratulations!

Re: What constitutes legal authority? Some thoughts on foreign sources of law

Bill Freivogel — Tue, 19 Apr 2011 11:52:38 -0000

I agree.

Bill Freivogel
www.freivogel.com

Re: Pot Bust Goes Awry – Law Prof Threatens to Sue

Franco P. Tarulli — Wed, 23 Feb 2011 06:38:24 -0000

Thanks, Jack.

I found the comment to be stunning.

It might be a quaint notion that I have of the legal profession, but I refuse to let go of the idea that when you take on a position that is quasi-public, and integrally linked with the way we regulate ourselves a society, something more is expected.

At the very least, we should expect something more.

Re: Pot Bust Goes Awry – Law Prof Threatens to Sue

Jack Marshall — Tue, 22 Feb 2011 23:26:14 -0000

Excellent post, Franco---and disturbing words from a law prof. "Pigs'?? Takes me back to places I would rather not go.

Re: Is sex with a client’s wife unethical?

Franco P. Tarulli — Thu, 17 Feb 2011 21:51:18 -0000

That might be, but the right thing to do is send the client out of the office.

Re: Is sex with a client’s wife unethical?

Patmatin59 — Thu, 17 Feb 2011 10:58:48 -0000

well no i don't think that it is right but you never know where you're gonna find love.

Re: Run for the Border: Practicing Across Jurisdictions

Franco Tarulli — Tue, 15 Feb 2011 22:39:56 -0000

Thanks, Erin. Just some thoughts I've had after a few years making regular appearances in neighboring provinces.

Re: Run for the Border: Practicing Across Jurisdictions

Erin Russell — Tue, 15 Feb 2011 14:04:22 -0000

These are all important issues to keep in mind for practice in multiple jurisdictions. Very thoughtful, Franco.

Re: Ethical or Unethical: An angry letter to the Judge

Erin Russell — Mon, 24 Jan 2011 10:06:07 -0000

Franco,

This is very interesting! I will admit that when I started reading this post I thought I was going to be disagreeing with you. I could not think of a defensible reason for an attorney to write such a letter. However, the question of whether doing so is wise is much different from whether it is sanctionable conduct. You convinced me that in this case, it seems sanctions would be unjust.

Nicely done.

Erin

Re: Ethics without empathy

Edwin Rutsch — Wed, 19 Jan 2011 11:43:22 -0000

we are working on it Franco. We started a cause for that purpose.. hope you will join as well.
Let's Find 1 Million People Who Want to Build a Culture of Empathy and Compassion
http://Causes.com/Empathy

Re: Ethics without empathy

Franco Tarulli — Mon, 17 Jan 2011 22:16:01 -0000

Thanks for that, Edwin!

Hopefully the trend suggested by the study can be reversed.

Re: Ethics without empathy

Franco Tarulli — Mon, 17 Jan 2011 22:11:44 -0000

I would love to read the article. It seems to point to a need for a high level of emotional intelligence in making a good CA. I suspect the same is true for any professional, and particularly for lawyers.

Again, and while I don't profess to know much about emotional intelligence, it seems to me that less empathy suggests lower emotional intelligence. That can only lead to less competent lawyers who are more apt to succumb to the temptation to engage in conduct that is not ethical.

It's a serious problem that all of the professions are going to have to address, and soon.

Thanks for the comment, Art!

Re: Ethics without empathy

Arthur Kingston — Mon, 17 Jan 2011 11:20:36 -0000

Interesting. In a similar vein, it is worth noting in the most recent issue of CA Magazine (Jan/Feb 2011) has an interesting article on what personality traits are found in "Super CA's". One key trait is having a strong ethical compass, "An internal, intuitive sense of doing the right thing for the right reason. A solution that's easiest to implement and communicate may not always be the best one in the long run." (Note: I am not a CA, I am only married to one).

Re: Legal Ethics Hero: Greg Adler

Jack Marshall — Sun, 16 Jan 2011 15:09:50 -0000

Heavens! No apology necessary, Franco. A hero's a hero, and Greg Adler deserves be called one as many places as possible. Thanks, though!

Re: Ethics without empathy

Edwin Rutsch — Sun, 16 Jan 2011 13:01:28 -0000

May I suggest some further resources to learn more about empathy and compassion.

The Center for Building a Culture of Empathy
The Culture of Empathy website is the largest internet portal for resources and information about the values of empathy and compassion. It contains articles, conferences, definitions, experts, history, interviews, videos, science and much more about empathy and compassion.
http://CultureOfEmpathy.com

and more about this study
http://cultureofempathy.com/Re...

Re: Ethics without empathy

Franco Tarulli — Sat, 15 Jan 2011 15:45:46 -0000

Thanks, Erin!

Re: Ethics without empathy

Erin Russell — Sat, 15 Jan 2011 15:39:02 -0000

"If a professional can’t understand the ways in which others might consider his behavior less than trustworthy, the professional is more likely to succumb to unethical behavior."

I could not agree more. Very well written, Franco.

Re: Lawyers, Legislators, and Loopholes

Franco Tarulli — Fri, 31 Dec 2010 21:46:00 -0000

I will, once, and <it>only</it> once, overlook your <it>ad hominem</it> attack for the purpose of responding to your comment.

Firstly, I want to thank you for pointing out the editing error at the end of my post. That has now been corrected.

Secondly, nowhere in my post do I suggest that anyone should be "apart from the law". What I said is that a moral duty is not the equivalent of a legal duty, and shouldn't be made so.

The party bus operators never served Brett Studebaker the alcohol he consumed; he brought it on board himself. If the bus operators weren't going to serve him, they should not be saddled with the legal duty of ensuring that he was old enough to be served alcohol, or with the legal duty to ensure he had a ride home.

In my opinion, a private business in the position of the party bus operators should be entitled to assume that if someone aboard their bus decides to bring alcohol aboard and consume it, that person is of age, and has a ride home. Imposing those duties on a private business imposes the same duties on them as the police have for monitoring the public's compliance with the law. I don't believe that is a direction we should be moving in a free society.

Thirdly, I agree that Brett Studebaker's death was a tragedy. But the tragedy of his death does not make it any less his fault. Nor does it imbue the law with abilities that it does not have.

Remember: Brett Studebaker did not die because he was on a party bus. And he didn't die because he drank underage. He died because he decided to drive while seriously impaired. Nothing about the Brett Studebaker Law will prevent anyone from making the same poor choice.

At 19, Brett Studebaker was entitled to hold a driver's license, and to drive a car. He was entitled marry. He was entitled to vote. He was entitled to join the military, carry a gun and die in the defense of his country.

It makes no sense to shift the responsibility for his actions away from where it rightly belongs.

Re: Lawyers, Legislators, and Loopholes

Samuel Wellford — Fri, 31 Dec 2010 16:28:28 -0000

Franco Tarulli is not a very intelligent man and has not done sufficient research to support his claims in this article. Regardless of whether or not there are "loopholes", this was a very tragic incident. It is ignorant and insulting to say that nothing could be done to prevent something like this from happening again. In the last sentence of his article, Franco mentions that Brett should not be allowed to portray himself as a victim. Brett is not able to portray himself because he is not with us anymore. His family is not portraying him as a victim but as a statistic that could have been prevented.
Holding the party bus organizers responsible for allowing minors on the bus with alcohol should not be apart from the law. Furthermore officers of the law and members of the "justice" system should not be apart from the law.
I was born and raised in the same society as Brett was. Several times I had been pulled over impaired, given my keys and license back, and told to drive home. Someone I once knew was arrested for driving drunk and high on meth and morphine, her car was never taken and her license was never suspended. One week before that I was pulled over for rolling a stop sign with no insurance, my car was impounded for 30 days and my license suspended for 6 months plus $3000 in fines. This sends a message to the public that driving while intoxicated is a lesser offense than rolling a stop sign with no insurance.
The law system must be reprioritized and many officers of the law should be fired for corrupt conduct. If we do not reconsider the law system, tragic incidents like this will continue to occur, endangering the safety of every person on the road.

Re: Legal offshore outsourcing: An ethical pandora’s box?

Franco Tarulli — Thu, 11 Nov 2010 14:06:42 -0000

In the years since this post was published, it is true that there have been a number of jurisdictions that have approved legal outsourcing. They have done so, however, on the assumption that there is adequate oversight by the lawyer in the home jurisdiction.

That is where I have difficulty.

In my view, clients are entitled to advice and representation based upon an independent exercise of their lawyer's judgment.

I have no difficulty with outsourcing if there could be some assurance that home counsel has exercised sufficient oversight and judgment. I still maintain that this is difficult in many of the situations that are posited as outsourcing possibilities.

My advice remains that lawyers using legal outsourcing should proceed with caution.

Re: Legal offshore outsourcing: An ethical pandora’s box?

Ashish Kumar — Tue, 09 Nov 2010 06:23:24 -0000

At least six ethics panels in various cities and states in the U.S. already have addressed the issue of ethics in relation to off-shore legal outsourcing, or legal process outsourcing (LPO / legal KPO), and they all have ruled in favor of it. These include the American Bar Association Standing Committee on Ethics and Professional Responsibility, which issued Ethics Opinion 08-451, which states that (a) "U.S. lawyers are free to outsource legal work, including to lawyers or non-lawyers outside the country, if they adhere to [various] ethics rules," and (b) legal outsourcing is "a salutary trend in a global economy." As The New York Times also reported: “ ‘there is no problem with off-shoring,’ said Stephen Gillers, a professor at NYU School of Law and a legal ethics expert, ‘because even though the lawyer in India is not authorized by an American state to practice law, the review by American lawyers sanitizes the process.’ ” (“Corporate America Sending More Legal Work to Bombay,” March 14, 2004.)

Ashish Kumar
http://www.sddglobal.com/
high-end legal outsourcing

Re: Why did Keen have to be fired?

Franco Tarulli — Mon, 21 Jan 2008 20:05:40 -0000

It's entirely possible that Ms. Keen was advised not to appear at the hearings of the parliamentary committee unless summoned.

If there is a lawsuit brewing, it could take years to come to trial. The problem is that Ms. Keen's testimony before the parliamentary committee would be recorded and transcribed. Transcripts like can be used as fodder for cross examination at any subsequent trial, which can sometimes present difficulty.

I continue to maintain that all members of the CNSC, as adjudicators sitting on an administrative tribunal entitled to a significant degree of institutional independence, have a duty to safeguard and defend that independence against political interference in specific cases before it.

The interesting ethical question is how far that duty goes, and the manner in which it must be reconciled against the members' right to procedural fairness in any litigation that arises involving the government.

Basically, Ms. Keen's interest in avoiding testimony before the parliamentary committee conflicts with her duty to protect the independence of the CNSC. How is that conflict to be reconciled?

I don't have an answer, but it will definitely make for some interesting blog material once I've had a chance to do some research and reflect on the question.

Thanks for posting!

Re: Why did Keen have to be fired?

andrew — Mon, 21 Jan 2008 14:47:28 -0000

Is it possible that she was given legal advice not to testify as it could be prejudicial to an upcoming lawsuit? The lawsuit will certainly be a high-profile affair. However, how long could it take to come to trial, and could a settlement require silence? Given the above, an unfortunate decision indeed.

Re: Step away from that Nuclear Safety Commission

Ron Battiston — Sat, 19 Jan 2008 21:34:01 -0000

You have raised several excellent points.
In regards the "rule of law" one reality in that area is that in Canada we enjoy three levels of government;Federal, Provincial and Municipal. If one was to take all the statutes and by-laws and regulations and interpretations that we each must live under to remain within the law it would represent a pile of at least twenty feet or more tall.
When acting on behalf of the Public we often revert to a branch of philosophy -Etics to help us choose the best behavior. Specifically the phrase "Summum Bonum" -the greatest good comes to mind.

In this case I appreciate the Rule of Law and I also look at the emergency situation our cancer patients were placed in by the NRU shutdown. It would seem immoral to me to impede the flow of canadian isotopes to the medical community and very ill patients. The Government action supported by Parliament restarted the flow of isotopes.

As to assigning blame clearly there are issues at the AECL as they were responsible for managing the NRU. I suspect it was a money issue that prevented the replacement of the NRU at the 2005 end of planned life date. So the Government of that day shares some responsibility. No doubt the Minister who is ulitimately responsible for his department shares some blame too as does his several previous Ministers.

The issue of the terms of the liscence may be considered by some to be a bit of a red herring. That is if the license was changed slightly it would not have been an issue. In fact the reactor had a main cooling pump and one back up pump. Had a siesmic event occured one might argue it could have taken out both back ups.

The arguments could go on for many pages but the bottom line still remains one of leadership. A leader must pick the best course for the conditions and Miss Keen choose a course that resulted in a medical emergency. Although well qualified Miss Keen is not an expert in nuclear technology. She has a Bsc in Chemistry and I believe a Masters in Food Science and had completed some work on a Phd in Strateigic Management. She spent several years in government where the main rule is CYA. I suggest that this is what she did here. To me the most unfortunate thing is that we have two main players Miss Keen and Mr. Lunn who are both talented, well educated, hard working and successful people and as Hamlet said "Oh that it has come to this"

The Law is a cornerstone of our society but as we often find other factors come to play to help us in life. Is it ethical behaviour to allow tens of thousands of very ill patients suffer and possibly die so that the terms of a license are upheld and the independence of a quasi judicial board is protected? I would like to see Miss Keen and Mr. Lunn shake hands and apologize to each other and the patients who were held hostage by this event. Instead this will likely drag through the courts for years. Sad really!

Re: Step away from that Nuclear Safety Commission

Franco Tarulli — Wed, 16 Jan 2008 21:48:04 -0000

The problem with this argument is that it ignores the fact that neither Ms. Keen nor the CNSC have any legal authority to permit AECL to operate the Chalk River reactor other than in accordance with the terms of its license. The terms of its license required AECL to operate the reactor with both emergency coolant pumps functional.

AECL voluntarily shut down its own reactor – without being ordered by anyone to do so - for that very reason.

For AECL legally to restart its reactor without both emergency coolant pumps in operation would have required it to apply for a variation of the terms of its license. One reason for the delay in restarting was that AECL was trying to formulate a plan to operate safely either without the safety pumps, or with only one pump functional.

Ultimately, AECL never did make application to vary the terms of its license.

For Ms. Keen and the CNSC to simply ignore the fact that the pumps were not functional would be to abandon its mandate as the nuclear energy regulator in Canada.

This is what it means when we refer to “the rule of law”. That Linda Keen, or Gary Lunn, or Stephen Harper would have liked the reactor to begin producing isotopes again is not the issue. The issue is how to do it in accordance with the law – because the law is designed to prevent a nuclear disaster.

The law required (a) CNSC to ensure that AECL did not operate its reactor other than in accordance with the terms of its license; and (b) AECL to shut down its reactor when it could not comply with the terms of its license.

Nor is it sufficient to say that the law didn’t contemplate a situation where isotopes would become scarce. That is precisely why this 50 year old reactor was permitted to operate at all. The conditions were that it had to have certain safety precautions in place, including the 2 emergency coolant pumps.

Remember that this reactor actually shut itself down (“reactor ‘trip’”) twice before it was legislated back into operation, and there had been 2 minor seismic events in the nearby area.

I suspect that the same people who today feel that Ms. Keen made an “error of judgment” would have a very different view had there been a seismic event significant enough to cause a meltdown that could not be brought under control because the emergency pumps were not in operation.

As for the political motivations, the facts are equally consistent with this government’s desperately wanting to avoid having its popularity eroded because of an isotope shortage, since a decline in popularity might inspire the opposition to trigger an election. Scapegoating Ms. Keen makes it at least look like they are doing something, which is convenient since the public generally doesn’t understand that it isn’t as simple as getting the CNSC president to make the correct stroke of her pen.

Nevertheless, I am more interested in exploring the ethical issues, and the issues related to the administration of justice. On that front, Mr. Lunn’s actions are, at best, legally questionable, and at worst, highly corrosive of public confidence in administrative tribunals.