Guiding principles

  • Subtitle: Legal Ethics
Written by  Posted Date: August 1, 2016
Illustration: Dushan Milic
Illustration: Dushan Milic
Almost all Canadian law students intend to practise law when they get out of law school. It’s different in some other jurisdictions. In Europe, for example, a law degree often leads to government service, or a business career, or a job in journalism. Europeans think the study of the law develops analytical skills that can be put to general use. But in Canada a law faculty is considered a trade school and its denizens single-mindedly look forward to setting up legal shop as soon as possible. They are anxious to graduate with everything they need to begin practising. One of the things they require but may not have is a moral lodestar. If you are entering the practice of law you should believe — you need to believe — in some guiding principles. Without them you’re more likely to mess up your life and career.

Pursue justice, not riches. Practising law is about the pursuit of justice. Don’t think of the law as a route to riches. If you do pursue money, you’ll likely fail in the pursuit, so you might as well be high-minded, if only by default. It’s less and less true that a law degree leads to a lucrative career, although the myth persists. A story in The New York Times this past June noted, “While demand for other white-collar jobs has grown substantially since the start of the recession, law firms and corporations are finding they can make do with far fewer in-house lawyers than before, squeezing those just starting their careers.” The article described “the atavistic rage among those who went to law school seeking the upper-middle-class status and security often enjoyed by earlier generations. . . .” And if you are one of the few who succeeds in getting on the wealth track, you will be subject to the billable hour and many other horrible tyrannies.
Is it worth it? What will it profit you if you gain the whole world, or at least a BMW 7 Series sedan, and forfeit your soul?

Don’t work too hard. Eighteen-hundred billable hours a year. That’s the famous benchmark for legal practice, and many lawyers claim to exceed this number, sometimes (they allege) by hundreds of hours. To bill 1,800 hours a year, you have to work 50 or more hours a week (not every hour is billable — when do you go to the bathroom?). Those who claim to work this hard are either being dishonest or are leading a truly miserable life. Save in occasional, exceptional circumstances, no one should work more than 40 hours a week. When are you going to work on your model railroad or make pancakes for the kids?

A New York lawyer once told me about something called the “Wall Street Boomerang,” a term used to describe working all night, taking a cab home at 6 a.m., keeping the cab waiting while you had a shower and put on some fresh clothes, and then taking the cab back to the office. He was proud of doing this several times a month. For him, the Boomerang exemplified big-time law practice. No surprise that he was a boring and obnoxious person.

Be your own person. Canadians are deferential — very deferential — to authority. Civilization and peace depend on appropriate deference to properly constituted authority, but don’t take it too far. Don’t join the old boys club. Don’t unthinkingly accept the voice of experience. Be skeptical of the law society; bar associations are often not forces for good. Be critical of those who present themselves as your elders and betters and expect you to do what they say and think what they think. Senior partners and pillars of the bar, impressed by their own history and gravitas, may try to bully you; don’t let them. Your new ideas may be better than their old ideas. Your fresh point of view may be better than their stale view of the world.

Follow the rules. OK, don’t join the club, but do obey the rules. Ten years ago, I wrote a book about the ironic inclination of some lawyers to break the law. Why did they do that? I suggested various explanations. Misconduct may be a distraction from the grinding boredom that characterizes much of legal practice. It may be a reaction to depression, or a result of overwhelming pessimism. Or perhaps mastery of the rules of law, and the ability to manipulate them, encourages disdain for those rules (“the rules are for others, not for me”). The practice of law can be psychologically perilous. Its practitioners are sometimes surprisingly fragile. Be on your guard. The price of misbehaviour may be great.

Read widely. Law touches on the whole sweep of human experience. The best lawyers have some understanding of some of that experience. No one person can directly experience much. You enlarge what you know and understand by reading — history, biography, philosophy. Sometimes, fiction is the best thing to read, because fiction unlocks the human heart unlike anything else. And, sometimes, fiction directly illuminates problems that bear heavily on the law. For example, how can we know the truth?
Rules of evidence and procedure are supposed to help us do that in the courtroom. If you truly want to understand how difficult it is to establish the truth in a courtroom, read Arthur & George, a novel by Julian Barnes about the conviction and imprisonment of someone for a crime he did not commit. It will tell you important things that you won’t find in a textbook on evidence.

So, to sum it up, be independent, fight for justice, don’t expect to get rich, lead a balanced and big life. Am I being a bit pious and preachy? Perhaps. If you don’t like my suggestions for guiding principles, formulate some of your own. As your boat leaves the shore, and the wind fills its sails, you’ll need something to navigate by, that’s for sure.

Philip Slayton is immediate president of PEN Canada, an organization that promotes and protects freedom of expression.

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0 # PartnerAndré Roothman 2016-08-04 13:56
Spot on Slayton. I would like to add that it is not only in Canada that law schools are trade schools, but that is inherent to all Common Law jurisdictions, for historical reasons. Law in the Common Law world was never taught at universities until the 1800's, with the exception of Oxford and Cambridge where Civil Law has been taught for many centuries. The Common Law training has traditionally been the handled by the profession, in the form of articles of clerkship/pupillage by the solicitors and barristers, in other words in house training as "apprentices". So the Common Law jurisdictions train legal mechanics and not jurists.
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0 # lawyerDavid Colford 2016-08-01 17:56
Terrific article. The same is true even for someone who has been practicing 35 years and still wants to keep going. Scott Turow is my favourite fiction writer on legal matters and he is still practicing at Dentons. The nautical expression which you borrowed is "every wise sailor knows he has no control over the winds, but he can always do something about his sails."
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Philip Slayton

Philip Slayton is president of PEN Canada, an organization of writers that protects and promotes freedom of expression. Follow him on Twitter @philipslayton.

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