Obiter Dicta Issue 1 - August 31, 2015 | Page 2

EDITORIAL 2  Obiter Dicta Life is short. Have an affair, compromise your privacy, and face misconduct charges. T o t h e i nc om i ng class of 2018, let the Obiter Dicta be one of many to welcome you to Osgoode! Today you take the first step on a journey of a thousand miles. Your introduction to the practice of law begins with what is referred to simultaneously as the most and least relevant class of the JD program: Ethical Lawyering in the Global Community. Before reveling in the wit of Lord Denning, you must first become acquainted with all seven chapters of the LSUC’s Rules of Professional Conduct. In addition, your conceptions of morality and ethics will be challenged through episodes of The Practice and lively mock trials. You may be confronted with dilemmas that involve sweatshops in Indonesia, disposing of key evidence, and looming brain aneurisms. To help prepare you for what awaits, I ask the following question: To what extent should a lawyer’s private morals inform their professional ethics? This question has become especially relevant in the legal community with the recent Ashley Madison data leaks. For those unaware, Ashley Madison is an online dating service for married individuals looking to have an affair. The hacker group Impact Team released over 9.7 gigabytes of account details for nearly 32 million users of the site on August 18. Several of these user profiles have been linked to Bay Street firms, sparking debate over whether adultery should be subject to discipline under the LSUC’s Rules on professional integrity. The supporting argument is premised on the idea that these acts negatively impact the lawyer’s credibility. It is suggested that a lawyer who actively pursues an opportunity to break their wedding vows can be equated to someone without fidelity to their word, and therefore untrustworthy as both a spouse and a lawyer. The issue forces an examination of the nexus between a lawyer’s private life and its impact on their professional obligations. Author Daniel R. Coquillette writes that the law is “not merely a trade but rather a profession, which entails a higher calling in pursuit of the public interest.” He suggests that it is a delusion of young, inexperienced lawyers to think they can separate their personal lives from their professional ones, or that they can separate their personal and professional ethics. The philosophical underpinnings of this line can be found in Plato’s Republic, where it is argued that a. Osgoode Hall Law School, 0014g York University 4700 Keele Street Toronto, on  m3j 1p3 e. [email protected] w. obiter-dicta.ca t. @obiterdictaoz “You cannot live without the lawyers, and certainly you cannot die without them.” joseph h. choate ê Our society is coming to terms with the fact that people’s personal lifestyle choices should not impact their professional lives. Millions of people have affairs —politicians and lawyers are no exception. Photo credit: Thewire.com the members of the guardian class have no private life apart from their political duties. It could be said that by virtue of taking on the responsibility of certain occupations such as a politician and lawyer, the private individual makes himself publicly available. This may be seen as implicit consent to be publicly scrutinized for both public and private action. Many hold the belief th at lawyers should be held to a higher standard in order to justify their privileged position in society. The Federation of Law Societies of Canada has addressed the question of whether lawyers are bound by their code of professional conduct in all respects and at all times. It was the Federation’s position that lawyers are bound at all times by their code of professional conduct when their conduct relates to the protection of the public, respect for the rule of law, or the administration of justice. The Federation also confirmed that a special ethical and social responsibility comes with membership in the legal profession, and the unique and privileged position that a lawyer holds in society requires the lawyer to refrain from acts that are derogatory to the dignity of the profession. The commentary for the LSUC’s Rules on integrity speaks to how a lawyer’s dishonourable or editorial board editor-in-chief | Sam Michaels managing editor | Erin Garbett creative director | Heather Pringle editorial staff business managers | Alvin Qian, Vincent Neil Ho communications manager | Carla Marti news editor | Simmy Sahdra opinion editor | Nadia Aboufariss arts & culture editor | Kathleen Killin sports editor | Kenneth Lam website editor | Asad Akhtar questionable conduct in either their private life or professional practice can reflect adversely on the integrity of the profession and the administration of justice. However, it also notes that the Law Society will not concern itself with the purely private or extra-professional activities of a lawyer that do not bring the lawyer’s professional integrity into. This does little to clarify whether adultery can be viewed as a purely private activity that does not bring professional integrity into question. For additional guidance, the CBA Code of Professional Conduct provides illustrations of conduct that may be viewed as dishonourable or questionable. The most relevant example cited is committing any personally disgraceful or morally reprehensible offence that reflects upon the lawyer’s integrity (of which a conviction by a competent court would be prima facie evidence). This language seems to suggest that the offensive behaviour ought to be illegal to attract the attention of the Law Society. Though distasteful and grounds for divorce, adultery is not necessarily a criminal offence. staff writers Evan Ivkovic, Shannon Corregan, Anthony Choi, Michael Motala l ayout staff Rachel McPherson, Karen Wang contributors Jermain Virgo, Kareem Webster Submissions for the September 14 issue are due at 5pm on September 5, and should be submitted to: [email protected] » see editorial, page 14 The Obiter Dicta is published biweekly during the school year, and is printed by Weller Publishing Co. Ltd. Obiter Dicta is the official student newspaper of Osgoode Hall Law School. The opinions expressed in the articles contained herein are not necessarily those of the Obiter staff. The Obiter reserves the right to refuse any submission that is judged to be libelous or defamatory, contains personal attacks, or is discriminatory on the basis of sex, race, religion, or sexual orientation. Submissions may be edited for length and/or content.