Breathing in the Vital Air: Advocating An Ethics-based Approach to Attorney Fees in the Class Action Context
| Author | Gérald Tremblay, Q.C., Shaun Finn, and Phelps Turner |
| Pages | 98-120 |
98
BREATHING IN THE VITAL AIR:
ADVOCATING AN ETHICS-BASED
APPROACH TO ATTORNEY FEES IN
TH E CLASS A CT ION CO NT EXT
Gérald Tremblay, Q.C.,* Shaun Finn,**
and Phelps Turner***
In civilized life, law floats in a sea of ethics. Each is indispensable to civiliza-
tion. Without law, we should be at the mercy of the least scrupulous; without
ethics, law could not exist.
– Chief Justice Earl Warren1
One often says to oneself when some proposition is put forward: “That just
can’t be right” and then one looks to see why it cannot be right. Sometimes it
offends against common sense, sometime’s against one’s sense of justice, but
more often it just will not stand with legal principles, though it may seem to
be supported by some judicial observations read apart from their context.
– Lord Reid2
A. INTRODUCTION
Access to justice, judicial economy, and behaviour modification: these
three objectives are the pillars of the Canadian class action. This tripartite
justification for class proceedings, formulated by Ontario’s Law Reform
Commission and famously adopted by the Supreme Court of Canada in
* C.M., O.Q., Q.C., Vice-President of the Quebec Bar for 2007–2008, partner,
McCarthy Tétrault LLP.
** Associate, McCarthy Tétrault LLP, member of the firm’s National Class
Action Group. Special thanks to M. Donald Bisson, partner, chair of the firm’s
National Class Action Group. An earlier version of this paper was submitted in
the context of the Judicial Institute Class Actions Seminar for Judges 2008 and
the 8th Annual Forum on Class Action Litigation.
*** Articling student, McCarthy Tétrault LLP.
1 Quoted in “Warren Favors Ethics Advisers” The New York Times (12 November
1962).
2 Lord Reid, “The Judge as Lawmaker” 12 J.S.P.T.L. 22 [Lord Reid].
VOL UME 5, No 1, december 2008 99
Western Canadian Shopping Centres v. Dutton,3 has become the conceptual
lens through which we analyze, discuss, and imagine group litigation.
Despite its uniqueness, however, the modern class action is not an island
unto itself. On the contrary, it is a procedure that is firmly anchored
in the legal regimes of the jurisdictions that have decided to enact it.
Nowhere has it been said that class actions transcend the ethical rules
that govern the relationships between lawyers and clients and nowhere
has it been said that, in the class action setting, lawyers should be parti-
cipants in the litigation, instead of advocates and dispassionate counsel-
lors. Today, however, class action litigation is often described as though it
was a commercial endeavour—a joint venture between petitioners, class
counsel, and perhaps even third-party investors.4 This not only marks
a troubling departure from the principles and obligations of the legal
profession, but obscures what it means to be an attorney. Although times
change, the law evolves, societies become more complex, and litigation
becomes more wide-ranging and sophisticated, attorneys must remain
what they have always been: defenders of their clients; officers of the
court; servants of the law.
But just what does it mean to be an attorney? The question may
seem archaic, perhaps even unnecessary given that the profession has
existed, in one form or another, since the first, uncertain dawn of orga-
nized society. From the time of the Twelve Tables, to the ancient writs,
to the statutes and codes and charters of today, there have always been
laws and individuals called to invoke those laws on behalf of others. Yet
the last half-century has seen unparalleled developments. The prolifera-
tion of litigation, the introduction of novel billing techniques and the
enactment of class action legislation, among others, have dramatically
affected the practice of law. Increasingly, the ethos and language of the
marketplace have come to characterize the legal setting. Today, being a
lawyer often means being a businessperson; an entrepreneur who has a
stake in increasing revenues, maximizing opportunities, and minimizing
risks. Although understandable and even inevitable in certain respects,
this modern approach to lawyering is in danger of diluting the lifeblood
of traditional advocacy. Long before it was ever considered an honest
business, the practice of law was a profession—a vocation for those dedi-
4 See Margaret McCaffery “Litigation as an asset class” National Post (26 March
2008) FP8.
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