The ethics of advocacy

• Author: Gavin MacKenzie
• Pages: 285-290

285

g September 2008

e ehics  acacy

GAVIN MacKENZIE

I

don’t spend a lot of time wringing my hands about the ethical stan-

dards of the lawyers of Ontario, which are very high. I have been prac-

tising for 30 years, and I can think of few cases in which my clients or

I have been exposed to unethical conduct by lawyers on the other side of

a case. Despite the egregious exceptions that we see occasionally at the

Law Society, I do think there is a civility at the bar of Ontario in which we

can take great pride. Those of us who practise as advocates confront eth-

ical choices continually, however, at every phase of the litigation process:

in deciding what clients to act for, and what cases to act on; in advising

clients about whether matters are actionable; in deciding how to plead

a claim or defence; in compiling documents for production and draft-

ing adavits of documents; in conducting examinations for discovery;

in interviewing witnesses; in preparing motion materials and arguing

motions; in leading evidence at trial; in cross-examining witnesses; and

in arguing on our clients’ behalf at trial and on appeal.

In each of those activities, the choices we make will depend on how

we conceive of the role of a lawyer in an adversary system. The funda-

mental tension is between what our American colleagues refer to as

their duty of “zealous representation” of their clients (our own rules of

conduct say we have a duty to represent clients “resolutely”) while at the

same time fullling our duties as ocers of the court, which include a

duty to be candid with the court.