Abstract
This paper is a response to recent academic trends proposing Codes of Conduct for law students. I argue against the notion that such Code(s) treat law students ‘as if’ they were lawyers. In particular, any proposed Code of Conduct should never have extra‐territorial effect and govern actions in a law student's private life. Nor should there be a duty to report alleged instances of misconduct for fear of creating a climate of distrust and secrecy. These problems, as a whole, would defeat the development of professionalism or ethical behaviour among law students.
Notes
1 The Code has been attached as Appendix A for ease of reference (subject to editorial revisions in the Windsor Yearbook of Access to Justice – Special Issue in Honour of Rose Voyvodic (2009)). Draft copies available at: http://ssrn.com/abstract=1325051 [Last accessed 1 October 2009] and http://web4.uwindsor.ca/units/law/newschannel/archives/facultyS09.nsf/831fc2c71873e46285256d6e006c367a/1f927bbf5545754b852575b2007fceb5/$FILE/LearningToActLikeALawyer-AModelCodeofProfessionalResponsibilityForLawStudentsMay12.pdf [Last accessed 1 October 2009].
2 ‘Learning to Act Like a Lawyer: A Model Code of Professional Responsibility’, Canadian Association of Law Teachers Conference (27 May 2009); ‘Developing a Model Code of Professional Responsibility for Law Students: Why and How?’, Faculty Seminar (University of Manitoba, Faculty of Law) (31 October 2008); ‘The Ethical Obligations of Law Students: The Need for a Student Code of Professional Responsibility’, Re‐Imagining Access to Justice: A Symposium in Honour of Professor Rose Voyvodic (19 September 2008).
3 ‘Learning to Act Like a Lawyer: A Model Code of Professional Responsibility for Law Students’, Professionalism and Serving Communities, Eleventh Colloquium on the Legal Profession (24 October 2008).
4 Aside from Tanovich, other panellists included Adam Dodek, Vanessa Gruben and Daphne Gilbert (all from the Faculty of Law at the University of Ottawa) and Richard Devlin (of the Faculty of Law at Dalhousie University). Conference Agenda available at http://www.acpd-calt.org/shared_docs/AnnualConference2009_program.pdf [Last accessed 1 October 2009].
5 See 4.02 of the proposed Code which states that: ‘A law student's duty to act with integrity, honesty, in good faith and in a manner consistent with the pursuit of justice does not end when he or she is no longer engaged in the life of the law school. Consequently, unjustified conduct in a law student's personal life which reflects negatively on the profession and law school may be subject to discipline’ (emphasis original).
6 Sections 1.0 (the Preamble), 3.0 (Pledge for Incoming First Year Law Students), 4.01 (Professional Misconduct), 4.02 (Conduct Unbecoming a Law Student), 7.0 (Reporting Misconduct) are addressed later in this paper. The remaining sections of the Code deal with its general application (Section 2.0) or make vague, general references for law students to be competent (Section 5.04) or abide by regulations set forth by third party employers like legal clinics (Section 5.10) and summer/articling positions (Section 5.11).
7 Tanovich (Citation2009, p. 9) observes that ‘[a] scan of the common law schools reveals that the norm is for law schools in Canada to have a policy setting out only academic misconduct offences (e.g. Victoria, Alberta, Calgary, Western, Queens, Ottawa, and Dalhousie) and then to rely on the general university policy or code of conduct and non‐discrimination/harassment policy to govern non‐academic misconduct’ (footnotes omitted).
8 There are also ancillary issues that are raised by the proposed Code. If we start with the tenuous assumption that we are training ‘future lawyers’, and lawyers wear business attire, would the Code also apply to ways in which a law student dresses? I.e. it might be a ‘logical’ extension of the Code to regulate how law students dress. Jeans (especially torn or frayed jeans), body piercings, tattoos, distinctive hair dyes, certain types of footwear, athletic wear, ‘urban wear’, t‐shirts, vests, etc., might be deemed to violate the ‘spirit’ of the Code.
9 It has long been the struggle of many under‐represented or minority groups – whether racial, sexual or gender based – to preclude the paternalistic supervision of the ‘State’ (or, in this case, law schools) in their private affairs.
10 Despite how unpopular this may make me among my academic peers.
11 The earlier Section 4.01 of the Code titled ‘Professional Misconduct’ admonished that: ‘It is professional misconduct for a law student to violate (or to assist or induce another student to violate) the minimum standards of professional conduct set out in this Code when interacting with their colleagues, professors, law school administrators and other law school staff or when acting as student lawyers. Irrespective of the locus of such conduct, this section is triggered where the conduct reasonably relates to activities or matters connected with the law school ’ (emphasis original, underlining added).
12 Note also the equivocation between law students and practising members of the bar.
13 Tanovich (Citation2009) also discusses certain bathroom graffiti, and identifies it as being ‘homophobic graffiti’ (which, in my view, is definitely an ‘intra’ law school activity, and therefore governed by internal discipline procedures, or that of the university). According to Tanovich, the graffiti stated that ‘Samir is Gay’, ‘Arab is Gay’ and ‘40s a Fag’. Notice that the graffiti could equally represent instances of Islamophobia, but nowhere does the author acknowledge this. Instead, the steadfast attention to it being ‘homophobic and racist’ is made explicit.
14 A full archive, including comments, are on file with the author.
15 ‘A Manly Man's Guide to “Friends with Benefits” (by Harry Ballsonya)’ (7 November 2006), on file with the author:
*Disclaimer: before all you feminist lesbians get your boxer‐briefs in a bunch, remember that this is JUST A JOKE. I'm not condoning insensitivity, sex with strangers, or sex with any of you. So relax! or better yet, if your easily offended by sexist humour, don't read this.
** Disclaimer to the Disclaimer: I know not all lesbians are feminists and not all feminists are lesbians. But I stand by the boxerbriefs.
The author goes on to describe his intent to create a ‘warning’ list for a number of different kinds of women that male law students might interact with and a ‘how funny it'd be to fuck her’ scale] …
2. Girls you don't really know but is in law guy – sure you've creeped her in A2J big group, but what do you know about her. She could potentially ruin your law career, because her feminist man‐hating vagina powers are unknown. She could also be a lesbian. I'd stick to casual flirting on Tuesday's.
Complexity‐rating: 3/5
… But How funny it'd be to fuck her: 2/5 – two points cuz she could be freak
[After seven entries, this part of the blog ended with the following:]
Stick to the guidelines boys and everything will be fine … actually don't even bother – A Kill is A Kill – happy hunting!
16 The current graduating class of 2009 were the Law 1 students at that particular time.
17 This is not a legal opinion, however.
18 The characterisation of such materials as ‘crude’ is, of course, a matter of opinion. But such speech is still protected under Canadian law (see Moon, Citation2000).
19 Safer Roads for a Safer Ontario Act, 2007, SO 2007, c 13 – Bill 203.
20 For a full history of Canada's solicitation and communication laws, see the Report of the Subcommittee on Solicitation Laws (Citation2006).
21 Indeed, if we are training law students to ‘think’ like lawyers, then all law students ought to take the conservative approach and report anything that ‘may be’ misconduct.
22 Section 7.02 of the Code.
23 Would a good faith (but ‘heated’) discussion about the nature of homosexuality (i.e. whether learned behaviour, biological in origin or otherwise), or a good faith (and ‘heated’) discussion about the pros and cons of Islam versus Judaism, violate the Code for being homophobic, Islamophobic, or anti‐Semitic?
24 Report of the Subcommittee on Solicitation Laws (Citation2006):
On a general level, court decisions tended to hold ‘that where a level of importuning or persuasion was exercised, soliciting had taken place.’ However, the issue remained murky until February 1978, when the soliciting law was essentially struck down in Hutt v. R. In that seminal case, the Supreme Court of Canada adopted a very narrow interpretation of ‘solicit’, ruling that in order to meet the standard for criminal conduct, soliciting had to be pressing and persistent. Subsequently, the Supreme Court clarified that to be pressing or persistent, the impugned solicitation had to be ‘directed toward a single potential customer and could not consist of an accumulation of advances toward different potential customers.’…
Responding to concerns about judicial interpretation, but ignoring the Fraser Committee's position with respect to the soliciting law, in December 1985, the government introduced Bill C‐49, replacing the soliciting law with the communicating law. This provision, now section 213, criminalizes communication in a public place for the purposes of engaging in prostitution or of obtaining the services of a prostitute. Now the key provision for dealing with street prostitution, this amendment did away with the difficult term ‘solicitation’, solidified the concept that ‘every person’ means that both men and women selling sexual services and clients are liable to prosecution. This amendment also included a motor vehicle in the definition of a ‘public place.’ However, by focusing on the public aspects of prostitution, the goal of the communicating law was obviously ‘to address the nuisance problem; it wasn't to address the overall prostitution issue’. (footnotes omitted)
25 If we accept the premise that we ought to regulate law students ‘as if’ they were lawyers, this inevitably implies that law schools ought to conduct criminal background checks to determine fitness to enter law school in the first place. Law schools no longer become places of learning, but breeding grounds for new lawyers. Nothing more. Tanovich (Citation2009) himself makes this equivocation at the start of his proposed Code. In the first footnote he cites the Law Society of Upper Canada's Rules of Professional Conduct and states that ‘rules governing lawyers is an important part of the professionalization process at law school since it is these rules that students will be bound by when called to the Bar’ and the Preamble to the Code notes that ‘[a]bove all, the conduct of law students must reflect that they are part of a community of professionals’.
26 I appreciate that some law students are ‘mature’ students, and their level of naivety may be diminished. It is also true that many law students throughout the Commonwealth (aside from Canada) enter law school directly from high school, thereby decreasing their level of maturity and worldliness.
27 Especially when one considers that many activities of law students are already governed by the Criminal Code, RSC 1985, c C‐46, defamation law and/or intra‐university policies and regulations (like IT and acceptable use policies).