A lawyer provides bad advice and it works.

Thanks to Neil Wilson at The Court for highlighting this issue.

 Last week the Supreme Court of Canada issued a decision holding that the government of the Northwest Territories was not negligent when it failed to close down a mine in the midst of a long and violent strike involving the use of replacement workers. A striker had ultimately entered the mine and planted a bomb, which detonated, killing 9 miners.  The Court held (2010 SCC 5) that while the Government owed a duty of care, and had had the legal authority to shut down the mine given the known and clear safety issues that had arisen, it was not negligent in failing to do so because it had relied on a legal opinion that it lacked that legal authority.  The fact that the legal advice was wrong - and it appears badly wrong - was not relevant.  The Court said:

But in the context of allegations of negligence against those responsible for regulating mine safety, the fact that this advice was received and acted on cannot be dismissed, as the trial judge did, as being of "no consequence” (para. 834). This advice goes precisely to the issue of whether the government took reasonable care in deciding not to close the mine. It will rarely be negligent for officials to refrain from taking discretionary actions that they have been advised by counsel, whose competence and good faith in giving the advice they have no reason to doubt, are beyond their statutory authority: see, e.g., Dunlop v. Woollahra Municipal Council, [1981] 1 All E.R. 1202 (P.C.), at p. 1209; Stafford v. British Columbia, [1996] B.C.J. No. 1010 (QL) (S.C.), at paras. 78‑81.  In the context of this case, the opposite view leads to alarming results, as the trial judge's holding here demonstrates. The effect of the trial judge's holding is that officials may be found to have acted negligently by refraining from taking action that they believed in good faith and on the basis of reputable, professional legal advice, to be unlawful.  In other words, the law of negligence would require the inspectors to take action which they believed abused their powers.  This cannot be the law. There is no argument advanced on behalf of the appellants that it was unreasonable for officials to rely on the advice received or that they did not seek or rely on it in good faith.

The issue this raises for me is as to the impact this has, if any, on the lawyer's ethical obligations in the circumstances.   I can consider this two ways.  First, I think it is clear that the lawyer has an ethical duty not to provide incompetent legal advice, even if nothing bad will happen to the lawyer (or even the client) if the lawyer does so.  Given the facts, and the analysis elsewhere in the Supreme Court's judgment, this advice seems to have been bad, if not actually incompetent.   And of course it had horrible consequences, in the form of 9 dead miners and increased political turmoil.  I think it is reasonable to conclude that the lawyer owed an ethical obligation to give better advice than he did.  Second - and this is the sticking point - can the lawyer in that situation be properly subject to disciplinary consequences?  I am as confident as I can be that the lawyer will not face any such consequences.  

But if the lawyer does not, then what regulatory mechanism exists to prevent the giving of this sort of advice?  Not only is the advice not injurious to the client, it actively benefits the client.  This creates at minimum an incentive for the advice to be given, or at least for little attention to be paid to its quality.  Some might even argue that a lawyer truly seeking to achieve the best legal outcome for the client is ethically obligated to give the advice, no matter how bad.  

The window left in the judgment is the idea that it must be reasonable for the government official to rely on the advice received, that the advice must be given by a "reputable, professional" advisor and that it must have been sought in good faith.  If the advice was bad enough - "not even wrong", to quote the physicist Wolfgang Pauli's description of a colleague's paper - it may not provide the defence for which it was sought.  In my view this, in the end, is far more likely to achieve the regulatory result of incenting lawyers to give good advice than is disciplining lawyers.  It is unfortunate that the Court framed that window so narrowly.

Comments

[Monroe Freedman]

CYA.
QED.

[Sanpete]

How should the window be framed?

[Alice Woolley]

Sanpete,

Great question. In a case like this one, where the lawyer was department counsel - i.e., of the government - I would say that the advice cannot shield the government if the advice was negligent (did not meet the standard of the reasonably competent lawyer). When the lawyer is at arm's length from the government, a higher standard (gross negligence?) might be warranted.

The problem I have with the SCC's judgment is that it emphasizes not the quality of the advice, or the conduct of the lawyer, but whether the client would have any reason to doubt that competence. That is, it focuses on the person of the lawyer not the conduct of the lawyer. That is in keeping with general trends in the approach to ethics up here, which I find regrettable. But it also does not consider in any way what the duties of the lawyer might be, or whether the advice given in this instance met the lawyer's own obligations in tort or ethics.

Alice

[Sanpete]

It is strange that the court, when it has decided the government took reasonable care in following the advice, which seems right, doesn't then turn to the obvious next question, whether the advice itself, given by the government, showed reasonable care. That would seem not a matter of legal ethics but legal responsibility. One of the blog posts about this at The Court appears uncertain about whether the ruling forecloses the possibility of a separate suit against the attorney. Why would a separate suit be needed if counsel was in-house?

[Monroe Freedman]

Shouldn't we separate the two issues? I.e., the client can be reasonable in relying on the lawyer's advice (and therefore protected in tort), and the the lawyer held responsible in disciplinary proceedings for incompetent advice. Also, the lawyer might be held liable in tort to the injured party on the ground that the injured party was clearly within the risk of negligent advice.

[Alice Woolley]

Sanpete, one possibility is that the negligence of the legal advice was never pleaded. It is also perhaps one of those circumstances where a poor trial judgment set up the appeal in a certain way. The conclusion that the legal opinion was of "no consequence" was I think clearly erroneous, but that perhaps led the SCC too far in the opposite direction. In any event, I entirely agree that the issue is one of legal responsibility; although I think I would disagree that legal ethics doesn't incorporate notions of legal responsibility (to the extent you are suggesting that). A separate suit against government lawyers, who are not insured as all private practitioners are in Canada, seems unlikely to be a useful alternative. And as you say, a separate suit should not be necessary.

Monroe, I agree that they are distinct issues. However they are also related. The problem I see with making any opinion work, no matter how bad, is that the incentives it creates on everyone for the giving of bad advice are too high. I think that may be nonetheless appropriate in the criminal context, with strong presumptions of innocence and constitutional values, but in the civil context I think there should be limits on the effectiveness of bad legal advice. The question of how bad that advice would need to be is open. And of course if the legal advice left the client open to civil liability because it was negligent, then the lawyer would be liable in tort to the client (although that would not work in this case, where the lawyer was in-house). I'm not sure under Cdn. tort law if a third party affected by the bad legal advice could sue the lawyer or not. It does not fall easily into the negligent misstatement jurisprudence. Can a third party affected by bad legal advice in the US sue in tort?

[John Steele]

I suppose that the people who claim were are all "overlawyered" would say that we turn to lawyers for advice not because they really are experts about all things (e.g., mine safety during a strike) but because we understandably seek protection from suits and attacks.