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.