Working within small communities: Unique ethical challenges COMPETENCE COMMUNITY INVOLVEMENT CONFIDENTIALITY WITHDRAWAL QUALITY OF SERVICE 22 The <strong>Society</strong> Record
“These dwindling numbers [of lawyers in rural communities] mean greater opportunities for young lawyers to work in small-town firms that offer a unique work experience, work/life balance and chances for long-term employment.” [Generation Next – Encouraging new lawyers to consider small-town practices, Sobowale, J., <strong>Society</strong> Record, Fall 2012, p. 30] One of Council’s strategic priorities for <strong>the</strong> past several years has focused on how <strong>the</strong> <strong>Society</strong> can ensure access to legal services in all parts of <strong>the</strong> province. The goal is to do so by supporting lawyers in rural communities and encouraging more lawyers to practise outside of <strong>the</strong> main metropolitan centres. Statistically, <strong>the</strong> profession’s demographics mirror those of <strong>the</strong> general population. Lawyers are getting older. They are not being replaced by newer members of <strong>the</strong> profession. There has been a consolidation of services outside of smaller communities. Many small communities that once had lawyers no longer do. The <strong>Society</strong> recognizes <strong>the</strong> challenges faced by small-town practices; however, <strong>the</strong> rewards and opportunities are substantial. Lower costs for housing, an opportunity for more community involvement, and with technology, ready access to resources can make practice in <strong>the</strong>se areas both enjoyable and profitable. “Young lawyers in small, rural firms learn quickly to be comfortable with different areas of law.” [ibid, p. 30] “I network and participate in <strong>the</strong> community. There are lifestyle benefits but we still work really hard. If you have a strong work ethic, <strong>the</strong> opportunities here are great.” [ibid] Some numbers serve to illustrate <strong>the</strong> current realities. At present, just over 27 per cent of <strong>Nova</strong> <strong>Scotia</strong>’s lawyers practise outside of <strong>the</strong> Halifax Regional Municipality (HRM). There are just over 1,300 lawyers in HRM, over 200 in <strong>the</strong> Southwest District, more than 180 in <strong>the</strong> Central District and about 135 in Cape Breton. These numbers are very flat and trending slightly downwards. In terms of years at <strong>the</strong> Bar, just less than 30 per cent of <strong>the</strong> profession has practised for more than 27 years. That percentage is even higher outside of HRM. At <strong>the</strong> o<strong>the</strong>r end of <strong>the</strong> profession, fewer than 24 per cent have practised for less than seven years and that percentage is lower in <strong>the</strong> rural communities. This has prompted <strong>the</strong> <strong>Society</strong>, through its Rural Practice Working Group, to explore ways it can play an appropriate role in supporting <strong>the</strong>se lawyers throughout <strong>the</strong>ir careers – recognizing that for senior lawyers, <strong>the</strong> issues trend towards retirement matters, while for newer ones <strong>the</strong> focus is on business development. Consideration is being given to how technology can play a role in supporting <strong>the</strong> public and <strong>the</strong> profession. O<strong>the</strong>r initiatives include encouraging articling clerks to seek positions in smaller communities, and urging law firms to look at succession and <strong>the</strong> need to bring along <strong>the</strong> next generation of lawyers. “Only half of rural lawyers have enough work available to hire an articling clerk … retention rates also vary within regions.” [ibid] Research to support <strong>the</strong> development of any long-term initiatives is crucial. The <strong>Society</strong> is working with senior students at <strong>the</strong> Schwartz School of Business at St. Francis Xavier University in Antigonish, to ensure <strong>the</strong>re is a sound factual basis, based on research, for <strong>the</strong> work that is undertaken. A range of ethical issues relate to practice in small communities. And by ‘small’, we mean both geographically small, as well Victoria Rees & Darrel Pink Director, Professional Responsibility & Executive Director as close communities based on culture, ethnicity or any o<strong>the</strong>r range of possible combinations and permutations. Below, we explore some of <strong>the</strong>se, based on matters <strong>the</strong> <strong>Society</strong> has addressed with members through its various programs. None of <strong>the</strong> ethical issues presented should create a barrier to communitybased practice. What <strong>the</strong>y show is a need for all lawyers, regardless of where <strong>the</strong>y work or in what kind of practice, to be careful to avoid circumstances that can foment certain types of behavior. In shedding light on <strong>the</strong>se situations, our goal is not to discourage lawyers but to enlighten <strong>the</strong>m about circumstances that can create ethical challenges. Forewarned is forearmed, and awareness is one of <strong>the</strong> most important forms of prevention. Ethical challenges Working in a small or close community offers many advantages. For example, some lawyers grow up in <strong>the</strong> community in which <strong>the</strong>y end up practising. Clients can often be friends, family members, neighbours or classmates with whom you have grown up. For purposes of <strong>the</strong> client identification regulations, ‘knowing your client’ and avoiding fraud becomes much easier! However, <strong>the</strong>se same benefits can also create challenges: i) Crossing boundaries from personal to professional – Lawyers’ close relationships with clients has at times resulted in poor quality of service, an inability to say no or be honest and candid where <strong>the</strong> client has an unsustainable case, or carrying out <strong>the</strong> work informally and failing to properly document files. Such conduct has led to public reprimands in a number of cases, which does nothing to improve a lawyer’s reputation. ii) Making assumptions based on personal knowledge and losing sight of your job as counsel. This happens too often in cases where lawyers take instructions relating to <strong>the</strong> creation of wills, and allow o<strong>the</strong>r family members to become too involved or to exercise undue influence. iii) Having a less formal solicitor-client relationship – Engaging in small talk, gossip or swearing during conversations can all be examples of this problem, depending on <strong>the</strong> circumstances. Some clients may expect you to do things on an informal basis, to ‘help <strong>the</strong>m out’ because of your friendship. Beware <strong>the</strong> friend who approaches you in <strong>the</strong> street, hands you $200 and asks you as a ‘buddy’ to register a document for him, with no need of ‘opening a file or anything that formal’. Spring 2013 23