legal opinions cannot be over non-legal matters like policy

I first read Chapter three, section two of the Law Society of British Columbia’s Professional Code of conduct for reasons why Mark Crosbie should be disciplined for refusing to serve his institutional duties because an officer told him to ignore them. But it got so much worse.

The University of British Columbia University Counsel violated their professional code of conduct for offering a legal opinion on a non-legal matter. At best, they could have offered a non-legal opinion on institutional policies after stating they had no knowledge of policies or how they are mandated. If the UBC had wanted a professional opinion on policy and its adherence, the University Counsel could only refer the UBC to an expert on the subject, according to the Law Society of British Columbia’s Professional Code of Conduct.

The Law Society will have to decide if that fits under their negligence or gross incompetence definitions. But personally, I can’t imagine anything worse than working for an academic institution and not understanding the severity of advising the institution that they could ignore academic freedom if it makes an academic freedom violation complaint go away.

Had the UBC actually completed their required actions in 2015, the importance of defending academic freedom would have been taught to every new hire and promoted employee. If they had, I wouldn’t have been the only UBC Person on campus trying to argue that the UBC — as an institution — violating my academic freedom was a BFD.

So let’s start at the beginning. Follow along at home if you want:

3.1-1  In this section

“competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement, including:

(a)     knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practises;

As institutional lawyers, the UBC University Counsel had a professional obligation to understand the nature and terms of their engagement. They knew or should have known that policy adherence is not optional within an institutional setting as UBC Persons. They should have all been signed off in their training documents that they understood they had to follow policy.

I know Andrew Szeri should probably have had to sign off annually that he neither served a conflict of interest in the past year prior or will commit a conflict of interest in the next. And yet, he asked a UBC Counsel to just do what he said and ignore his obligation to the institution he actually worked for. Where a University Counsel’s loyalties lie are made clear here:

When the client is an organization

3.2-3 Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.

Institutional lawyers must know the procedures of their institution. They clearly state violating policies stands on equal footing with violating the law. They are both improper conduct, and that there is no difference between them whenever “improper conduct” is mentioned. No lawyer gets to define what words mean in a controlled document.

To any competent trainer, the idea that they even think they could are fighting words.

Nowhere in the professional code of conduct does it say UBC lawyers can choose which professional duties they can provide their organization. They must provide *all* of them, even the ones UBC Officers tell them to ignore. And they must do them to the expectation the professional code of conduct sets out here:


3.1-2  A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.

But a competent lawyer who is a member in good standing with their Law Society — not looking for a reason to get away with violating policy — should understand the difference between a legal matter they would have a professional opinion about and a non-legal matter they’d take their best shot at answering while looking for an expert to ask in case their opinion they must have identified as a non-legal was incorrect.

[5]  A lawyer should not undertake a matter without honestly feeling competent to handle it, or being able to become competent without undue delay, risk or expense to the client. The lawyer who proceeds on any other basis is not being honest with the client. This is an ethical consideration and is distinct from the standard of care that a tribunal would invoke for purposes of determining negligence.

[6]  A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should:

(a)     decline to act;

I don’t have their training documents in front of me, but I would be willing to bet the shinest dime I have that no one at the University of British Columbia University Counsel was actually signed off on their ability to give policy advice as part of their duties to even have a professional, non-legal opinion about.

[7]  The lawyer should also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other non-legal fields, and, when it is appropriate, the lawyer should not hesitate to seek the client’s instructions to consult experts.

I know UBC University Counsel knew policy was non-legal. I can’t tell you how many times I heard “not legally required” when asked the university to respect my rights and freedoms as a UBC Person. Still, I’m pretty sure the following two paragraphs were as ignored as much as most of this section of their code.

[7.1]  When a lawyer considers whether to provide legal services under a limited scope retainer the lawyer must carefully assess in each case whether, under the circumstances, it is possible to render those services in a competent manner. An agreement for such services does not exempt a lawyer from the duty to provide competent representation. The lawyer should consider the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The lawyer should ensure that the client is fully informed of the nature of the arrangement and clearly understands the scope and limitation of the services.

So did Mark Crosbie and Co sign their name to a legal opinion over a non-legal matter without making it clear it was over a non-legal matter? Did they make it clear they knew almost nothing about the topic they were opining?

Dr. Ono put his and his institution’s reputation on the opinion that policies and academic freedom can be ignored, regardless of how it was — or wasn’t —  labelled. I’m just including this section on competency expected from lawyers because it amuses me just so much:

[13]  The lawyer should refrain from conduct that may interfere with or compromise the lawyer’s capacity or motivation to provide competent legal services to the client and be aware of any factor or circumstance that may have that effect.

Ever since the University Counsel had already formed the opinion that UBC Officers may commit some forms of improper conduct, they put blinders on themselves. Instead of looking for what serves the University of British Columbia’s interest, they went looking for reasons not to hear complaints about how lawyers do not have the authority to redefine terms listed in a controlled document or that academic freedom cannot be violated just because it’s not mentioned in the law.

The UBC’s University Counsel’s violation of both their professional code of conduct and the UBC’s definition of improper conduct has led to the UBC Officers violating a student’s rights and freedoms.

[14]  A lawyer who is incompetent does the client a disservice, brings discredit to the profession and may bring the administration of justice into disrepute. In addition to damaging the lawyer’s own reputation and practice, incompetence may also injure the lawyer’s partners and associates.

Presented without comment.

[15]  Incompetence, negligence and mistakes – This rule does not require a standard of perfection. An error or omission, even though it might be actionable for damages in negligence or contract, will not necessarily constitute a failure to maintain the standard of professional competence described by the rule. However, evidence of gross neglect in a particular matter or a pattern of neglect or mistakes in different matters may be evidence of such a failure, regardless of tort liability. While damages may be awarded for negligence, incompetence can give rise to the additional sanction of disciplinary action.

What about a “comedy of errors” level of incompetence? How about: “at no point, could tell ass from elbow” level of foolery?

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