Alice Woolley, “The Lawyer as Advisor and the Practice of the Rule of Law”

Working Abstract

When lawyers advise clients they help the law to accomplish both its function as a system of social settlement, and the respect for the governed reflected in its processes and structure—i.e., the rule of law. A lawyer can only do so, however, if his or her advice provides an objectively reasonable assessment of the law, while also facilitating the accomplishment of the client’s goals and objectives. The lawyer as advisor is neither an advocate for the client’s goals, nor an adjudicator of the legality of those goals. Rather, the lawyer’s advising role has an irreducible duality, requiring good faith respect for both the law and the client—not unlike the attitude taken by a friend when offering advice. Unfortunately, the law governing Canadian lawyers does not provide sufficient guidance to lawyers as to their obligations when advising clients. There are various ways in which that law could be reformed, each of which has strengths and weaknesses.

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