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Eugene Chao December 1, 2020

Legal Ethics in the Funny Papers: Calvin and Hobbes and Dilbert and the Code of Professional Conduct

The Bar Admission Course of Newfoundland and Labrador requires articling students to write a short paper on legal ethics and the Code of Professional Conduct using a recently completed file as an illustrative foil. The author1 (an articling student) felt this sounded suspiciously close to yet another memo, and while it is widely known that articling students love nothing more than yet another memo, the author wished to save the space in his heart for all his outstanding actual memos so that he might love them all the better. Consequently, the author elected to pursue an alternative assignment, which ultimately became the following question:

What do Calvin and Hobbes2 and Dilbert3 have to say about legal ethics and the cultural history of the law?

This paper was the result.4

Calvin is an intelligent, highly imaginative six-year-old who is very much into doing things at his own pace or otherwise not at all. This predisposition often puts Calvin at odds with rules and imposed structure, manifesting as rebellions against, inter alia, school, organized sports, his long-suffering parents, and their babysitter. Calvin’s opposition to authority provides many opportunities for Calvin and his stuffed tiger, Hobbes, to question the nature and sensibility of established norms, and forms the basis of many of the philosophical musings which have given Calvin and Hobbes its unusually long life and celebrated position among comic strips.

1 Eugene Chao, Osgoode Hall Law School, JD 2020, presently completing articles at the Department of Justice and Public Safety, Newfoundland and Labrador. 2 Calvin and Hobbes, Copyright Bill Watterson and Andrews McMeel Syndication. 3 Dilbert, Copyright Scott Adams and Andrews McMeel Syndication. 4 The author is indebted to John Joy, retired Judge of the Provincial Court of Newfoundland and Labrador, for his gracious assistance in the editing process and for the clever title, which is his invention entirely.

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While the practice of law might seem distantly removed from Calvin's world of early bedtimes and school cafeterias, the role lawyers play in establishing, interpreting, and maintaining rules and norms make us squarely a part of the adult world frequently under Calvin's microscope. When considered together with the Code of Professional Conduct5, Calvin and Hobbes provides, if not a "how-to" guide, perhaps a "how-not-to" guide to some elements of good lawyering and legal practice.6 A recurring theme in Calvin and Hobbes is the relationship between language and the truth. Calvin recognizes the slipperiness of even ostensibly straightforward words used between native speakers and the role of context and subjective intent in conveying meaning. For example:

June 12, 1987

5 Law Society of Newfoundland & Labrador, Code of Professional Conduct (adopted by Benchers effective January 1, 2013 as amended). 6 While the strips do not break new ground in moral philosophy, they are less depressing than the records of the Law Society Disciplinary Panel and better illustrated, too.

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Calvin also repeatedly wrestles with the inadequacy of language ascribing objective moral or ethical values (e.g.: good, bad, evil) where internal desires and external motivations collide. For Calvin, these concerns typically become preoccupying in the weeks leading up to Christmas.

December 18-19, 1987. As lawyers, a great deal of our work centres around language, whether in oral argument or informational, communicative, or persuasive written pieces. The words we use—and by extension, our choice in selecting them, reflects on our knowledge, reasoning, and judgment. As the expression goes, those qualities are "why they pay us the big bucks".7 Those qualities are frankly central to the practice of law. It then naturally follows that our ability to use language clearly and incisively is of paramount importance to success in the profession. This bears directly on rule 3.1-2, Competence, specifically in relation to subsection (c)(ii)-(iv) which are,

7 Though the author notes that it certainly doesn't feel that way in light of the pound of flesh presently owed to TD Bank.

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respectively: analysis, application of the law to the relevant facts, and writing and drafting, as well rule 3.2-2, Honesty and Candour. Commentary [7] to rule 3.1-2 requires that a lawyer recognize the limits of their own competence. Closely related, [9] of the same section cautions that:

[9] A lawyer should be wary of providing unreasonable or over-confident assurances to the client, especially when the lawyer’s employment or retainer may depend upon advising in a particular way.

Rule 3.2-2 requires that, in relation to their client, a lawyer "must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter." Commentary [2] clarifies this to mean "a competent opinion based on a sufficient knowledge of the relevant facts…open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results." Together, these provisions warn against bluster. It provides false comfort to the client to have a lawyer make unsupportable claims about their ability or the client's legal position. The client will have paid for sweet nothings and the lawyer will live under the shadow of their incompetence being discovered. Instead, rule 3.1-2[8] advises that a lawyer should:

…clearly specify the facts, circumstances and assumptions on which an opinion is based, particularly when the circumstances do not justify an exhaustive investigation and the resultant expense to the client. However, unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than mere comments with many qualifications…

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Calvin, however, has discovered the power of both ambiguous language and sensationalized hyperbole, deploying both for his amusement to the torment of his mother and Susie Derkins, a girl at school:

February 1, 1989

December 20, 1989

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In addition to the powers of both omission and exaggeration, Calvin demonstrates a precocious grasp of the power of deliberately obtuse, mealy-mouthed language to distort the truth,8 or even manufacture an entirely false reality.

May 13, 1993

September 1, 19929 Beyond illustrating the relationship between truth and language, Calvin and Hobbes provides a great deal more commentary on other sections applicable to the Code. Rule 3.5-1-2 provides for the Preservation of Clients' Property, which includes, in addition to money and negotiables, all other papers and documentation, as well as personal property, with rule 3.5-2(a) prescribing the appropriate standard of

8 One is reminded of old English judgments. 9 Though it has no substantive bearing on the strip, Calvin’s contortions of language are unimpressive to his father for reasons that Calvin may not fully appreciate: Calvin's father is a patent attorney.

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care to be that of a "careful and prudent owner" for like property. Calvin has the opportunity to experience the importance of this principle when he borrows his father's binoculars.

May 16-17, 1988

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Calvin’s attempts at problem-solving is also illustrative. Note that his first instinct is to deceive the owner as to the state of his property, contrary to the directions of rule 3.2-2, above. Reviewing decisions of the Law Society, the choice to double down often appears to separate letters of caution from suspensions and disbarment. The Code notes in commentary [15] to rule 3.1-2 (Competence) that no lawyer is held to a standard of perfection and an individual error or omission “will not necessary constitute a failure” of professional competence. However, the Code goes on to warn that a “pattern of neglect or mistakes in different matters” may be viewed much less charitably.

May 20, 1988

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Rule 5.1-5 concerns Courtesy, requiring a lawyer to be "courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings." The commentary warns that, even if a lawyer escapes charges of contempt, the Law Society may nevertheless sanction a pattern of "rude, provocative or disruptive conduct" as professional misconduct. Calvin is fortunate he is not a member of the bar. Though, as this strip indicates, one may escape charges of contempt and professional misconduct and still suffer consequences. This might well be the case for a lawyer.10 A little kindness goes a long way.

August 8, 1992 Calvin and Hobbes was written with a deliberate effort to present the strip from Calvin's perspective. In fact, Calvin's parents have no names in the strip, because, as author Bill Watterson indicated, "as far as the strip is concerned, they are important only as Calvin’s mom and dad."11 As a result, while ethics and even legal ethics feature prominently in some strips, the issue is typically approached from the perspective of a six-year-old who counts Christmas presents and detention among his primary concerns.12

10 See rule 2.1-1[1]-[2]: "…If integrity is lacking, the lawyer’s usefulness to the client and reputation within the profession will be destroyed, regardless of how competent the lawyer may be. [2] Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety." 11 "Calvin's Parents", https://www.calvinandhobbes.com/about-calvin-and-hobbes/. 12 In that context, Calvin and Hobbes has some excellent strips on the freedom of speech and compelled labour (homework and school presentations), the source of parental authority and

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The below strip comes about as close as Calvin and Hobbes ever does to directly addressing lawyers and legal practice. While the joke is obviously about frivolous and predatory lawsuits, there are no lawyers involved. In large part, the humour is from the juxtaposition of a child without the capacity to sue (guardian ad litem or otherwise) considering the adult concept of the frivolous lawsuit. The frivolous and predatory lawsuit falls well outside the pale of decent behaviour. It consequently violates several provisions of the Code simultaneously, being contrary not only to the duties of integrity (rule 2.1-1) and honesty and candour (rule 3.2-2), but also to the lawyer’s duty as an advocate in rule 5.1-1, which requires that a lawyer act “within the limits of the law”, and more specifically in commentary [1] to do so “without illegality…and in a way that promotes the parties’ right to a fair hearing in which justice can be done.” The rule goes on in 5.1-2 to clarify that this includes proceedings “legal in themselves” if they are “clearly motivated by malice…and brought solely for the purpose of injuring the other party”.

June 27, 1987 In comparison, Dilbert, a comic by Scott Adams, is much more on the nose with regard to the law. This is not surprising, as Dilbert is aimed at an adult audience. Dilbert is an engineer in Silicon Valley and the strip takes place primarily in an office. Returning to the relationship between truth and language, Dilbert often addresses lawyers and the cultural history of the law directly, with honesty,

the necessaries of life, (bath time, bedtime, and dinner, among others), and guilt and mens rea (Christmas). Sadly, these were largely beyond the scope of the Code and this paper.

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candour, and clarity again taking a main role. The lawyers in Dilbert are almost uniformly caricatures of the cultural archetype of the "bad lawyer"—expensive, circumlocutious, deliberately obtuse, and possessed of a natural inclination to enrich themselves at the expense of others. Indeed, in Dilbert, this archetype occasionally seeps beyond character and action into physical form, with lawyers who appear to be literally part-human and part-weasel. See:

September 15, 2001 Even though the lawyer-weasel is not working for Dilbert, it's clear that the lawyer has waited until the very last minute to press something onto the opposing party. Further, Dilbert has expressly indicated that he does not understand what has been put in front of him. If this lawyer-weasel has not yet failed to meet the deadline (rule 3.2-1[6]), he has at the very least failed to address professional matters with promptness as required by rule 7.2-5. Moreover, rule 7.2-9 prescribes procedures for when the opposing party is unrepresented. In such cases, the lawyer must:

(a) urge the unrepresented person to obtain independent legal

representation;

(b) take care to see that the unrepresented person is not proceeding under

the impression that his or her interests will be protected by the lawyer; and

(c) make it clear to the unrepresented person that the lawyer is acting

exclusively in the interests of the client.

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It appears that the above lawyer has done none of these things and is actually quite pleased with himself. Even where lawyers are ostensibly on-side in Dilbert, they are deliberately difficult and slow-moving to juice up their billable hours. Here, a lawyer violates almost the entirety of rule 3.6-1 (Reasonable Fees and Disbursements), which requires "fair and reasonable fees" based on, inter alia, the expended time and effort, difficulty of the matter, the lawyer’s own skills, and results.13 However, Dilbert’s distress in the final panel indicates he is aware of his lawyer padding his legal fees, perhaps implying that Dilbert has been subjected to this type of behavior before. It is possible that Dilbert has previously consented to a fee for this “service”, as required in rule 3.6-1[1](k).

November 26, 2003 Sadly for Dilbert, in-house counsel provides no relief. Here, the company lawyer, a recurring character, emphasizes the protracted nature of legal proceedings:

August 29, 2008

13 Respectively, 3.6-1[1](a), (b), (c), (d), and (i).

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One of the characteristics of the cultural lawyer archetype is their tendency to distort the truth. This is one of the possibilities implied below in the August 28, 2008 Dilbert strip, where the writing will be so deliberately "impenetrable" that it will anger and disgust its readers.

August 28, 2008

This casual distortion of reality is addressed in both strips below, literally, in the Calvin and Hobbes strip, as well as both literally and legally in the Dilbert strip.

September 17, 1992

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June 23, 2009 In the first strip, if Calvin was representing a client, he would be in flagrant violation of rule 5.1-2(f)-(h), which concerns the deliberate misstatement and assertion of facts or evidence the lawyer knows to be false. In the second, there is a thin line between zealously advocating a client's desires and standing up to their request where the request is impossible, or at least illegal. The Dilbert strip does not continue, but one would imagine that rule 3.2-2[3] (Honesty and Candour) requires a "firm and animated" discussion about the impossibility being sought, the physics of extra-dimensionality aside. The adversarial system is likely in large part to blame for the way the cultural history of the law manifests in the popular imagination. I am reminded of US Senators who, despite being widely reviled across the American electorate, nevertheless retain their seats year after year. This phenomenon is the result of both national and local state polling: in being ineffectual, or even harmful to the interests of others, the given senator procures benefits for their home state, be it jobs or favourable laws and regulations. As a result, no individual US Senator rates anywhere near their collectively low approval rating, i.e.: everyone prefers their own Senator, and reviles the others. This is not dissimilar to lawyers in an adversarial system, where victory for one side comes as the cost of loss for the other. In professional circles, openly and energetically adverse campaigns seldom occur even between hostile parties. Legal proceedings are a rare exception and are likely a shock to the first-time litigant. In such circumstances, it is easy to see how the business end of zealous advocacy might closely resemble relentless antagonism. While codes of professional conduct are creatures of the system (and therefore unlikely to be the source of revolutionary change), comprehensive codes and

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effective enforcement of their provisions do provide the opportunity for a cultural shift. Nobody wants to be the only person playing by the rules, but it is also rare that anybody wants to be the only person acting out. Consistent enforcement raises the possibility of gathering the sufficient critical mass such that the odd man out is the truant and not the saint.14 This change would initially only be felt at a local level, between other lawyers and their clients, and then in one’s respective field. Eventually, however, it would trickle over into relatives at Thanksgiving dinner15 and perhaps even down into the funny papers. In theory, if we keep it up, our good behaviour could outlast the stereotype.

14 Believe it or not, as recently as 1986, there was mass outcry over mandatory seatbelts as tyrannical government overreach. See, e.g.: Michael Lasalandra, “MASSACHUSETTS VOTERS MAY AX SEAT-BELT LAW”, South Florida Sun Sentinel (1986), online: https://www.sun-sentinel.com/news/fl-xpm-1986-06-29-8602080321-story.html. 15 E.g.: “Lawyers—liars—am I right?” Cue the self-satisfied braying and inability to read a room.