Legal Ethics In The Funny Papers: Calvin And Hobbes And .

Eugene ChaoDecember 1, 2020Legal Ethics in the Funny Papers:Calvin and Hobbes and Dilbert and the Code of Professional ConductThe Bar Admission Course of Newfoundland and Labrador requires articlingstudents to write a short paper on legal ethics and the Code of ProfessionalConduct using a recently completed file as an illustrative foil. The author1 (anarticling student) felt this sounded suspiciously close to yet another memo, andwhile it is widely known that articling students love nothing more than yetanother memo, the author wished to save the space in his heart for all hisoutstanding actual memos so that he might love them all the better. Consequently,the author elected to pursue an alternative assignment, which ultimately becamethe following question:What do Calvin and Hobbes2 and Dilbert3 have to say about legal ethics andthe cultural history of the law?This paper was the result.4Calvin is an intelligent, highly imaginative six-year-old who is very much intodoing things at his own pace or otherwise not at all. This predisposition oftenputs Calvin at odds with rules and imposed structure, manifesting as rebellionsagainst, inter alia, school, organized sports, his long-suffering parents, and theirbabysitter. Calvin’s opposition to authority provides many opportunities forCalvin and his stuffed tiger, Hobbes, to question the nature and sensibility ofestablished norms, and forms the basis of many of the philosophical musingswhich have given Calvin and Hobbes its unusually long life and celebratedposition among comic strips.Eugene Chao, Osgoode Hall Law School, JD 2020, presently completing articles at theDepartment 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 andLabrador, for his gracious assistance in the editing process and for the clever title, which is hisinvention entirely.1Page 1 of 15

While the practice of law might seem distantly removed from Calvin's world ofearly bedtimes and school cafeterias, the role lawyers play in establishing,interpreting, and maintaining rules and norms make us squarely a part of theadult world frequently under Calvin's microscope. When considered togetherwith 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 goodlawyering and legal practice.6A recurring theme in Calvin and Hobbes is the relationship between language andthe truth. Calvin recognizes the slipperiness of even ostensibly straightforwardwords used between native speakers and the role of context and subjective intentin conveying meaning. For example:June 12, 1987Law Society of Newfoundland & Labrador, Code of Professional Conduct (adopted by Bencherseffective January 1, 2013 as amended).6 While the strips do not break new ground in moral philosophy, they are less depressing thanthe records of the Law Society Disciplinary Panel and better illustrated, too.5Page 2 of 15

Calvin also repeatedly wrestles with the inadequacy of language ascribingobjective moral or ethical values (e.g.: good, bad, evil) where internal desires andexternal motivations collide. For Calvin, these concerns typically becomepreoccupying in the weeks leading up to Christmas.December 18-19, 1987.As lawyers, a great deal of our work centres around language, whether in oralargument or informational, communicative, or persuasive written pieces. Thewords we use—and by extension, our choice in selecting them, reflects on ourknowledge, 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 practiceof law.It then naturally follows that our ability to use language clearly and incisively isof paramount importance to success in the profession. This bears directly on rule3.1-2, Competence, specifically in relation to subsection (c)(ii)-(iv) which are,Though the author notes that it certainly doesn't feel that way in light of the pound of fleshpresently owed to TD Bank.7Page 3 of 15

respectively: analysis, application of the law to the relevant facts, and writingand 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 theirown competence. Closely related, [9] of the same section cautions that:[9]A lawyer should be wary of providing unreasonable or overconfident assurances to the client, especially when the lawyer’semployment 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 andcandid and must inform the client of all information known to the lawyer thatmay affect the interests of the client in the matter." Commentary [2] clarifies thisto mean "a competent opinion based on a sufficient knowledge of the relevantfacts open and undisguised and must clearly disclose what the lawyer honestlythinks about the merits and probable results."Together, these provisions warn against bluster. It provides false comfort to theclient to have a lawyer make unsupportable claims about their ability or theclient's legal position. The client will have paid for sweet nothings and thelawyer 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 anopinion is based, particularly when the circumstances do not justify anexhaustive investigation and the resultant expense to the client. However,unless the client instructs otherwise, the lawyer should investigate thematter in sufficient detail to be able to express an opinion rather than merecomments with many qualifications Page 4 of 15

Calvin, however, has discovered the power of both ambiguous language andsensationalized hyperbole, deploying both for his amusement to the torment ofhis mother and Susie Derkins, a girl at school:February 1, 1989December 20, 1989Page 5 of 15

In addition to the powers of both omission and exaggeration, Calvindemonstrates a precocious grasp of the power of deliberately obtuse, mealymouthed language to distort the truth,8 or even manufacture an entirely falsereality.May 13, 1993September 1, 19929Beyond illustrating the relationship between truth and language, Calvin andHobbes provides a great deal more commentary on other sections applicable tothe Code.Rule 3.5-1-2 provides for the Preservation of Clients' Property, which includes, inaddition to money and negotiables, all other papers and documentation, as wellas personal property, with rule 3.5-2(a) prescribing the appropriate standard ofOne is reminded of old English judgments.Though it has no substantive bearing on the strip, Calvin’s contortions of language areunimpressive to his father for reasons that Calvin may not fully appreciate: Calvin's father is apatent attorney.89Page 6 of 15

care to be that of a "careful and prudent owner" for like property. Calvin has theopportunity to experience the importance of this principle when he borrows hisfather's binoculars.May 16-17, 1988Page 7 of 15

Calvin’s attempts at problem-solving is also illustrative. Note that his firstinstinct is to deceive the owner as to the state of his property, contrary to thedirections of rule 3.2-2, above. Reviewing decisions of the Law Society, the choiceto double down often appears to separate letters of caution from suspensions anddisbarment. The Code notes in commentary [15] to rule 3.1-2 (Competence) thatno 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 differentmatters” may be viewed much less charitably.May 20, 1988Page 8 of 15

Rule 5.1-5 concerns Courtesy, requiring a lawyer to be "courteous and civil andact in good faith to the tribunal and all persons with whom the lawyer hasdealings." The commentary warns that, even if a lawyer escapes charges ofcontempt, 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 sufferconsequences. This might well be the case for a lawyer.10 A little kindness goes along way.August 8, 1992Calvin and Hobbes was written with a deliberate effort to present the strip fromCalvin'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 areimportant only as Calvin’s mom and dad."11 As a result, while ethics and evenlegal ethics feature prominently in some strips, the issue is typically approachedfrom the perspective of a six-year-old who counts Christmas presents anddetention among his primary concerns.12See rule 2.1-1[1]-[2]: " If integrity is lacking, the lawyer’s usefulness to the client andreputation within the profession will be destroyed, regardless of how competent the lawyermay be. [2] Public confidence in the administration of justice and in the legal profession may beeroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflectfavourably on the legal profession, inspire the confidence, respect and trust of clients and of thecommunity, and avoid even the appearance of impropriety."11 "Calvin's Parents", obbes/.12 In that context, Calvin and Hobbes has some excellent strips on the freedom of speech andcompelled labour (homework and school presentations), the source of parental authority and10Page 9 of 15

The below strip comes about as close as Calvin and Hobbes ever does to directlyaddressing lawyers and legal practice. While the joke is obviously aboutfrivolous 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 frivolouslawsuit.The frivolous and predatory lawsuit falls well outside the pale of decentbehaviour. It consequently violates several provisions of the Codesimultaneously, being contrary not only to the duties of integrity (rule 2.1-1) andhonesty and candour (rule 3.2-2), but also to the lawyer’s duty as an advocate inrule 5.1-1, which requires that a lawyer act “within the limits of the law”, andmore specifically in commentary [1] to do so “without illegality and in a waythat 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 inthemselves” if they are “clearly motivated by malice and brought solely for thepurpose of injuring the other party”.June 27, 1987In comparison, Dilbert, a comic by Scott Adams, is much more on the nose withregard 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 anoffice.Returning to the relationship between truth and language, Dilbert oftenaddresses 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.Page 10 of 15