1. Dr. Margaret Ann Wilkinson, called to the Ontario Bar in 1980, is a Professor, jointly appointed to the Faculty of Law and the Faculty of Information and Media Studies at the University of Western Ontario. Christa Walker first participated in this research project as a law student at the University of Western Ontario but is now called to the Bar in Ontario and, having practiced in the Toronto and Ottawa offices of Blakes, is now at the Perth office of the Australian law firm of Allens Arthur Robinson. Dr. Peter Mercer is a Professor in the Faculty of Law at the University of Western Ontario and its former Dean as well as former Vice President Administration and Corporate Counsel for the University of Western Ontario. The authors would like to thank Renata Schneider, Marcella Smit, Jonathan Mesiano-Crookston and Anna Milot for their assistance, while law students, in the preparation of this article. The authors would also like to acknowledge the funding for this paper provided by the Social Sciences and Humanities Research Council of Canada. The researchers are also deeply grateful to the 200 Ontario lawyers who participated in the pre-test and main study for this research by being interviewed and then reviewing transcripts of their interviews. The researchers are also grateful to the staff of the Law Society of Upper Canada who supported and assisted with this project and the other Ontario lawyers who assisted in the preliminary research design for the pre-test of the study.

2. See, e.g., Baker, W.G., “Structure of the Workplace or, Should we Continue to Knock the Corners off the Square Pegs or can we Change the Shape of the Holes?” (1995) 33:4 Alta. L. Rev. 821 Google Scholar; Brockman, J., “Bias in the Legal Profession: Perceptions and Experiences” (1992) 30:3 Alta. L. Rev. 747 Google Scholar; Brockman, J., “The Use of Self-Regulation to Curb Discrimination and Social Harassment in the Legal Profession” (1997) 35:2 Osgoode Hall L. J. 209 Google Scholar [Brockman, “The Use of Self-Regulation to Curb Discrimination and Social Harassment in the Legal Profession”]; Kay, F.M. & Hagan, J., “Changing Opportunities for Partnership for Men and Women Lawyers During the Transformation of the Modern Law Firm” (1994) 32 Osgoode Hall L. J. 413.Google Scholar

3. See, e.g., Brockman, Joan, Gender in the Legal Profession: Fitting or Breaking the Mould (Vancouver: University of British Columbia Press, 2001)Google Scholar; Brockman, J., “Gender Bias in the Legal Profession: A Survey of Members of the Law Society of British Columbia” (1992) 17 Queen’s L.J. 91 Google Scholar [Brockman, “Gender Bias in the Legal Profession”]; Brockman, J., “Resistance by the Club to the Feminization of the Legal Profession” (1992) 7(2) C.J.L.S. 47 CrossRefGoogle Scholar; Law Society of British Columbia, Law Society of British Columbia Gender Bias Committee, Gender Equality in the Legal System: A Report of the Law Society of British Columbia Gender Bias Committee (Vancouver: Law Society of British Columbia, 1992)Google Scholar; Law Society of British Columbia, Women in the Legal Profession Subcommittee, Women in the Legal Profession: A Report of the Women in the Legal Profession Subcommittee (Vancouver: Law Society of British Columbia, 1991)Google Scholar; McKenzie Leiper, J., “It was Like Wow!: The Experience of Women Lawyers in a Profession Marked by Linear Careers” (1997) 9 (1) C.J.W.L. 115 Google Scholar; Morello, Karen Berger, The Woman Lawyer in America: 1638 to the Present: The Invisible Bar (New York: Random House, 1986)Google Scholar.

4. See, e.g., Brockman, “Gender Bias in the Legal Profession”, supra note 3; Brockman, J., “Leaving the Practice of Law: The Wherefores and the Whys” (1994) 32:1 Alta. L. Rev. 116 Google Scholar; Canadian Bar Association, ouchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar Association, 1993)Google Scholar; Kay, F.M., Dautovich, N. & Marlor, C., Barriers and Opportunities Within Law: Women in a Changing legal Profession, A Longitudinal Survey of Ontario Lawyers 1990-1996, A Report to the Law Society of Upper Canada (Toronto: Law Society of Upper Canada 1996)Google Scholar; McKenzie Leiper, J., “Women Lawyers and their Working Arrangements: Time Crunch, Stress and Career Paths” (1998) 3:2 C.J.L.S. 117 [McKenzie Leiper, “Women Lawyers and their Working Arrangements”]CrossRefGoogle Scholar; O’Donovan-Polten, Sheelagh, The Scales of Success, Constructions of Life-Career Success of Eminent Men and Women Lawyers (Toronto: University of Toronto Press, 2001)CrossRefGoogle Scholar; Wydrzynski, Christopher J., Selecting and Educating Lawyers for a Changing Society: A Comparative Study of Admissions, Law School Environments and Careers of Law Graduates, Research Report (Windsor, ON: University of Windsor, 2000).Google Scholar

5. Mercer, Peter, Wilkinson, Margaret Ann & Strong, Terra, “The Practice of Ethical Precepts: Dissecting Decision-Making by Lawyers” (1996) 9:1 C.J.L.J. 141 [Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”] at 155.Google Scholar

6. Various elements of preliminary analysis from the database have been published as Wilkinson, Margaret Ann, Mercer, Peter & Strong, Terra, “Mentor, Mercenary or Melding: An Empirical Inquiry Into the Role of the Lawyer” (1996) 28:2 Loy. U. Chicago L.J. 373 [Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”]Google Scholar; Wilkinson, Margaret Ann, Walker, Christa & Mercer, Peter, “Do Codes of Ethics Actually Shape Legal Practice?” (2000) 45 McGill L.J. 645 [Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”]Google Scholar and Wilkinson, Margaret Ann, “Information Sources Used by Lawyers in Problem-Solving: an Empirical Exploration” (2001) 23 Library & Information Science Research 257 [Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”]CrossRefGoogle Scholar. A response from the philosophical perspective to the finding presented in Wilkinson, , Walker, & Mercer, , “Do Codes of Ethics Actually Shape Legal Practice?” has been published by Milde, Michael in 2002 Google Scholar: see Milde, Michael, “Legal Ethics: Why Aristotle Might Be Helpful” (2002) 33:1 J. Soc. Philo. 45 [Milde, “Legal Ethics”]CrossRefGoogle Scholar.

7. Peter Mercer and Margaret Ann Wilkinson.

8. Law Society of Upper Canada Professional Conduct Handbook 2nd ed. (Toronto: Law Society of Upper Canada 1998) [Handbook]Google ScholarPubMed. The Handbook contains the Rules of Professional Conduct which are binding upon all member of the Law Society of Upper Canada, to which lawyers in Ontario must belong in order to practice in the province. This was the edition in force at the time these lawyers were interviewed.

9. A practice advisory service operated by the Law Society of Upper Canada. For further discussion of the role of this service in the context of this research project, see Wilkinson “Information Sources Used by Lawyers in Problem-Solving”, supra note 6.

10. The first four research questions were identified as a set in Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”, supra note 5 at 142.

11. This fifth question appears in Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”, ibid at 150.

12. See Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 and Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6.

13. While 16% of the respondents mentioned the Handbook in their interviews, only eleven lawyers mentioned it in connection with their problems (7%). See Wilkinson, walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 655.

14. See Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6.

15. Ibid

16. A total of 25 lawyers (16%) mentioned the Handbook during their interviews, although in fourteen cases it was not in direct connection with the problems under consideration in the interview. See Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 656.

17. Of the eleven lawyers who used the Handbook in relation to their problems, only seven classified their problems as involving ethics—and only six (40%) as problems primarily focused on ethical decision-making. Of these six, only three (2% of the twenty-five who mentioned the Handbook at all in their interviews) found the Handbook actually resolved their problems.

18. This research found that the only transcripts that revealed evidence of ethical decision-making were three (of the eleven actually mentioning the Handbook in connection with solving their problems)—and one of these (Lawyer #139) was a problem which did not strictly require ethical deliberation: see Wilkinson, walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 664. In the other eight cases, the Handbook appeared to obviate the necessity of ethical decision-making because the lawyers found the answers to resolve their problems in the Handbook: see Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 657. On the other hand, of the eleven lawyers who mentioned the Handbook in direct connection with their problems, including both problems with an ethical component and those without, six (just under 4%) found the Handbook actually resolved their problem—and two more found it helpful though not determinative (for a total of 5% of the 154 lawyers whose problem-solving was studied). Three (2%) actually commented that they had found the Handbook unhelpful in resolving their problems: see Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 656.

19. See Milde, “Legal Ethics”, supra note 6.

20. The full pretest which tested both the method ultimately used for the study and the commonly used stated vignette approach, is fully reported in Mercer, Wilkinson & strong, “The Practice of Ethical Precepts”, supra note 5.

21. As more fully discussed in Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 265-68, the topics discussed by the lawyers in the study fell into two categories: problems related to the administration of law practice (client instructions, errors and omissions, conflict of interest, communications, relations with other lawyers, representing the clients, and the direct administration of the law practice (such as getting partners to agree on office renovations)) and problems relating to substantive areas of law (administrative law, immigration, corporate commercial practice, civil and criminal litigation, family law, real estate and wills and trusts). The proportion of problems raised in the study in these two categories closely paralleled the incidence of these categories of problems reported by the Lawyers Practice Advisory Service of the Law Society of Upper Canada in the same period. This then provides a clear answer to a question raised in the earlier preliminary report of this research project published in this journal (see Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”, supra note 5 at 148, n. 31): the problems raised by the lawyers interviewed for this study are representative of those encountered in practice.

22. See Wilkinson, Mercer & Strong,> “Mentor, Mercenary, or Melding”, supra note 6; this preliminary study was based on analysis of only the transcripts of the lawyers interviewed in this study from outside the Metropolitan area.

23. Ibid. at 410-11.

24. Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”, supra note 5 at 143.

25. Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”, supra note 5 at 143.

26. Ibid.

27. Seventeen lawyers, or 32%, of the fifty-two interviews analysed from the three centers studied outside the Metropolitan center: see Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6 at 394-95 and Figure 9 at 417.

28. See the history of the Code of Professional Conduct of the Law Society of Upper Canada which was created in tandem with this research project through the efforts of then law student Darryl Robinson (see Robinson, Darryl, “Ethical Evolution: The Development of the Professional Conduct Handbook of the Law Society of Upper Canada” (1995) 29 L.Soc.Gaz. 162 [Robinson, “Ethical Evolution”])Google Scholar.

29. See analysis of the roles in Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6 at 375-87.

30. See Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6, particularly Figure 11 at 418, where five lawyers of seventeen left the cases under discussion rather than change their roles from counselor to hired gun and accept the client’s instructions even though these were not instructions in line with the counseling given and where one lawyer experienced internal conflict and stress although accepting the hired gun role.

31. The original research question, fully reproduced above, listed age and the law school alma mater of the lawyer as factors that might affect the lawyer’s actions. However, as previously reported (Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 272, n. 16), although data on these questions was gathered, the lawyers interviewed proved to be an almost completely homogenous group in terms of their educational backgrounds and the categorizations of experience did not prove to be sufficiently discriminatory to be analytically useful. Also, as previously reported (Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 654, n. 50), the distributions of ages of both private practitioners and corporate counsel was relatively evenly split around age 40.

32. Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 270.

33. Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 655, n. 53: a chi-square test performed to see whether there was any significant difference between the genders in a lawyer’s use of the Handbook in this research showed no significant difference.

34. Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 268, 269. This variable was only meaningful with respect to the locations of the practices of the private practitioners. As mentioned below, all the corporate counsel were drawn from Toronto because that is where 88% of the population of corporate counsel studied practiced.

35. Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 655, n. 53.

36. Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 271.

37. Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 264. Since the code is only one external source, it is not surprising that the use of the Handbook did not reflect the difference in degree of preference for external sources by size of firm that was evidence in the larger study of all information sources. See Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 655, n. 53; see also Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 271.

38. Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 264.

39. As mentioned above, only eleven—or 7%—of the lawyers studied mentioned the Handbook in connection with the problem-solving under discussion.

40. As discussed in the earlier report of this research in this journal (Mercer, Wilkinson & Strong, “The Practice of Ethical Precepts”, supra note 5 at 150) 88% of corporate counsel in the Ontario Bar Association Corporate Counsel Section practiced in the Metropolitan center and therefore all of the interviews of corporate counsel in this study are drawn from there. The corporate counsel were not sampled according to the sizes of their practices, as the private practitioners were, but they were found to work in all the sizes of offices corresponding to the firm sizes of the private practitioners studied: 3 were the sole practitioners in their companies, 15 were practicing with between 2 and 8 other lawyers in the company, 2 worked in settings of between 9 and 30 practitioners, and 2 were in offices of more than 30 lawyers (information on the sizes of the offices in which they were working was not gathered in 3 cases).

41. The comparison between lawyers in private practice and corporate counsel in terms of their preferences for either informal or formal sources of information in problem-solving or for internal or external sources could not be made because of the small cell sizes that would have been involved in the chi square analyses: see Wilkinson, “Information Sources Used by Lawyers in Problem-Solving”, supra note 6 at 268-69. Similarly, the cell sizes involved in the analyses of references to the Handbook were too small to permit chi square analyses: see Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 656 (Table #1).

42. Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6.

43. For a complete discussion of the project and methodology, see Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5.

44. Defined as firms of over thirty practitioners, firms of between nine and thirty lawyers, and firms of between two and eight lawyers, respectively. See Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5 at 150. As mentioned elsewhere, below, although not sampled with this variable as part of the sampling design, the corporate counsel studied represented the full spectrum of offices across these same categories.

45. The four centers represented one of the largest metropolitan centres, with a population in excess of 500,000, a large urban centre with a population of between 100,000 and 499,999, a larger medium urban centre closer to a population of 99,999 in a spectrum of between 10,000 and 99,999, and, finally, a smaller medium urban centre, closer to the 1,000 end of the population spectrum of between 1,000 and 99,999. As demonstrated in our pre-test, reported earlier, practitioners’ concerns around confidentiality made it impractical to include practitioners in centres of fewer than 1,000 in the study. See Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5 at 149.

46. Chi square tests performed for age and gender indicated that the corporate counsel involved in the study did not differ significantly from their colleagues in private practice in the study in terms of demographics. See Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6 at 654.

47. Numbers courtesy of the Law Society of Upper Canada.

48. See Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5 and Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6.

49. Analysis from these data have been previously reported from several different perspectives. See Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5; Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6; Wilkinson, “Information Sources Used by Lawyers in Problem-Solving: an Empirical Exploration”, supra note 6; Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6.

50. This number includes the seventeen practitioners from outside the Metropolitan center whose interviews were analyzed in the earlier study mentioned above: Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6. In the present article, the complete findings, including the transcripts of lawyers located in the metropolitan area and the transcripts of corporate counsel lawyers, will be discussed.

51. In all earlier reports of this study, the identity of the large metropolitan centre involved in the study was not made explicit: Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5; Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6; Wilkinson, “Information Sources Used by Lawyers in Problem-Solving: an Empirical Exploration”, supra note 6; Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6. However, in this final report of the project, that large metropolitan centre will be identified explicitly as Toronto. In the context of the structure of the legal profession in Ontario, the fact that the study includes practitioners from Toronto—and compares them with practitioners practicing outside Toronto—is important. The Law Society of Upper Canada which is the governing body regulating lawyers in Ontario, is composed of forty Benchers duly elected by those entitled to practice law in the province. However, twenty of those elected representatives must be elected from those practicing inside Toronto and the remaining twenty are elected from those practicing in every other part of the province. See Law Society Act, R.S.O. 1990, c. L.8.

52. When all the lawyers in the study were compared, the chi square test showed no significant difference between the male and female lawyers (p = .4350, df = 1, chi square = .6094). When the corporate counsel were removed and the male and female private practitioners were compared, the chi square test showed no significant difference between the genders (p = .1873, df = 1, chi square = 1.7385).

53. The small numbers of practitioners in several of the cells in Table C meant that chi square analyses could not be performed for relevant comparisons. In the absence of these tests, it is not possible to report whether the observations being reported do or do not reveal statistically significant differences.

54. See, e.g., Philips, Jim, “Beyond the Law: Lawyers and Business in Canada 1830 to 1930” in Wilton, Carol, ed., Essays in the History of Canadian Law, vol. 4 (Toronto: Butterworths, 1990)Google Scholar; Allegretti, Joseph, “Have Briefcase Will Travel: An Essay on the Lawyer as Hired Gun” (1990-91) 24 Creighton L. Rev. 747 Google Scholar; Schneyer, Ted, “Some Sympathy for the Hired Gun” (1991) 41 J. Legal Educ. 11 Google Scholar.

55. See Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6.

56. Kohlberg, Lawrence, The Philosophy of Moral Development: Moral Stages and the Idea of Justice (San Francisco, CA: Harper & Row, 1981)Google Scholar. According to Kohlberg’s theory, a person develops morality by becoming more autonomous and less dependent on the judgement of others, until he can analyze problems in an abstract way based on universal principles of justice.

57. Gilligan, Carol, In A Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982)Google Scholar [Gilligan, In A Different Voice]. Gilligan’s book is based on three different studies. The College Student Study explored identity and moral development in the early adult years by relating the view of self and thinking about morality to experiences of moral conflict and the making of life choices. The subjects were 25 students, selected at random from a group who had chosen as sophomores to take a course on moral and political choice. The students were interviewed as seniors in college and then five years following graduation.

The Abortion Decision Study considered the relation between experience and thought and the role of conflict in development. The subjects were 29 women, ranging in age from 15-33, diverse in ethnic background and social class, some single, others married, and a few were the mothers of preschool children. Each subject was interviewed during the first trimester of a confirmed pregnancy at a time when they were considering abortion. These women were referred to abortion clinics and pregnancy counseling services. No effort was made to select a representative sample of the clinic.

In both of these studies subjects were asked how they defined moral problems and what experiences they construed as moral conflicts in their lives rather than being given specific problems for them to resolve. The hypotheses generated by these studies concerning different modes of self were further explored and refined through the Rights and Responsibilities Study.

This study involved a sample of male and females matched for age, intelligence, education, occupation, and social class at nine points across the life cycle: 6-9 years old, 11 years old, 15 years old, 19 years old, 22 years old, 25-27 years old, 35 years old, 46 years old, and 60 years old. Data was collected on conceptions of self and morality, experiences of moral conflict and choice, and judgements of hypothetical dilemmas.

58. Since women have become a specific study group, women have been divided on whether or not gender differences actually exist. One strand of feminism argues that the alleged gender differences between women and men are simply the result of stereotypes, and asserts that there are no real differences between men and women. The other strand of feminism accepts and promotes the idea that men and women are actually different and focuses on demonstrating that the unique characteristics of women can make positive contributions to society.

59. See Nails, Debra, “Social-Scientific Sexism: Gilligan’s Mismeasure of Man” (1983) 50:3 Social Research 643 Google Scholar. Nails outlines several problems with Gilligan’s study. First, she argues that the presentation of the data is not representative. She compares Gilligan’s account of the transcripts to the accounts of her colleagues and to the entire transcript, and argues that Gilligan chose the portions of the transcript that best illustrate the type of morality into which Gilligan felt the subject should fit. According to Nails, when the entire transcript is considered it is much less obvious that the subjects fit into one category or the other. Second, Nails attacks the interview process itself. She points out that there was no control group, no consistent test and no rigorous scoring procedure. Also, she points out the data collected was likely influenced by the interviewer’s expectations and knowledge. Finally, Nails finds fault with the assumptions underlying the study. According to Gilligan, the responses given by the subjects indicate moral maturity. However, Nails argues that it is impossible to know whether moral maturity or cognitive ability is being measured.

60. See Puka, Bill “The Liberation of Caring: A Different Voice for Carol Gilligan’s Different Voice” (1990) 5:1 Hypatia 58 CrossRefGoogle Scholar. Puka argues that the care perspective is not so much a moral perspective as a set of coping mechanisms for dealing with sexist op Pression. As well, See MacKinnon, Catherine A., “Feminist Discourse, Moral Values, and the Law—A Conversation” (1985) 34 Buff. L. Rev. 11 Google Scholar. MacKinnon argues that the differences found by Gilligan are not a result of gender differences, but are a result of the fact that women have been prevented from all but nurturing methods of behaviour in society.

61. Stacey, Judith, “On Resistance Ambivalence, and Feminist Theory: A Response to Carol Gilligan” (1990) 29:4 Mich. Q. Rev. 537 Google Scholar.

62. See Taylor, Jill M., Gilligan, Carol & Sullivan, Amy M., Between a Voice and Silence: Women and Girls, Race and Relationship (Cambridge, MA: Harvard University Press, 1995)Google Scholar; Brown, Lyn M. & Gilligan, Carol, Meeting at the Crossroads: Women’s Psychology and Girls Development (Cambridge, MA: Harvard University Press, 1992)CrossRefGoogle Scholar; Gilligan, Carol, Lyons, Nona P. & Hanmer, Trudy J., eds., Making Connections: The Relational Worlds of Adolescent Girls at Emma Willard School (Cambridge, MA: Harvard University Press, 1990)Google Scholar. Recently, Gilligan has shifted her attention from girls to adolescent boys. She has lectured on boys’ emotional problems and heads a research project on boys. See the June 21, 1998 edition of Chicagoland Final Edition, by Kate Zernike (of the Boston Globe) “Feminism has Created Progress, But Man, oh man, Look what else, Woman’s News” 1.

63. In 1997, Gilligan was appointed Gender Studies Chair at Harvard University; See Arenson, Karen W., “Harvard Chair will Focus a Spotlight on Gender” The New York Times (10 September 1997) A19 Google Scholar. In addition, Gilligan was the 1997 Recipient of the Heinz Award in the Human Condition. As well, in 1996 TIME magazine named her one of the most influential Americans; see Clark, Jim, “TIME 25” TIME Magazine 147:25 (June 1996) 66 Google Scholar.

64. See Gilligan, Carol, “Reply by Carol Gilligan” (1985) 11 Signs: Journal of Women in Culture and Society 324 CrossRefGoogle Scholar [Gilligan, “Reply by Carol Gilligan”].

65. Nunner-Winkler, G., “Two moralities? A critical discussion of an ethic of care and responsibility versus an ethic of fights and justice” in Kurtines, W. & Gerwirtz, , eds., Morality, Moral Behaviour, and Moral Development (New York: John Wiley & Sons, 1984) 348 Google Scholar.

66. See Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6.

67. For further discussion of this issue, see Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, ibid This article concludes that literature presents two conflicting roles of the lawyer: the hired gun or the counselor. However, at 409, the article reveals that the law in Ontario seems to recognize the two roles as being “part of a continuum from counselor to hired gun through which the lawyer may shift in the course of serving a client”.

68. For further discussion of this issue, see Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6. As stated at 379: “… the lawyer’s exclusive role is to act as an agent for the client. If a client asks for legal advice, the lawyer is clearly obligated to give such advice to the best of her knowledge and ability. After accepting the person as a client, however, the lawyer merely becomes an actor of that client.” See also Kagen, Robert A. & Rosen, Robert Eli, “On the Social Significance of Large Law Firm Practice” (1985) 37 Stan. L. Rev. 399 CrossRefGoogle Scholar.

69. Shaughnessy, Joan M., “Gilligan’s Travels” (1988) 7:1 Law and Inequality 1 Google Scholar [Shaughnessy “Gilligan’s Travels”]. According to Shaughnessy, “the distortions created by women’s status as outsiders in a male profession have made it almost impossible for women to realize and ex Press their own sense of what it means to practice law” (19). Shaughnessy does suggest that as greater numbers of women enter the profession, these distortions will diminish. However, because of the nature of law itself, there will be limits on women’s abilities to ex Press themselves in that role. (20) Women’s inclination for caregiving may be frustrated by the coercive nature of law, leading them either to feel alienated or to “learn to downplay their inclinations for caring activities”. (23) Shaughnessy concludes that the ethic of care “rejects the possibility of moral governance by universal norms” (26-27). In other words, law and the ethics of care are not fully compatible.

70. Lev-Farell, Alexandra, Legal Decision-Making: Does Gender Make a Difference? (1991)Google Scholar [unpublished paper]. Ms. Lev is currently a Partner with Berkow, Cohen LLP

71. Karst, Kenneth, “Woman’s Constitution” [1984] Duke L.J. 447 CrossRefGoogle Scholar; Sherry, Suzanna, “Civic Virtue and the Feminine Voice in Constitutional Adjudication” (1986) 72 Va. L. Rev. 543 CrossRefGoogle Scholar, and Menkel-Meadow, Carrie, “Excluded Voices: New Voices in the Legal Profession Making New Voices in Law” (1987) 42 U. Miami L. Rev. 29 Google Scholar.

72. Shaughnessy, “Gilligan’s Travels”, supra note 69 at 9-10 (footnote omitted).

73. For recent papers discussing issues of women in the practice of law, see Brockman, “The Use of Self-Regulation to Curb Discrimination and Social Harassment in the Legal Profession”, supra note 2; McKenzie Leiper, “Women Lawyers and Their Working Arrangements”, supra note 4.

74. Jack, Rand & Jack, Dana Crowley, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar [Jack, Moral Vision].

75. Ibid at 188-90.

76. Jack, Moral Vision, supra note 74 at 71.

77. Ibid. at 72-85.

78. Crimm, Nina J., “A Study: Law School Students Moral Perspectives in the Context of Advocacy and Decision-Making Roles” (1994) 29:1 New Eng. L. Rev. 1 Google Scholar [Crimm, “A Study”].

79. The results of this study, however, may not be that meaningful. Crimm notes that there are several reasons why no differences were found: the examination context might have influenced students’ responses in that they gave answers which they thought the professor was looking for; they might not have been able to relate to the victim because it was a hypothetical situation; or the process of legal education might have affected the students in that law students are taught to analyse legal issues based on rules and policies, not feelings.

80. Hotel, Carla & Brockman, Joan, “Legal Ethics in the Practice of Family Law: Playing Chess While Mountain Climbing” (1997) 16 J. Bus. Ethics 809 CrossRefGoogle Scholar [Hotel & Brockman, “Legal Ethics in the Practice of Family Law”].

81. Ibid. at 814. Note that Positions 3 and 4 are associated with the care perspective, while Positions 1 and 2 are associated with the rights perspective.

82. Jack, Moral Vision, supra note 74.

83. Because the rights model postulated by Gilligan is characterized by rights, duties and appropriate rules, if her model holds for the practice of law, the researchers would have liked to have had definitive evidence to either support or refute the hypothesis that the male lawyers are more likely to cite the Code of Professional Conduct as a source of guidance in resolving problems than would women lawyers. However, the chi-square analyses performed seeking generalizability of the findings in that regard were not significant. See Wilkinson, Walker & Mercer, “Do Codes of Ethics Actually Shape Legal Practice?”, supra note 6.

84. The second, to be introduced shortly, is the size of centre in which the lawyers are practicing.

85. “Ever since companies started recruiting in-house counsel, the [legal] profession has split into the two solitudes.” Marzena Czarnecka, “Two Solitudes” Lexpert (April 2002) 66.

86. In the late nineteenth century, North American firms were changing their focus from litigation to obtaining corporate clients. The Toronto law firm of McCarthy, Osler, Hoskin, and Creelman, which existed under that name from 1882 to 1902, and is the ancestor of the modern firms of McCarthy, Tetrault and Osler, Hoskin, and Harcourt, is an example of a Canadian firm that underwent this transformation. Due to the boom in the Canadian economy at the turn of the century, firms with corporate clients did well. For example, in the early 1890s, the gross annual income of McCarthy, Osler, Hoskin, and Creelman exceeded $100,000. In 1891-2, the firm earned $117,002.17. Over half of this amount came from non-litigation files. Even when D’Alton McCarthy and B.B. Osler—both prominent and well-respected litigators—died, their firm survived because it had created a solid client base. For more information on this firm, see Cole, Curtis, “McCarthy, Osler, Hoskin, and Creelman, 1882 to 1902” in Wilton, Carol, ed., Beyond the Law: Lawyers and Business in Canada 1830 to 1930 (Toronto: The Osgoode Society, 1990) 149.Google Scholar

The firm belonging to E.E.A. DuVernet in Toronto is another example of a firm that owes its success in part to its shift from a traditional general practice to a specialization in corporate and commercial law. DuVernet “saw that the influence of status and wealth was shifting from the leading counsel of the time to a new élite of solicitors within the profession.” John D. Honsberger, “E. E. A. DuVernet, KC: Lawyer, Capitalist 1866 to 1915” in Carol Wilton, ed., ibid. 167 at 168.

87. Stock, Richard G. & Brazier, Lori D., “Corporate Counsel and the Corridors of Power” Lexpert (April 2002) 64 Google Scholar [Stock & Brazier, “Corporate Counsel and the Corridors of Power”] at 83.

88. According to Rosen, in the 1920s, inside counsel were known as “kept counsel”. In the 1930s, they were referred to as “house counsel”. In 1945, inside counsel began to claim the title of “corporate counsel”: see Rosen, Robert Eli, “The Inside Counsel Movement Professional Judgment & Organizational Representation” [1989] Ind. L.J. 479 [Rosen, “Inside Counsel Movement”] at 479Google Scholar.

89. According to Liggio, Carl D., in “The Changing Role of Corporate Counsel” (1997) 46 Emory L.J. 1201, in the 1940s to the mid. 1970s, corporate counsel experienced “a serious decline in their stature and acceptance [because of] the emergence of the business school as a training ground and desirable discipline for senior management” (at 1201)Google Scholar.

90. Ibid. at 1202: “by the mid-1970s, [the senior corporate counsel’s] compensation had fallen to about thirty percent of the CEO’s income [from sixty-five percent in the 1920s and 30s].”

91. Ibid.: “Generally, it was a one-way street between retained counsel and the corporate community—from the outside legal community into corporate legal departments. Rarely did a corporate lawyer leave to go to work in a private firm, at least not a major firm. Of course, there were incidents of this type of migration, but they were rare. In fact, there was a general perception in the legal community—perpetuated and expanded upon by retained counsel—that those who could not succeed at a firm were then “put” with the firm’s clients in an effort to ensure a constant source of business. As a result of both the decline in compensation and the changing role, the overall quality of employed counsel deteriorated. The outside bar treated the employed corporate legal community with disdain.”

92. Stock & Brazier, “Corporate Counsel and the Corridors of Power”, supra note 87 at 64-68, 70, 72, 74, 76, 78, 80-83.

93. Stock & Brazier, “Corporate Counsel and the Corridors of Power”, supra note 87 at 64-65. Note that this is actually a return to the role described above for corporate counsel pre-World War I.

94. According to Gunz, Sally, in The New Corporate Counsel (Toronto: Carswell, 1991)Google Scholar, there are three major roles that corporate counsel fulfills within the corporation: (1) performing legal tasks; (2) monitoring and managing the relationship between the corporation and whichever external law firms are being used; and (3) anticipating and preventing legal difficulties encountered by the corporation. In addition, according to Gunz, corporate counsel may also be involved in decision-making processes, depending on the size of the corporation. This picture is echoes by Rosen who describes three elements of the role (1) inside counsel engage in preventive law for their corporate clients; (2) for most legal matters, the inside counsel handles the matter internally; and (3) for matters outside the scope of their expertise, outside private counsel is brought in. Rosen, “Inside Counsel Movement”, supra note 88. According to Rosen, outside counsel is retained on the recommendation of inside counsel who have become managers of corporate legal functions.

95. See Painter, Richard W., “The Moral Interdependence of Corporate Lawyers and their Clients” (1994) 67 S. Cal. L. Rev. 507 Google Scholar.

96. The Inside Counsel Movement, fostered by the American Corporate Counsel Association, is a political movement within the profession that lobbies for increased professional status for inside counsel. For further information on the Movement: see Rosen, “Inside Counsel Movement”, supra note 88.

97. Rosen equates professionalism with ethical behavior: “The virtue of lawyers subject to intra-firm processes is not based on professional interdependence. If they are ethical, their virtue lies in their exercising professional judgement to direct corporate powers.” Rosen, “Inside Counsel Movement”, ibid. at 553.

98. Rosen, “Inside Counsel Movement”, ibid. at 525. According to Rosen, the Inside Counsel Movement lobbies for increased status and power for corporate counsel because of the broad tasks that corporate lawyers are expected to perform. Those of the Movement consider corporate lawyers to be a new breed of lawyers who are expected to manage outside counsel and practice preventive law.

99. No small urban centres were included because in the pretest the researchers found that lawyers in small towns were quite councerned that they might be identified with their interview despite the extensive precautions taken to ensure confidentiality. This concern was greater in the anecdote approach, the approach adopted for the major study. It was felt that the design of the main study should recognize and respect this concern, particularly given that from the pretest there appeared to be no reason to expect that small town practitioners varied from medium-sized centre, small-firm practitioners on ethical questions. For full sampling details, see Mercer, Wilkinson & Strong, “Practice of Ethical Precepts”, supra note 5.

100. This confirms the findings of the preliminary analysis of the lawyers in private practice outside the Metropolitan area. See Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6. The results reported in that study are here reported in the “Outside Toronto” column of Table D.

101. This Figure represents the same data as is reported in Figure 11 of the preliminary study reported in Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, ibid. at 418, although the diagram has been drawn slightly differently in order to show direct comparison in this article with the findings regarding the corporate counsel and lawyers in private practice within the Metropolitan area, Toronto. Specifically, although no lawyers in the smaller centres reported this, a branch has been added to indicate the possibility that the lawyer substitutes her or his own judgement for that of the client.

102. Lawyer F (corresponding with the identification in Wilkinson, Mercer & Strong, “Mentor, Mercenary, or Melding”, supra note 6).

103. Shown on the right hand branch of the first branching in Figures 1, 2 and 4.

104. The elements of row 5 of Table D are shown on the right hand branch of the second branching in Figures 1, 2 and 4.

105. And, correspondingly, the left hand branch of the third branching of Figures 1, 2 and 4 (the 3rd branching appears toward the middle of the right hand side of each of these figures).

106. Lawyer No. 118.

107. This is illustrated in the right hand branch of the fourth decision branching in Figure 4: compare with the private practitioners depicted in Figures 1 and 2.

108. Toward the very end of the interview with Lawyer 129, for example, the Interviewer gave a prompt which might have led to such a discussion but instead led to a different, very interesting exchange about the identity of the corporate client:

In one other case, the lawyer raised the question indirectly, at the tail end of the interview, when discussing his current role as opposed to a previously held position:

109. As is evident from the following transcript the threat to withdraw from a file is not made lightly by counsel in private practice and is made in full knowledge that while it might not mean dis missal as is perhaps a possibility in the case of the corporate counsel, it can have direct financial consequences for the firm and, indirectly, for the future of the lawyer involved:

110. This change in the lawyers’ roles is illustrated in Figures 1 through 5 by the diagonal reaching up from the lower right hand side of each figure, beginning at the left hand branch of the 4th decision juncture and ending back at the upper left of each figure where the “Hired Gun Role embraced” is labeled.

111. The lawyers in this position are shown in Figures 1 to 5 on the left branch of the 2nd branch, “Conflict with Client?” then moving in a downward diagonal across to the left hand side of each figure, flowing into the number shown for “Client’s view of the matter prevails”.

112. These two sets of lawyers are shown on the right and left branches, respectively, of the first branch in the lower left of each of Figures 1 to 5.

113. It may be noted that although none of these lawyers indicated any residual conflict or stress over the outcome of these cases during the interviews, these are all cases raised by these lawyers as recent problems in their practice which they wished to describe when asked by the interviewers for this research to choose a significant recent problem in their practices on which to base the interview. Thus, although there was no reported stress or conflict involved in these outcomes, developing the solutions to these problems had been involved enough to flag them to the participants as worthy of discussion in this research. Lawyer No.118, for example, who has been quoted above, commented as follows:

Lawyer F, quoted above, after describing the counseling role in a custody case, commented as follows:

114. See Table D 13th row and the right hand branch of the last branching on the lower left hand side of Figures 1 to 5.

115. See left hand side of Figure 5 “Client’s view of the matter prevails.”

116. See top value in Figure 5, labeled “Client arrives.”

117. See left hand side of Figure 4 “Client’s view of the matter prevails.”

118. See right hand side of Figure 4 at third branching and fourth branching respectively.

119. See left hand side of Figure 2 “Client’s view of the matter prevails.”

120. See right hand side of Figure 2 at third branching and fourth branching respectively.

121. See left hand side of Figure 1 “Client’s view of the matter prevails.”

122. See right hand side of Figure 1 at third branching and fourth branching respectively.

123. Lawyer No.129

124. Lawyer No.86

125. See again Table D 13th row.

126. See again toward the lower right side of Figure 5.

127. See again Figure 4, right side.

128. See again top of Figure 4.

129. See again Figure 3, right side.

130. This issue was the largest single common thread found by the researchers in the 154 transcripts.

131. However, it must be noted that there was a split in this regard between private practitioners in Toronto, who only withdrew from cases where there was conflict with the client in 20% of cases, whereas in the smaller centres, conflict with the client led the private practitioners to withdraw in 42% of cases.

132. Indeed, it will be recalled that in fact the corporate counsel were from the same large city, so perhaps this is a strong validation of the anecdotal evidence that practice in smaller centres is less stressful—with only 6% of practitioners from the smaller centres ultimately giving evidence of internal stress or conflict.

133. Whereas analyses in this research of the sources of information used by lawyers in problem solving and specifically the use of the code of conduct by lawyers demonstrated that differences between private practitioners depending upon the size of firm in which they practiced were not significant.

134. As discussed above, Jack, Moral Vision, supra note 74 and Brockman, “The Use of Self-Regulation to Curb Discrimination and Social Harassment in the Legal Profession”, supra note 2 were studies based upon hypotheticals that suggested differences would be found whereas Crimm, “A Study”, supra note 78 had found no differences.

135. See Robinson, “Ethical Evolution”, supra note 28.

136. See Shaughnessy, “Gilligan’s Travels”, supra note 69 and Gilligan, “Reply by Carol Gilligan”, supra note 64.

137. See Putman, Rosemarie, Feminist Thought: A More Comprehensive Introduction, 2nd ed. (Boulder, CO: Westview Press, 1998).Google Scholar

138. See Conley, Frances K. & Wear, Delese, Privilege in the Medical Academy: A Feminist Examines Gender, Race and Power (New York: Teachers College, Columbia|University, 1997)Google Scholar; Conley, Frances K., Walking Out on the Boys (New York: Farrar, Strauss, and Giroux, 1998).Google ScholarPubMed

139. See Harding, Sandra, The Science Question in Feminism (Ithaca, NY: Cornell University Press, 1986) at 21.Google Scholar

140. See Shaughnessy, “Gilligan’s Travels”, supra note 69 at 9.

141. See Wydrzynski, C.J., Chartrand, L., Cormier, M., Eansor, D., Hildebrandt, K. O’Brien, H.L. and Blonde, D.J., Selecting and Educating Lawyers for a Changing Society: A Comparative Study of Admissions, Law School Environments and Careers of Law Graduates [Report to Funding Agencies] (n.p., March 2000)Google Scholar. See also the subsequent publication from the report: Chartrand, Larry N., Blonde, Dolores J., Cormier, Michael, Hildebrandt, Kai, Wydrzynski, Christopher & Czilli, Edward J., “Law Students, Law Schools, and their Graduates,” (2001) 20 Windsor Yearbook of Access to Justice 211 Google Scholar. The study examined five law schools (University of Windsor, University of Western Ontario, Université de Montreal, Dalhousie University and University of Alberta) roughly during the period 1992-1995, surveying students and alumni. This large study focused on variation between schools in their admissions policies and the effects of the changing composition of law students (in terms of such factors as age, gender and race) on attitudes toward such matters as legal education, careers and law practice. The study focused on the effects of increased multiculturalism in the legal profession as being at least as important as the effects of the increased numbers of women in the profession.

142. As opposed to the previous studies canvassed above in relation to both ethics and gender in the legal profession which relied upon hypothetical situations in their research methodologies. On gender alone, see, e.g., the Rights and Responsibilities Study in Gilligan, In A Different Voice, supra note 57. On legal ethics and gender, see, e.g., Crimm, “A Study”, supra note 78 and Hotel & Brockman, “Legal Ethics in the Practice of Family Law”, supra note 80.