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UBC Theses and Dissertations

Legal ethics and illegal migrants : the bounds of ethical conduct for lawyers helping 'illegals' become 'legal' Stynes, Sean Patrick Cleary

Abstract

This thesis investigates the bounds of ethical conduct for immigration lawyers helping illegal migrants regularize their status in Canada. The field of legal ethics and the phenomenon of illegal migration are independently fascinating areas of inquiry, yet both topics remain largely understudied in Canadian legal scholarship. This paper aims to provide some ethical guidance for immigration lawyers representing illegal migrants in Canada and to offer new insights into how we understand and conceptualize both legal ethics and illegal migration. The thesis focuses around a hypothetical situation involving a family of 'failed refugees' facing imminent deportation but awaiting a decision on an outstanding permanent residence application based on humanitarian and compassionate grounds. This thesis asks whether it is ethical for a lawyer - even in the most sympathetic of cases - to advise clients not to appear for their removal. This is the kind of question prominent legal ethics scholar, David Luban so eloquently captures with the question, 'can the good lawyer be a bad person?' Tackling this central question requires an understanding of the phenomenon of illegal migration as well as the field of legal ethics. In terms of illegal migration, this thesis seeks to deconstruct the concept of illegal migration and offer new insights into the so called 'problem' in Canada. This thesis reports the results of a series of Access to Information requests filed by the author offering great insight into the extent and kinds of illegal migration in Canada. With respect to legal ethics, this thesis questions their very nature of the discipline. Are legal ethics to be understood as legal, as in the 'law of lawyers' with rules and codes backed by punishment? Or should legal ethics be understood as ethics, requiring an 'all things considered' approach free from threat of coercive state punishment. I argue that the answer to the central question of the thesis, depends on how we understand legal ethics. This thesis proposes an approach to legal ethics that is halfway between law and ethics, consistent with William Simon's 'contextual view' of legal ethics, where the bounds of ethical conduct are defined by the underlying merits of the case and allow for 'ethical discretion in lawyering'.

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