Chapter 2: Legal Professionals, Rules of Professional Conduct, and Legal Ethics

Question 1

Role of The Parties in the Canadian Justice System: The Legal Profession

Answer 1

• Lawyers are self-regulated
• Can be sued in the civil law system for incompetence, breach of their duties, or criminal prosecutions for things such as fraud

Question 2

Role of The Parties in the Canadian Justice System: The Law Society

Answer 2

• The law societies control who can become a lawyer, what admission requirements are necessary, what education is needed, and who can be removed from the profession
• Benchers, many of whom are elected lawyers. In Ontario, benchers are tasked with the governance of the law society and the regulation of the province’s lawyers and paralegals for a four-year term
• There are 14 law societies in Canada
• The Federation of Law Societies of Canada (FLSC) governs these 14 law societies and oversees Canada’s approximately 95000 lawyers and Quebec’s 3500 notaries
• FLSC assesses and certifies those who receive their law degrees internationally and wish to apply for membership in a Canadian law society

Question 3

Role of The Parties in the Canadian Justice System: The Law Society

Answer 3

• The law societies control who can become a lawyer, what admission requirements are necessary, what education is needed, and who can be removed from the profession
• Benchers, many of whom are elected lawyers. In Ontario, benchers are tasked with the governance of the law society and the regulation of the province’s lawyers and paralegals for a four-year term
• There are 14 law societies in Canada
• The Federation of Law Societies of Canada (FLSC) governs these 14 law societies and oversees Canada’s approximately 95000 lawyers and Quebec’s 3500 notaries
• FLSC assesses and certifies those who receive their law degrees internationally and wish to apply for membership in a Canadian law society

Question 4

The Role of Lawyers

Answer 4

• Lawyers are professionals who are educated and trained in the practice of law
• There are numerous types of law that one can specialize in
• How a lawyer practices can also be diversified

Question 5

The Role of Lawyers: Lawyers and Demographics

Answer 5

• The 2001 Canadian census reveals that more females than males are being called to the bar, and females comprise more of the lawyers under the age of 30
  - Among older lawyers, the ratio is almost nine males to every female
• The 1996 census showed that 94% of lawyers were white (a figure that remained fairly stable through 2001, at 93%), and that three quarters of non-white lawyers were South Asian, Black, or Chinese in origin
• The “Final Report - Retention of Women in Private Practice Working Group” by the Law Society of Upper Canada finds that women are leaving because the legal profession has not recognized the needs of women
  - Examines how women’s realities include childbirth and family responsibilities and how this affects their professional lives and contributes to the huge loss to the legal profession which is failing to retain their group of talented lawyers
• The CBA has also frequently reported that lawyers are at high risk for developing depression and committing suicide
• The CBA cities Robert Bircher of the Lawyers Assistance Program of British Columbia, who points out that the factors that lead to depression in lawyers are “long hours, the adversarial nature of law, the focus on billable hours, increased competition for clients, the dehumanization of the practice, focusing on the business aspects of law rather than people combined with a culture of materialism, perfectionism, workaholism”
• Since drug and alcohol abuse are such big problems within the legal profession, provinces like Ontario have formed associations like the Ontario Lawyers Assistance Plan (OLAP)
  - Assist lawyers with issues of substance abuse and mental disorders
  - 24-Hour helpline for lawyers, which is staffed by volunteer lawyers who understand the pressures of the profession

Question 6

The Role of the Lawyer: Legal Aid and Pro Bono Work

Answer 6

• The legal aid system exists to allow those who could not financially afford a lawyer to nonetheless be represented
• Recently in Ontario, prominent defense lawyer Clayton Ruby wrote a scathing review of legal aid in Ontario, saying that the Attorney General and the chair of Legal Aid Ontario (LAO) should be “ashamed”
• Although the money given to police and crown attorneys increases every day, defense lawyers cannot do their work because of underfunding by LAO
• Legal aid will only be granted to someone earning less than $12 500 a year, even though the poverty line is $19 000 per year, meaning that “most poor people never get legal aid”
• Lawyers in Ontario are receiving one-sixth to one-third of what other lawyers are paid, and that they “donate dozens or hundreds of free hours to do a case with integrity”
• Many times the only way that the system functions is through lawyers donating their time
• Lawyers may also help those who cannot afford legal representation through a practice called pro bono work
• The rationale is that since lawyers have the monopoly on the business of law, they also have a responsibility to provide public service
• Legal aid for civil law matters is only available from “community legal clinics,” which are non-profit legal centres run by independent boards of directors from the community
• In Ontario, these clients receive most of their funding from LAO, which supports over 70 legal clinics across the province, including 17 specialty clinics
• Other provinces have similar walk-in clinics, many law schools have free clinics, and individuals can represent themselves in many matters
• Legal aid is practically inaccessible for most Canadians and only available for criminal law matters where the accused person’s freedom is at stake

Question 7

The Role of the Lawyer: Legal Aid and Pro Bono Work

Answer 7

• The legal aid system exists to allow those who could not financially afford a lawyer to nonetheless be represented
• Recently in Ontario, prominent defense lawyer Clayton Ruby wrote a scathing review of legal aid in Ontario, saying that the Attorney General and the chair of Legal Aid Ontario (LAO) should be “ashamed”
• Although the money given to police and crown attorneys increases every day, defense lawyers cannot do their work because of underfunding by LAO
• Legal aid will only be granted to someone earning less than $12 500 a year, even though the poverty line is $19 000 per year, meaning that “most poor people never get legal aid”
• Lawyers in Ontario are receiving one-sixth to one-third of what other lawyers are paid, and that they “donate dozens or hundreds of free hours to do a case with integrity”
• Many times the only way that the system functions is through lawyers donating their time
• Lawyers may also help those who cannot afford legal representation through a practice called pro bono work
• The rationale is that since lawyers have the monopoly on the business of law, they also have a responsibility to provide

Question 8

Rules of Professional Conduct: Relationship to the Administration of Justice

Answer 8

• Lawyers have a duty to the administration of justice in general, and the MCPC provides at s 1.01 that the 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”
• Ontario is specific in its rules about what standards a lawyer must adhere to. It says in rule 1 that:
  - A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public, and other legal practitioners honourably and with integrity
  - A lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario
  - A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions
  - The rules are intended to express to the profession and to the public the high ethical ideals of the legal profession
  - The rules are intended to specify the bases on which lawyers may be disciplined
  - Rules of professional conduct cannot address every situation, and a lawyer should observe the rules in the spirit as in the letter

Question 9

Rules of Professional Conduct: Relationship to the Administration of Justice

Answer 9

• Lawyers have a duty to the administration of justice in general, and the MCPC provides at s 1.01 that the 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”
• Ontario is specific in its rules about what standards a lawyer must adhere to. It says in rule 1 that:
  - A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public, and other legal practitioners honourably and with integrity
  - A lawyer has special responsibilities by virtue of the privileges

Question 10

Rules of Professional Conduct: Lawyers’ Responsibility to Clients - Competence

Answer 10

• The Rules of Professional Conduct across Canada refer to the competent service that is due to the client
• Maintain an acceptable degree of professional knowledge in their area of specialization
• They must adequately prepare and communicate effectively with their clients
• Courts that are evaluating whether a client had competent legal representation will look at whether the conduct fell within the range of a competent lawyer
• In Ontario, rule 2.01 provides that competent lawyers must have “skills, attributes, and values” needed to represent a client in the substance and procedure of the law, including investigation, implementation of these skills through legal research, analysis, application, writing and drafting, negotiation. alternative dispute resolution, advocacy, problem-solving, and communication
• If there is a complaint that a lawyer has not fulfilled these duties, the law society can conduct a review of the lawyer’s practice
• Rule 4.01(1) of the Ontario Rules provides that “when acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect”

Question 11

Rules of Professional Conduct: Lawyers’ Responsibility to Clients - Confidentiality

Answer 11

• Confidentiality between solicitor and client is one of the oldest types of privileges, with roots in the sixteenth century, and the promise of a lawyer “as a gentleman to keep his client’s secret”
• Section 2.03(1) of the MCPC provides tat
  - A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
  - Expressly or impliedly authorized by the client;
  - Required by law or a court to do so;
  - Required to deliver the information to the Law Society, or
  - Otherwise permitted by this rule
• A similar section is found in section 2.03(1) in Ontario, and many other provinces have an almost identical provisions
• The duty is broad and can include all conversations, identity of the client, and to day-to-day information. A lawyer may not disclose this information to anyone, and this duty is given to all clients even if there is only a brief relationship between the parties
• A breach of confidence can lead to disciplinary hearings for the lawyer, a civil law suit where the lawyer is formally sued for disclosing information, and/or formal complaint to the law society that the client had ineffective counsel
• In Ontario, rule 6.03 specifically addresses mistakes and says that a “lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights”

Question 12

Rules of Professional Conduct: Lawyers’ Responsibilities to Clients - Exceptions to Confidentiality

Answer 12

• There are some exceptions to this duty of confidentiality
• Legislation in some provinces provide that a lawyer must report sexual and physical abuse in particular circumstances, and a lawyer might be required to disclose if a crime is about to be committed
• One of the most important exceptions is where a lawyer believes that a “future harm” may occur
• In Ontario Law Society of Upper Canada in s. 2.03(3) provides that:
  - Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being, the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information that is required
• The communication may also be disclosed if the statement itself is a crime (uttering a threat, for example), but it may also be disclosed when it was made to facilitate a crime

Question 13

Rules of Professional Conduct: Lawyers’ Responsibility to Clients - Does a lawyer have to represent every client?

Answer 13

• Lawyers must be careful that taking a particular client will not breach a code of conduct, or that the lawyer would be places in a position where loyalty to a client would be compromised
• There are some clear areas where a lawyer may refuse to be retained by a client:
  - Conflict of interest. If there is a reason that the lawyer should not take on a particular client, the lawyer must not do so
  - Potential to be a witness. If there is a possibility that a lawyer might be a witness in a case where he or she is representing a client, most jurisdictions prevent that lawyer from being counsel in that case
  - Client already have a lawyer. It often arises that a client wants to switch lawyers, but until that retainer has been terminated, another lawyer cannot take on that case
  - Illegality. If the client asks the lawyer to do something illegal, the lawyer is prohibited from taking on the case. If the lawyer has already been retained and then gets a request to breach the rules of conduct, the lawyer cannot carry out those instructions. Making these types of requests might result in the complete breakdown in the relationship between the parties, and the only option may be to withdraw from representing that client
• Ontario Rules of Professional Conduct, s. 2.04(1) commentary notes that “where a lawyer is acting for a friend or family member, the lawyer may have a conflict of interest because the personal relationship may interfere with the lawyer’s duty to provide objective, disinterested professional advice to the client”
• When a lawyer does reject a client, there is a duty to provide reasonable assistance, without charge, to find another lawyer who would be a competent advocate in the particular case

Question 14

Rules of Professional Conduct: Lawyers’ Responsibility to Clients - Making Services Available

Answer 14

• Although there many situations where a lawyer is prohibited from taking on a particular client, there is also a duty to make legal services available to the public
• MCPC s 3.01(1) that “a lawyer must make legal services available to the public efficiently and conveniently and, subject to rule 3.01(2), may offer legal services to a prospective client by any means”
• Most of the codes of professional conduct also forbid discrimination on the basis of those grounds prohibited in human rights legislation

Question 15

Rules of Professional Conduct: Lawyers’ Responsibilities to Clients - Advertising

Answer 15

• Advertising was not permitted in the legal profession until the 1980s, when the rules were relaxed for “tasteful” advertising
• The MCPC s 3.03(1) provides that “an advertisement may also include a description of the lawyer’s or law firm’s proficiency or experience in an area of law. In all cases, the representation made must be accurate (that is, demonstrably true) and must not be misleading”

Question 16

Ethics in The Civil Law

Answer 16

• There are many ethical issues that may arise in the practice of the civil law
• Although there are numerous ways in which a civil law lawyer can be faced with ethical issues,one important way a lawyer may be challenged is within a corporate setting with in-house counsel
• Rule 4.01 in the Ontario Rules of Professional Conduct says the lawyer must be on guard in the following situations. Lawyers must not:
  
  • Abuse the process of the tribunal by instituting or prosecuting proceedings which, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party
    - Knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonouable
    - Endeavour or allow anyone else to endeavour, directly or indirectly, to influence the decision or action of a tribunal or any of its officials in any case or matter by any means other than open persuasion as an advocate;
    - Knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime or illegal conduct
    
    • Knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority
    • Knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,
    • Deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent
    • Dissuade a witness from giving evidence or advise a witness to be absent
    • Knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another
    • Needlessly abuse, hector, or harass a witness
    • When representing a compiainant or potential complainant, attempt to gain a benefit for the complainant by threatening the laying of a criminal charge or by offering to seek or to procure the withdrawal of a criminal charge, and
      - Needlessly inconvenience a witness

Question 17

Ethics in the Criminal Law

Answer 17

• In addition to the Rules of Professional Conduct and the obligations of all lawyers, the criminal justice system presents unique challenges
• Although the lawyer owes a duty to the client, there are also duties to the court, society, other lawyers, and to him- or herself
• Legal ethics are regularly in conflict with what society would see as morality

Question 18

Ethics in the Criminal law: How Can you Defend that Guilty Person?

Answer 18

• Many in the public see the role of the defence lawyer as using technicalities to allow guilty client to go free
• However, there are certain limitations when a client confesses a guilt to his or her lawyer, and it is one of the most trying issues in the ethics of advocacy
• The personal opinion of the criminal defence lawyer about the guilt or innocence of the client is irrelevant to the issue, and must not be expressed to the court

Question 19

Ethics in the Criminal Law: Limitations if a Client Confesses

Answer 19

• Those lawyers with a certain knowledge of the client’s guilt are limited in what defence can be used, as counsel cannot mislead the court
• The commentary to s 4.01(1) of the MCPC provides that there are limited actions a lawyer can take
• According to s 4.01(2)(m) and (o) if the MCPC, the defence lawyer may not “needlessly abuse, hector or harass a witness” or “needlessly inconvenience a witness”

Question 20

Ethics in the Criminal Law: Client Perjury

Answer 20

• Another issue facing lawyers is the difficult situation where a client gives false testimony on the witness stand, or what is known as perjury
• MCPC s 4.01(2) provides that a lawyer must not “knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct”
• In Canada, courts have found that, if a client tells you that he or she are going to commit perjury, the lawyer may withdraw from the case, refuse to call the client to the stand, disclose the perjury to the court, or another third party, refuse to use this testimony in a summary of the case, or question the accused in a passive way in order not to elicit this incorrect statement
• If the perjury has happened suddenly on the stand, there are several options open to the lawyer, but the situation must be handled delicately
• If the client will not be dissuaded from continuing to commit perjury, then the lawyer can withdraw, disclose the matter to the court or Crown (this seems to be a last resort), or continue with the questioning as if nothing is wrong and not refer to that testimony in the closing argument

Question 21

Ethics in the Criminal Law: The Client Who Maintains Innocence and Pleads Guilty

Answer 21

• A particularly difficult situation for a lawyer arises where a client maintains his or her innocence but still wishes to plead guilty
• It seems that a lawyer may enter into negotiations with the Crown even though the accused is denying guilt, but this should only occur if the client instructs his or her lawyer to do so
• Clients may wish to plead guilt because they have committed the crime, or because they have a defence but believe that it is possible that the defence will fail for one of many reasons at trial
• However, under Canadian law, a judge may not accept a guilty plea if the accused does not admit guilt in court

Question 22

Ethics in the Criminal Law: Incriminating Physical Evidence

Answer 22

• Incriminating physical evidence involves the classic situation when a lawyer comes into contact with incriminating physical evidence such as the “smoking gun” or “bloody shirt” scenario
• A lawyer cannot suppress evidence, according to the rules, but in the criminal law there is no disclosure obligation on the defence lawyer to give all material to the Crown
• The only exceptions to this rule are where the defence should disclose in reasonable time
  - An alibi, so that it can be investigated
  - A psychiatric defence should be disclosed so that the Crown can have its own mental-health expert examine the accused; and
  - All other experts should be disclosed 30 days before trial, pursuant to the Criminal Code
• However, after R v Murray, there is little doubt that a lawyer must not knowingly conceal evidence to impair the functioning of the justice system, even by temporarily removing evidence
• More agree, even in the absence of clear rules, that lawyers should deliver that evidence immediately to the police in a way that does not disclose the identity of a client

Question 23

Ethics in the Criminal Law: Termination of the Client-Lawyer Relationship in Civil and Criminal Law

Answer 23

• A lawyer may withdraw from the lawyer-client relationship if this decision will not unduly prejudice the client
• When the lawyer withdraws, he or she must give back all documentation and property to the client or the new lawyer, disclose all relevant information, account for all outstanding fees, and cooperate with the subsequent legal counsel
• In Ontario the Law Society of Upper Canada has specific rules when it comes to terminating a lawyer-client relationship
• There are also some circumstances where a lawyer must withdraw:
  - If the lawyer is fired by the client;
  - If the lawyer is asked to do something that is contrary to the lawyer’s duty to the court;
  - If the client has had “dishonourable conduct” in the proceedings or if the client has proceeded with legal matters simply to “harass or maliciously injure another”;
  - If the lawyer believes there has been dishonesty or fraud; or
  - If the lawyer is not competent in that particular legal matter
• There must be confidence and trust between the client and lawyer, and if that confidence is gone, the relationship should end
• A client cannot be forced to retain or continue working with a particular lawyer

Question 24

Ethics in the Criminal Law: Discipline

Answer 24

• Lawyers are punished under legislation by the respective law society
• Conduct unbecoming is one of the most frequent findings of the law societies
• The lawyer can go before a hearing panel to determine if he or she has violated this provision and the lawyer can face the following
  - A revocation of the lawyer’s licence;
  - An order requiring the lawyer to surrender his or her licence;
  - An order suspending the lawyer’s licence,
  - For a definite period
  - Until terms and conditions are satisfied, or
  - Both a definite term and when conditions are met
  - A fine of not more than $10 000, payable to the Law Society;
  - An order that the lawyer obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or participate in other programs to improve his or her health;
  - An order that the lawyer participate in specified programs of legal education or professional training;
  - An order restricting the areas of law that the lawyer can practice in;
  - An order restricting legal services;
  - An order that the lawyer co-operate in a review of the lawyer’s business;
  - An order requiring the lawyer to refund to a client all or a portion of the fees paid;
  - An order that the lawyer be reprimanded; or
  - Any other order that the Hearing Panel considers appropriate

Question 25

Ethics in the Criminal Law: Disbarment

Answer 25

• In addition to determining if someone should be admitted to the bar, law societies also govern misconduct by lawyers
• It is relatively rare for the Bar Association to disbar lawyers
• Most disciplinary proceedings focus on “professional misconduct” and lead to the sanctions much less severe than disbarment

Question 26

Ethics in the Criminal Law: Paralegals

Answer 26

• The Canadian Association of Paralegals defines a paralegal as
  - An individual qualified through education, training or work experience, who is employed or whose services have been retained by a legal professional, law firm, governmental agency, private or public corporation or other entity in a capacity or function which involves the performance, under the supervision of a legal professional, or substantive legal work, with may include administrative or managerial duties, requiring sufficient knowledge of legal concepts
• Often paralegal services are performed under the supervision of a lawyer
• Paralegals are distinct from law clerks and legal assistants, who have specific college education programs, and clerks and assistants usually do not appear on matters in court or before tribunals
• Outside of Ontario, paralegals are still independent and are simply not permitted to practice in certain areas of law
• In 2006, a legislation was introduced called the Access to Justice Act, SO 2006, c 21, which brought paralegals to outline their professional and ethical obligations (much like the Ruels of Conduct for lawyers)
• Paralegals must also write a paralegal licensing examination to qualify to act as a paralegal in Ontario. The exam which is three-and-a-half hours in length, contains approximately 130 multiple-choice questions, and is offered three times a year. Paralegals are also required to submit a statement of “Good Character,” as lawyer are required to do, pursuant to By-Law 4 and the Law Society Act, RSO 1990, c L-8

Question 27

Judges

Answer 27

• The judiciary is the third arm of the government, which is separate from the legislative and the executive
• The judge has the discretion to question a witness to clarify a position or to question counsel and, in the Canadian adversarial system, the judge does not take an interventionist role so as not to appear to favour one side over the other
• A judge must maintain impartiality at all times
• In a jury trial, the judge does not determine the findings of “guilty” or “not guilty”
• The judge does get to rule on the interpretation of the law, to decide what principles are given to the jury to deliberate upon, and sentencing
• The judge occupies a highly symbolic role and the courtroom in a position that allows him or her to oversee and control the proceedings
  - Chair is higher than anyone else’s
  - Separated by a barrier
  - Has a court clerk to assist him or her with the organization of documents and exhibits
• In addition, the judge has a private chamber, uses a separate entrance to the court after everyone else has already entered (and the judge’s entrance is formally announced), and everyone in the courtroom is required to rise when told to do so
• Judges may also charge anyone who shows disrespect with contempt of court
• The base salary for federal judges is approximately $260 000, and the average is similar for the Ontario Court of Justice and Superior Court of Justice judges
• In turn, judges are expected to know the law and act in a fair and impartial manner towards everyone in the courtroom including the lawyers, jurors, witnesses, and the accused
• Judges’ independence allows them to make decisions that are unpopular or that may be contrary to the interests of the government, without worrying that they will lose their job
• The highest level authority is the Supreme Court of Canada
• The Prime Minister may have assistance from the Minister of Justice and, since February 2006, nominees face three hours of questions from an all-party committee of the House of Commons
• Usually, the judges selected for this highest court are already judges from various provinces and have at least ten years of standing at the bar in their province
• The Supreme Court traditionally has nine judges - three must be from Quebec (per the Supreme Court Act), usually three are from Ontario (by convention), two are from the West, and one is from the Maritimes

Question 28

Judges: Who is Eligible to Be Appointed a Judge?

Answer 28

• To be eligible for an appointment, judicial applications must be in good standing with their law society (not disbarred or suspended) in one of the Canadian provinces or territories

Question 29

Judges: Investigation

Answer 29

• A Judicial Council is an organization that investigates judges
• The first Judicial Council was formed in Ontario in 1968, and almost all other provinces by the mid-1980s, and a Federal Council was formed in 1971
• The CJC investigates allegations of unethical because of permanent disability, and incompetence