Chic Critique: Dressing Up Professional Criticism

by Erin Walkinshaw, guest blogger

Sophisticated, stylish and elegant. These qualities are highly regarded in the fashion industry and embody something or someone who is chic. However, these qualities are not exclusive to the world of fashion. Professional criticism that is sophisticated, stylish and elegant should be tolerated and even encouraged in the legal profession, paving the way for lawyers to provide their colleagues with chic critique.

Sophisticated: In the fashion industry, being sophisticated is about having worldly knowledge and experience of fashion, styles and trends. In a broader sense however, sophistication is simply about having sufficient knowledge and experience to make an informed remark or comment. It is important that there is a level of sophistication behind a lawyer’s critique of his or her colleague.

In Law Society of British Columbia v Laarakker,[1] Vernon, BC lawyer Gerry Laarakker’s criticism of an Ontario lawyer was sophisticated in that it was grounded in knowledge. He knew that the Ontario lawyer was trying to misuse the law to gain money from unsuspecting parents on behalf of a corporation. It was not a frivolous accusation or circumstance where there is discrepancy about the merits of a legal claim. It was and continues to be a well-established principle in law that parents are generally not responsible for the torts of their children. Therefore, Laarakker’s criticism was sophisticated since Laarakker was aware of the intent of the letter and knew the behaviour was underhanded. Thus, a sophisticated criticism is an informed one.

Stylish: What’s stylish in fashion is constructed by the general consensus of society at the time, much in the same way that certain types of criticism are acceptable within societal standards. Thus, stylish criticism is simply that which conforms to societal standards of what is acceptable. Stylish criticism is that which is constructive and meant to improve the reputation and services of the legal profession.

In Laarakker, it was acceptable for Laarakker to criticize the Ontario lawyer’s conduct because it appears his intention was not to maliciously tarnish the reputation of the lawyer, but to warn unsuspecting parents and to condemn the lawyer for questionable ethical conduct. Malicious intent to damage a colleague’s reputation is negative criticism that serves no purpose other than to damage a reputation, whereas the latter is positive criticism that is necessary to improve the quality of legal services and generate discussions amongst law societies and the legal community. In Laarakker, I believe that the general consensus amongst society would be that the Ontario lawyer’s conduct deserved criticism.

I agree that with Alice Woolley’s “Does Civility Matter” article that professional criticism is an important component to the justice system. She notes that “hard-hitting and unvarnished critiques are essential to working towards the justice system we should have, and to ensuring that lawyers play the role they need to play within that system.”[2] Woolley criticizes Canadian law societies for including civility in their professional conduct rules because its effect is to sanction professional criticism.

This was illustrated in the Laarakker case, and the earlier case of DCB v Zellers. In the latter, although Zellers was penalized for demanding money from the parent of a shoplifter, the lawyer who sent the demand letter was not disciplined for his actions.[3] Fifteen years later in Laarakker, not only was the Ontario lawyer who sent the demand letter not disciplined, but the law society actually sanctioned the lawyer who criticized the misconduct. Without professional criticism, and especially in light of the fact that law societies don’t appear to be sanctioning lawyers for these demand letters, this behaviour will continue. Public professional criticism may be the best way to deter these individuals from sending demand letters and this form of criticism should generally not be sanctioned by law societies. Thus, stylish criticism is that which serves a positive purpose and is not motivated by malice. It is acceptable criticism based on societal standards.

Elegant: Elegance is often about being tasteful and classy and refers to the manner in which someone conducts themselves. Accordingly, criticism that is elegant is not about whether the criticism was justified in the circumstance; it is about whether the criticism was made in an appropriate manner. The criticism must be delivered in a manner that does not negatively affect the reputation of the legal profession.

This is where, in my opinion, Laarakker’s conduct became unprofessional. Although the criticism was sophisticated and stylish, it was not elegant. Words in the Internet post and letter, such as “sleazy operator” and “scam” are not well-articulated words and may reflect negatively on the reputation of the profession as a whole. This is especially true on a public forum such as an Internet posting. In my opinion, a private letter to an individual expressing your opinion is just that, private. I don’t take issue with the letter. However, the posting on the Internet was not professionally worded. Anytime a lawyer communicates on a public forum, their tone and words need to be professional and tasteful, even when they are critiquing.

Had Laarakker used more professional words or more neutral language, a public forum would have been an appropriate avenue to express his criticism. It is appropriate because the public should be informed about unethical conduct from a lawyer who is meant to serve the public. Law societies have failed to stop behaviour such as demand letters and these letters continue to fool unsuspecting parents who are unaware that there is no legal merit to these letters. Therefore, it is necessary that lawyers be able to critique their colleagues in a public forum to bring awareness to these sorts of issues and put pressure on law societies to take positive step to address such issues. However, public critiques need to be communicated in an elegant manner in order to maintain the integrity of the legal profession.

Professional criticism is necessary and can play a positive role in improving the justice system, but it needs to be articulated in a sophisticated, stylish and elegant way. Chic critique facilitates the exchange of opinions, generates discussions and ultimately allows for civil criticism. Thus, law societies do not need to stifle professional criticism in the legal field because of concerns over civility in the profession. Lawyers should borrow a term from the fashion industry and be free to exercise chic critique.


[1] Law Society of British Columbia v Laarakker, 2011 LSBC 29.

[2] Alice Woolley, “Does Civility Matter?” (September 1, 2009). Osgoode Hall Law Journal, Vol. 46, p. 175, 2008.

[3] DCB v Zellers, 138 DLR (4th) 309, [1996] 8 WWR 100 (Man.QB).

Erin Walkinshaw is a first year student in the Ottawa University Faculty of Law, Common Law Section.

Retweet information »

Comments

  1. I guess the disciplinary authorities have some difficulty distinguishing chic from cheek.

    Private communications don’t seem to matter. The Quebec lawyer who wrote a private letter to a judge before whom he had appeared, complaining about the judge’s behaviour, was disciplined when the judge himself sent the previously confidenital letter on to the Barreau. This process was upheld by all courts including the Supreme Court of Canada.

    I personally prefer the approach of the Ontario Court of Appeal in the Kopyto case, where the court said that judges have thicker skins than the contempt charges against the lawyer implied.