In The Lincoln Lawyer, lawyer-hero Mickey Haller learns from his father that “there is no client as scary as an innocent man”. In an interview, author Michael Connelly explained that for the lawyer defending an innocent man there can only be one acceptable outcome: Not guilty. “There can be no middle ground. No deal. No plea bargain.” According to Connelly, this places enormous pressure on the lawyer because if the lawyer fails and the client is convicted and goes to prison, the lawyer “has to live with their own guilt in knowing that an innocent man is in prison because their effort wasn’t good enough.”
If the innocent man is the scariest client for a lawyer, someone like Toronto Mayor Rob Ford may be the most dangerous client. Rob Ford has demonstrated certain qualities that should make any lawyer hesitant to take him as a client. The most critical of these are the trio of an apparent absolute refusal to listen to advice, a belief that the rules do not apply to him and a remarkable capacity for self-delusion. Together, these make for a dangerous combination.
Can a lawyer trust someone like Mayor Ford? Is Rob Ford likely to trust his lawyer? These are critical questions because the lawyer-client relationship is based on mutual trust. The Supreme Court of Canada set out the importance of this trust in articulating the lawyer as a fiduciary in R v. Neil (2002) as confirmed in Canadian National Railways v. McKercher (2013).
The client must trust the lawyer but the lawyer must also trust the client. When there is no trust between client and lawyer, it is both difficult for the lawyer to help the client and also dangerous for the lawyer.
For lawyers, the most dangerous clients are those who refuse to trust their lawyers and hold back information from their lawyer or worse yet, manipulates their lawyer. The first client is dangerous for both the lawyer and client because the lawyer cannot help the client. The second client is dangerous because the lawyer can get into real trouble if they do not treat what their client tells them with a healthy degree of scepticism.
The lawyer’s ethical duty of confidentiality and solicitor-client privilege exist in order to promote trust between client and lawyer. They are intended to foster full and frank communication between client and lawyer; to allow the client to “bare one’s soul” to their lawyer. There are some clients for whom the promise of the protection of confidentiality does not suffice for them to fully trust their lawyer. They stubbornly refuse to completely confide in their lawyer. Lacking full and accurate information, the lawyer is unable to properly advise the client, with potentially disastrous results for the client.
The best example is lawyer Robert Bennett’s representation of President Bill Clinton when he lied under oath about having sexual relations with Monica Lewinsky. There is no way that a lawyer of Bennett’s experience and standing would have allowed his client to lie under oath. We all know the ramifications of this act for Clinton: he was charged with perjury, impeached by the House of Representatives and tried in the Senate, escaping removal by tarring his presidency and his legacy. And by the way Clinton got disbarred. As a lawyer, Clinton surely knew about the protection of confidentiality and attorney-client privilege (his lawyer Robert Bennett has never revealed their confidential communications on this subject). The only plausible explanation for Clinton’s conduct is that he had failed to confide in his lawyers and indeed in Clinton’s memoirs he admitted that he hadn’t told his lawyers about his relationship with Monica Lewinsky. Clinton deluded himself, failed to confide in his lawyer and as a result Clinton’s lawyer could not properly advise him.
Some clients are dangerous because they want to embark on a foolhardy course of action. A lawyer must sometimes be able to tell their client “no”. American lawyer-statesman Elihu Root is reported to have said that “[A]bout half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” This is a hard thing to do for any lawyer. It is particularly demanding when the client is powerful. It is a real challenge when the lawyer is junior or inexperienced. Paul Bernardo’s lawyer Ken Murray found himself facing obstruction of justice charges because he did not sufficiently question his client’s instructions regarding the infamous videotapes depicting Bernardo and Karla Homolka’s vicious crimes.
It is often said that a lawyer takes instructions from his client but the client cannot dictate a specific course of action to their lawyer. Justice Michael Code of the Ontario Superior Court of Justice in R. v. Faulkner, 2013 ONSC 2373, provides a comprehensive overview of the lawyer’s duties and independence. He reminds us that “there are only a small number of fundamental decisions where the client “calls the shots”. Otherwise, counsel is responsible for the conduct of the defence and counsel must exercise independent judgment as to what is in the client’s best interests and as to whether any particular course of conduct is consistent with counsel’s duties as an officer of the court.”
Justice Rosenberg of the Ontario Court of Appeal made this clear in a 1998 case where he stated:
There is an erroneous premise underlying the appellant’s submissions in this case – that defence counsel is but a mouthpiece for his client. His argument must be that counsel is bound to make submissions no matter how foolish or ill-advised or contrary to established legal principle and doctrine, provided that is what the client desires.
Back to R. v. Faulkner, where Justice Code quotes the famous barrister G. Arthur Martin Q.C. who explained in 1970 that:
The defence counsel is not the alter ego of the client. The function of defence counsel is to provide professional assistance and advice. He must, accordingly, exercise his professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.
A lawyer cannot simply do what his or her client demands them to do. This constitutes an abdication of independence which is the core of the lawyer’s role.
At various times, Mayor Ford has revealed an alarming capacity for lack of candour and an inability to listen to the advice of those closest to him. There is no indication that these sorts of behaviours would be any different with a lawyer. This makes Ford a very dangerous client.
I would not take Rob Ford on as a client. But then again, he is unlikely to ask me.