The Most Dangerous Client? Rob Ford and Legal Ethics
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.
Adam, I think you have created a red flag checklist for a “dangerous client”marked by the INABILITY to:
1. tell the truth with full disclosure to counsel
2. demonstrate a strong moral sense of right and wrong
3. accept responsibility for one’s behavior
4. act predictably and rationally
5. remain calm and act without aggression
6. avoid temptations including media frenzy
7. maintain a realistic perspective about your flaws
8. listen to the advice of others to form a team
It seems that the only way to avoid a “dangerous client” is to avoid the red flags or write an article about your concerns for slaw.ca. Thanks, Adam.
Q: What happens when a “dangerous client” teams up with a “dangerous lawyer”? Red becomes green and the victim struggles just to survive this “extremely dangerous tag team”.
Very good article. Such potential clients highlight the independence of the bar, and the importance of knowing when not to accept client instructions. For me it also raises the question of lawyers whose bad or dangerous clients are organizations. Perhaps even more challenging in a corporate or government environment, where saying no and possibly even withdrawing, may lead to the loss of employment, as well as the client.
Adam’s column seems to say two quite different things. The first is that “A lawyer cannot simply do what his or her client demands them to do”. This is an important truth. Lawyers are not mere “mouth-pieces”. Lawyers have duties to the adminstration of justice and to the rule of law; not just duties to their clients.
The second is that the lawyer should not act unless the lawyer is able to trust the client. Adam’s writes of “dangerous clients”. As a matter of “risk management”, this may well be right. Where the lawyer trusts the client and vice versa then the client is likely better served and the lawyer is at reduced risk of attack from the client or from allegations of engaging in professional misconduct.
But it is wrong to confuse risk management with legal ethics. It is not only “trustworthy” people who need and are entitled to proper legal assistance. There are no doubt many accused persons who will not/cannot trust their lawyers. Are they properly denied legal assistance? Of course not. Prospectively, should only trustworthy people be entitled to legal advice so that they know the law and are able to make informed choices? Of course not.
As an analytic matter, I think that Adam’s approach risks confusing the point of fiduciary law. Fiduciary law is designed to enure that the beneficiary is able to trust the fiduciary to act in the interests of the beneficiary. This is the point of the duty of loyalty. But the beneficiary owes no such duty to the fiduciary. This makes perfect sense as the fiduciary is given control, to a greater or lesser extent, over the affairs of the beneficiary entrusted to the fiduciary. Thus, the law is designed to ensure that the fiduciary acts properly i.e. can be trusted. But the reverse is not true. Our codes of professional conduct reflect this fiduciary law.
Adam’s “risk management” argument makes perfect sense as a matter of the lawyer’s self-interest. Assessing whether the lawyer can effectively assist the prospective client is a legitimate part of the lawyer’s decision making. Some clients may well be too dangerous. But this is a matter of self-interest not ethics.
But I fear that Adam’s approach is dangerous from a systemic perspective. Accepting entirely that the lawyer cannot act as a “mouth-piece”, it is wrong to say that only trustworthy people should have lawyers. To the contrary, untrustworthy people probably need lawyers the most.
So by all means take care with dangerous clients; not to be a mere “mouth-piece” and to act ethically in their service. But let’s not allow our self-interest in avoiding difficult situations affect who in society can obtain proper legal representation. And, in any event, there can be real professional satisfaction in well and properly serving the difficult, even dangerous, client.
Adam says “The client must trust the lawyer but the lawyer must also trust the client”. The first part of the statement is true. The second is not.
I think the most dangerous client is the lawyer who fails to rise to the occasion due to either incompetence, laziness or shear stupidity.
To many are unaware that a lawyer only goes where, he/she is instructed to go.
Like in the story of Ruth & Naome
Without proper instruction who knows where the lawyer may go.
Way to many cases (51+%) go beyond discovery due to 1of 2 things.
Greed or incompetence.
Where does ethics play here?
Law is War, Isn’t it?
While there are fundamental concepts at play in every lawyer-client relationship, the context of the retainer, the client’s specific objectives and monetary realities will impact the role that the lawyer is to play in each specific client relationship.
With respect to the R. v Faulkner decision and others referenced in it, I take issue with the view that for the most part lawyers are to do what they think is think is in the best interests of their clients, as if clients are passive creatures incapable of making informed decisions when presented with reasoned, easy to understand options with associated implications. That isn’t a relationship or a role that most modern clients are comfortable with.
In my view, the critical, fundamental element of a lawyer-client relationship is the ability for the client and lawyer to work as a team, with the lawyer being the expert in the law and the client being the expert in their facts, needs and objectives. They are to work together to identify and achieve the client’s desired outcome, whether it be acquiring an asset or defending their innocence.
To me, a dangerous client is one who is unable to provide instructions and work with their lawyer to understand whether their desired outcomes are realistic or attainable based on the facts and law at hand. Similarly a dangerous lawyer is one who adopts a paternalistic approach to knowing what is best for their clients and acts without understanding their clients’ risk tolerance, objectives, context, communication and decision making expectations, etc. while racking up costs and letting time tick by.
Provided the lawyer isn’t being asked to act unethically, the client’s desired outcome may well require the lawyer to take a position they don’t agree with. As long as the client has made an informed decision based on understanding the associated options and implications, the lawyer’s role is to support the client in pursuing their objective (such as an innocent person pleading guilty to a lesser charge to get it all over with).
If the lawyer is clear that their recommendations are based on how the law applies to what the client has shared with them and the client withholds key information, for whatever reason, (e.g. in the Clinton situation), the lawyer can’t be held responsible for the outcome not meeting the client’s objectives. Practically, if the lawyer doesn’t trust that the client won’t then pursue the lawyer if an ill-advised approach results in an undesirable outcome, the lawyer may well want to reconsider acting for that client.
The biggest challenge is when clients fail to mention relevant facts or circumstances to their lawyer. Effective matter initiation and management processes with questions that take general client context and the relevant law into account help avoid those unwanted situations.