Column

Lawyers Behaving ‘Badly’: Should Lawyers Be Breaking the Rules?

Author: Tiffany Thomas Guest Blogger

The Faculty of Law at the University of Ottawa is known for its expertise in social justice and in my experience many of my colleagues decided to attend this institution for this reason.[1] When I applied and accepted my offer of admission to the University of Ottawa I did so because I hoped that my professors would provide me with the knowledge and skills that I will need to practice law within a system of laws that is not “always a system of justice”.[2] I have not been disappointed in this respect. However as my time as a student in the faculty of law is coming to an end I have come to understand, as Adam Dodek and Alice Woolley explain, that lawyers who have a “particular vision of justice” often encounter a particular set of challenges.[3] As future lawyers who are determined to challenge rules or laws that we believe unfairly disadvantage our clients, should we challenge such rules and laws by breaking them?

In 1977 Donald Jabour wrote a letter to the Law Society of British Columbia explaining that he intended to place an advertisement in a local paper, an act he knew was contrary to the rules of professional conduct.[4] Jabour also made it known to the Law Society that he disagreed with its prohibition on advertising legal services. In January of 1978, Jabour indeed advertised the opening of his law firm, which he stated could provide legal services at an affordable price. Jabour was subsequently suspended from the practice of law for 6 months.[5] Many of my colleagues declared that Jabour was acting in an ethical manner when he broke the rules because he did so for an important cause: improving access to justice. Lawyers such as Jabour, argued my colleagues, are simply participating in civil disobedience. Its undeniable that participating in civil disobedience as a lawyer is a bold strategy which could allow lawyers to break unjust rules in an attempt to change such rules for the benefit of their clients or the general public.

However, an ethical lawyer, according to Law Societies, is someone who follows the rules. Given law societies broad declaration that following the rules is a necessary requirement to be considered an ethical lawyer, it is clear that they would not agree that a lawyer can break a rule or law if the lawyer is doing so to advance a cause that they or their clients personally believe in. However, breaking rules and law is a popular strategy employed by many individuals and movements seeking to create social change. For example, Viola Desmond, who will soon grace the ten- dollar bill brought attention to and created social change by breaking rules and laws that were created for the purposes of racial discrimination.[6] Lawyers, however, are expected to uphold rules of professional conduct, an expectation that the general public is not burdened with. Lawyer’s need to be cognizant of how their behavior may break these rules. For example, a lawyer should consider whether breaking rules or laws could infringe upon law societies rules requiring lawyers to behave in a way that upholds the public’s faith in the administration of justice.

Furthermore, when lawyers are called to the bar, they are asked to take an oath that includes the following statement, “I shall protect and defend the rights and interests of such persons as may employ me”.[7] The ethical dilemma faced by young lawyers who are interested in changing unjust rules, laws or even entire systems is whether in doing so they are best protecting their client’s interest. Ultimately in Donald Jabour’s case, while trying to improve access to justice, a valiant cause, he was suspended from practicing law for six months. When a lawyer is suspended for not following the rules of professional conduct or potentially disbarred for breaking a law, they can no longer advocate for their clients interests.

As a student at law who will hopefully be practicing law in the near future, I cannot foresee myself participating in law or rule breaking even when I believe that the rules or laws disproportionately affect my clients and need to be changed. Engaging in civil disobedience as a lawyer puts your opportunity to continue to advocate for your client’s rights and interests at risk. Instead, like the path breakers before us, individuals like Delos Rogest Davis and Clara Brett Martin, young lawyers will need to employ creative strategies that exhibit resistance to unjust rules and laws.[8] Ultimately, young lawyers who are seeking to change rules that they believe unfairly impact their clients or even themselves should do what lawyers do best: advocate.

 

I am currently in my third year of the common law program at the University of Ottawa. I have no plans for the future. I am hopeful that I will contribute to change for underprivileged communities.

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[1] https://commonlaw.uottawa.ca/en/about/why-uottawa-common-law

[2] Adam Dodek & Alice Woolley, eds, In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (Vancouver: UBC Press, 2016) at 8.

[3] Ibid.

[4] https://www.canlii.org/en/ca/scc/doc/1982/1982canlii29/1982canlii29.html

[5] Ibid.

[6] http://www.thecanadianencyclopedia.ca/en/article/viola-desmond/, Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 1999).

[7] http://www.lsuc.on.ca/CalltoBar.

[8] http://www.thecanadianencyclopedia.ca/en/article/delos-davis/, http://www.thecanadianencyclopedia.ca/en/article/clara-brett-martin/.

 

Comments

  1. The Rule of Law is a fairness-seeking (though not perfect) and stability-seeking framework. It is dangerous to undermine that framework (by breaking rules) instrumentally to achieve narrower objectives, even when many agree those other objectives are themselves morally worthy.

    The Rule of Law may not be ideal, and it might never be, but alternatives (such as dictatorship or oligarchy) are often worse, and its local content is amenable to improvement. Rule-abiding lawyers and paralegals can advocate for improvement “from within”, as well as by enhancing the agency of entities at the periphery or even wholly outside the system.

  2. I was very surprised to read that lawyers in Upper Canada swear first “to protect and defend the rights and interests of such persons as may employ” them. I do see that later on in the oath, they also vow to “safeguard the rights and freedoms of all persons.”

    I don’t like it. In British Columbia, the oath is different. The difference is subtle. Our oath is this: “I will diligently, faithfully and to the best of my ability execute the offices of barrister and solicitor; that I will not promote suits upon frivolous pretences; that I will not pervert the law to favour or prejudice anyone; but in all things conduct myself truly and with integrity; and that I will uphold the rule of law and the rights and freedoms of all persons according to the laws of Canada and of the province of British Columbia.”

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