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Lawyers Should Not Abuse Their Perceived Legal Authority in Public Debate

Professor Bruce Pardy is not a constitutional law expert. His scholarship in peer-reviewed journals is largely on environmental law. Yet, over the past several months, the Queen’s Law professor has commented in the lay media on constitutional law issues.

In one instance, on October 3, 2017, the National Post published Pardy’s opposition to the Law Society’s new Statement of Principles requirement, citing selected Charter free speech jurisprudence as his underlying support. A policy that compels lawyers to privately acknowledge equality-related obligations, Pardy argues, is compelled speech and akin to authoritarian rule.

Publicly sharing opinions in the Post is not per se problematic. At least, no problem would arise if his legal analysis were competent. Instead, Pardy fails in four ways.

First, Pardy fails to consider Doré v Barreau du Québec (2012 SCC 12), the leading case on law societies’ administrative authority to regulate free speech. Second, even if he missed Doré, he fails to even mention that Charter rights are not absolute, but tempered by the reasonable limits clause.

Third, the Statement of Principles may not even be “expression” under the Charter; it is unclear whether the Statements “attempt to convey meaning” per Irwin Toy Ltd v Québec ([1989] 1 SCR 927), when they are not necessarily shown to anyone ever.

And, fourth, Pardy forgets that every lawyer, upon their Call to the Bar of Ontario, already must swear or affirm a prescribed statement.

This irked me. Vaguely recalling required reading from law school, and twenty minutes on Google, dismantled his analysis. Such obliviousness to trite law in a public forum must not have come from a lawyer, much less a law professor, I thought. I must have misunderstood the article’s purpose.

A possible explanation: Pardy was using law words merely to garner ostensible authority with a wider, more deferential readership. No scholarly journal could publish his critique, but the National Post would.

The true problem here was not the sloppy legal analysis. If Pardy himself accepted his legal argument, he might have brought judicial review proceedings against the Law Society, as Lakehead University’s Professor Ryan Alford did. But I do not believe Pardy was concerned with substantive merits at law.

The broader, more insidious issue is lawyers gaining superficial media credibility then recklessly perverting the law to shape public opinion. Pardy is not the sole offender, just the most obvious and consistent example.

Lawyers have ethical obligations when in positions of perceived authority. I take no issue with Pardy expressing political views. We can all acknowledge that, at their core, Pardy and his ilk seek to engage with important political dialogue. However, where law and public politics intersect, engaged lawyers should — at the very least — describe the law accurately.

After all, some people might take Pardy seriously.

Comments

  1. Well put, Fred. When writing under a byline indicating that he is a professor of law, Pardy holds himself out as having particular and scholarly expertise on the topic. As lawyers know, but most lay readers of the National Post would not, the law is filled with silos, and expertise presupposes specialization. Pardy’s opinions on constitutional law are not those of an expert and one should accept them, or not, solely on the basis of their merits, not on the basis of authority. Alas, the lay reader, with no resources to assess their merits, will rely on the byline and the fiction that someone can be an expert in law, full-stop. (The fields over which Pardy ranges under his scholarly title go far beyond constitutional law, of course, into political philosophy and beyond – topics on which his writing betrays a dreadful lack of depth. This may be less of a worry on the perceived authority issue, because of his disciplinary home in a law school.)

  2. The Law Society of Ontario should have had the intellectual honesty and courage to alter the oath that every lawyer swears. Have it explicitly include the anti-racist requirement that they now demand.

    The ridiculous method of checking a box on the annual report saying you have a statement, but can keep it a secret is a complete joke and does nothing to solve an genuine issues of racism.

    Make it a check box beneath a copy of the lawyer’s oath, and every year, every lawyer, reaffirms the oath that the swore at their call to the bar.

  3. You can’t have it both ways.

    Are you a constitutional law expert who moonlights as an IP lawyer in the UK? Or would you argue that because Slaw has a smaller and more specialized audience (while being fully accessible to the public), it’s different from appearing in the National Post? Do you also make sure to critique other lawyers and law professors who make statements outside their area of expertise, such as in respect of criminal law and what they call “murder”?

    Also, am I misreading your third paragraph, or are you actually publicly alleging incompetence?

  4. Thanks for your reply, David. And pardon any typos. I’m jetlagged, having just arrived in England.

    I do not purport to be a constitutional law expert. Indeed, I received a D in my Ottawa Law course on the Charter. I, of all lawyers, should not be able to challenge a law professor’s Charter argument in so few words. Yet, I did. And I’m right. That’s how bad it was.

    Non-expert commentary is not per se objectionable. My point was merely to give full context. The lay audience is likely to defer to his perceived authority in constitutional law, despite his generalist status in constitutional law.

    I agree that a legally trained audience (like Slaw’s) is more equipped to handle non-expert comments, for two main reasons. First, they have the training to analyze the reasoning de novo. Second, their perceptions of authority are more likely to be in line with actual authority.

    On criminal law commentary, I conceded in my piece that Prof Pardy is not the only non-expert lawyer in lay media who misdescribes the law. I chose what was, in my view, the most obvious and consistent subject.

    Regarding competence, Pardy invites critique of competence when, in his last paragraph, he holds out his piece as legal argument to be relied upon before the Law Society. He missed Section 1 of the Charter. He missed the leading (SCC) case on law societies power regulating free speech. I don’t think ‘incompetence’ is a stretch.

    However, I personally don’t think he intended to be competent. I think he was using legal terminology to sound reliable to sway public opinion. That’s why I wrote my response.

  5. > I do not purport to be a constitutional law expert. Indeed, I received a D in my Ottawa Law course on the Charter. I, of all lawyers, should not be able to challenge a law professor’s Charter argument in so few words. Yet, I did. And I’m right. That’s how bad it was.

    > First, Pardy fails to consider Doré v Barreau du Québec (2012 SCC 12), the leading case on law societies’ administrative authority to regulate free speech.

    I see no indication that you’ve considered it either. If you can explain how Doré supports your position do tell. But a bare citation with nothing more just confounds the issue.

    > Second, even if he missed Doré, he fails to even mention that Charter rights are not absolute, but tempered by the reasonable limits clause.

    I can’t tell whether you are asserting that reasonable limits should apply here (why?), or that newspaper articles written in defence of Charter rights are inherently flawed unless they emphasize reasonable limits. But neither point is persuasive, and certainly not “dismantling”.

    > Third, the Statement of Principles may not even be “expression” under the Charter; it is unclear whether the Statements “attempt to convey meaning” per Irwin Toy Ltd v Québec ([1989] 1 SCR 927), when they are not necessarily shown to anyone ever.

    A law obligating all citizens to say a prayer to the Prime Minister every night before bed would be constitutional too, on that logic — after all, no one has to hear you say it!

    > And, fourth, Pardy forgets that every lawyer, upon their Call to the Bar of Ontario, already must swear or affirm a prescribed statement.

    The Ontario Oath is about good conduct, and does not require lawyers to affirm any personal beliefs (or “principles”). Further, the Oath contains nothing that any lawyer finds objectionable. Even swearing allegiance to the Queen is now gone. In contrast, the current Statement of Principles requirement is obviously quite contentious — isn’t that relevant?

  6. Whether or not Professor Pardy “missed” Section 1 of the Charter, or chose not to raise it since it is entirely moot, is a reasonable question. Your presumption of incompetence is, however, not.

    You state that “he missed” discussing a principle in Charter analysis. True enough, but then you miss noting that Section 1 wouldn’t apply — or, rather, that it would only apply to Charter breeches “prescribed by law.”

    I’d suggest it is likely that Professor Pardy did his research, believed that the Law Society had not taken steps to prescribe the statement under its regulatory authority, and chose, in circumstances where he was almost certainly under a word limit, not to discuss the irrelevant or further confuse the topic.

  7. Isn’t that just what you are doing here, with this article, leveraging your ‘expertise’, your ability to access a platform such as Slaw, to advance a personal view, regardless of whether it is shared by others? I mean, come on, are you saying that a woman has no right to talk about battlefield tactics if she has not been on a battlefield, or that a Muslim has no right to comment on legislation affecting dress codes than a Christian, our secularist?

  8. Justin: My challenge to his substantive analysis was intended merely to highlight his cherry-picking the law while also holding his piece out as the definitive statement of the law. I acknowledge that the Doré approach is in flux in the subsequent jurisprudence, and Irwin Toy hasn’t to my knowledge been seriously reconsidered in a long while. My point is that he suggested far more certainty than there was. Pardon my imprecision in wording, but that is “bad” in my books when addressing a lay audience.

    Anne: I find your interpretation charitable but reasonable. I posited my opinion only as a possible explanation.

    Thomas: I expressly limit my critique to commentary in the lay media. Clearly, the Slaw audience has the tools to assess my and Pardy’s arguments for itself (see above).

  9. Fred,

    Sometimes the best responses are those which highlight how empty rhetoric actually is.

    You’re right though, it doesn’t necessarily attract the same media attention.

  10. Kyle Carruthers

    The Pardy article you link to is 99% philosophy and, perhaps, <1% law. I don't even know if it can be said that his piece offers a legal opinion on the constitutionality of the statement of principles.

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