Column

Enlightenment Now!

Most of us watch politics in the United States with alarm. Falsehoods are routinely offered as if truth no longer matters. Genuine expertise is devalued in favour of unfounded opinion and conspiracy theory. Candidates espousing bizarre conspiracy theories have gained political traction. Calls for hatred and division have become normalized. Shame no longer seems to constrain.

Canadian political culture has not descended to the same depths but there is reason for concern. On social media and elsewhere, trolling, derision and contempt are commonplace. While it would be naïve to think that there were halcyon times of good faith public debate, it appears that the trend is to increasingly disparage and demean rather than to engage. It is not a novel observation that there is much today that fails to respect the advances for democracy and human knowledge that sprang from the age of reason, the Enlightenment[1].

In a previous column, I quoted Professor Danielle Allen who wrote “Within democracies, … congealed distrust indicates political failure. At its best, democracy is full of contention and fluid disagreement but free of settled patterns of mutual disdain. Democracy depends on trustful talk among strangers and, properly conducted, should dissolve any divisions that block it.” We do not have to like each other, respect each other, or agree with each other. But merely attacking and disparaging each other leads nowhere good. Indeed, democracy is thereby put at risk. This concern once seemed theoretical. Whether in Hong Kong, Belarus[2] or the United States, the risk is shown to be real.

Parallels between “legal ethics” and “political ethics”

These observations are far from original. Why include them in a legal ethics column? The point is to draw a parallel between the importance of “civility” in political discourse and “civility” in legal ethics.

The legal system and the political system have parallel purposes. The legal system seeks to resolve specific disputes of various kinds. Our approach where disputes must be resolved is ordinarily the adversarial system. Parties to a dispute put their best factual and legal case to a neutral decision-maker. Neutral decision-makers find facts and interpret and apply the law. No one does (or at least should) think adjudicative decisions are always right. In civil matters, facts are determined on the balance of probabilities. By definition, adjudicative decisions in civil matters will not uncommonly be wrong in fact. In criminal matters, the requirement of proof beyond a reasonable doubt by definition means that many victims of criminal conduct will not find justice – such is the necessary consequence of trying to avoid wrongful convictions.

Our legal system is the way by which we resolve specific legal differences. The legal system is not perfect, far from it. But it generally is accepted as a reasonably acceptable way to resolve differences, at least compared to the alternatives.

The political system has the parallel purpose of resolving political differences within society. In any society and particularly a diverse society such as ours, not everyone will agree on many important matters. Like the legal system, our political system is the imperfect means by which political differences are resolved. Like legal decisions, there is no assurance that political decisions will be or can be “right”. Rather, the point of the political system is to resolve political reasonably well and, more importantly, through a process that allows decisions to be accepted even by those who disagree with the result. This is why Professor Allen writes that “congealed distrust indicates political failure”.

Role morality and the concept of legal ethics

In my view, the phrase legal ethics is inherently misleading. Legal ethics is not much about moral philosophy or individual ethics. Legal ethics is mostly about role morality rather than individual morality[3]. In this sense, legal ethics seeks to answer the question: “what conduct is required from a legal representative”. A similar question can be asked about judges: “what conduct is required from a judge”. Similar questions can be asked about professionals in other contexts, for example “what conduct is required from a doctor or other health care practitioner”. These questions require pragmatic assessment of what conduct is practically required to make our systems work as intended. The required conduct for different roles will be different for different roles[4] as can be the process by which alleged misconduct is dealt with.

Legal ethics can generally seen as being comprised of duties owed to clients and duties owed to the legal system itself. This reflects the nature of our legal system. Our system is premised on individual human dignity and autonomy. Lawyers and paralegals are an important necessary evil. In a perfect world, people would be able to represent themselves and make their own choices in the legal system. But we do not live in that perfect world – people need expert assistance and need to know that their expert representatives are loyal, competent and that they are advisors rather than the ultimate decision makers. The same is true for doctors. Lawyers protect legal interests. Doctors protect health interests. Clients and patients are entitled to make their own choices with the benefit of expert assistance.

It is fundamental to legal ethics that there are duties owed to the legal system as well as duties owed to clients. A superficial and erroneous view of legal ethics ignores this fundamental requirement and would lead to the claim that the duty of loyalty requires that everything and anything be done to maximize the prospect of success for the client. This erroneous view would countenance leading false evidence, suppressing evidence that is required to be disclosed, misleading the court as to the law and the facts and other such improprieties. Legal ethics does not allow unrestrained advocacy but rather requires counsel to advance client interests within the adversarial system. In this way, the neutral adjudicator is best able to make the best possible decision in a fair process.

Civility and legal ethics

While there has been much debate in recent years about the requirement of civility in legal ethics, that debate has been mostly at the margins – important margins to be sure. One of the problems with the term “civility” is that it really addresses more than one concept. One aspect of civility is about appropriate manners, abusive name-calling and the like. In an adversarial system, it is important that the fight be about what is really in issue (facts and law) and not descend to irrelevant attacks on witnesses, adverse parties, or counsel. Abusive language can be an improper attack. But abusive attacks can be polite. What is and is not an improper attack as a matter of legal ethics and who should be the decision-maker depending on the nature of the alleged misconduct was the subject matter of the important case of Groia v. Law Society of Upper Canada, 2018 SCC 27.

I refer to civility not to talk about the substance of the civility requirement but simply to observe that the point of the civility requirement in respect of disputes is to better ensure that the adversarial process operates properly. An advocate who is improperly “uncivil” may achieve a better result for his or her client (although the opposite is often true) but such is corrosive of the legal system.

Civility and the politics

To return to the parallel that I seek to draw, the same thought applies to the political system. A democratic system is premised on an informed electorate making choices including as to their representatives. Lies about the facts, inappropriate attacks on political adversaries and voter suppression may increase the prospects of political success but at a high cost to the fair and effective operation of the political system. Doing whatever is thought necessary to win an election and doing whatever is necessary to win a case cannot be acceptable. Our fundamentally important legal and political systems depend on competitive conduct that respects the fair operation of these systems.

That there are parallels as described is not surprising. We have an adversarial legal system and a competitive political system. Both depend on participants seeking to win. But both also depend on observing the written and unwritten rules of the game if the systems are to operate properly reasonably well and to be seen as being legitimate.

I would take this parallel one step further beyond the legal and the political systems to debate and discussion generally. We sometimes talk about a “marketplace of ideas” which is a somewhat mercantile way of talking generally about the importance of free speech. Knowledge and insight are best advanced by information, debate and discussion. But the “marketplace of ideas” can be corrupted and disrupted just as the legal and the political systems can be – and that seems to be increasing happening in the world of social media and pervasive unmediated mass communication.

The importance of the fair fight

As with legal ethics and civility, it is important to be able to fight politically about what needs to be fought about while not corrupting the fight. Unlike legal ethics and civility, the political system and the marketplace of ideas are not subject to regulation – rather it is social and political norms that apply, and those norms are currently at particular risk[5]. We need to take care to ensure that discussion, debate and disagreement is encouraged – and we need to maintain the social and political norms that support genuine discussion, debate and disagreement. Most of us can see the problems in the conduct of those with whom we disagree. But we need to hold ourselves and those with whom we agree to account.

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[1] The title to this column recalls the line yelled by the late Jerry Stiller in 1997 in Seinfeld.

[2] As I write this column, Alexander Lukashenko of Belarus is reported to have blasted those gathering to protest alleged poll-rigging and police violence as “rats”, “trash” and “bandits,” Seeking to dehumanize others is the common tactic of anti-democratic forces.

[3] With the result that there can be tension between the conduct required by a professional role and the personal morality of the individual. See for example Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. As well, some will see the conduct required of a professional to be immoral. Defending a person accused of sexual assault is sometimes seen this way.

[4] There are currently differences of opinion regarding what conduct should be required of benchers of the Law Society of Ontario and the process for dealing with alleged misconduct. Addressing these differences of opinion will necessarily involve consideration of the role of the bencher and what conduct is properly required. While there will be parallels between appropriate bencher conduct and, for example, appropriate director conduct, appropriate lawyer/paralegal conduct and appropriate political conduct, fashioning a code of conduct with respect to the bencher role requires consideration of what conduct is necessary and what conduct is destructive in that context.

[5] I teach a course in legal ethics at Osgoode Hall Law School. Last year, Patrick Cajvan wrote a paper for that class about “political ethics” which drew the parallel between the ethics required in our legal and our political systems. His paper entitled When lawyers are held to ethical and professional standards stricter than the Prime Minister of Canada, what does that say about the integrity of our political system? informed this column. I would offer two responses to the rhetorical question put in this title. The first is that the legal and the political systems are different albeit parallel in some respects. It is not a matter of stricter ethics but rather a question of what is required for the two systems to operate as they should. The second is that it makes sense for lawyers and paralegals to be regulated by a democratically established regulator. It is much more problematic to have independent regulation of those who compete for democratic election. We have such regulation in some respects (for example the Chief Elections Officer) but the ultimate regulator in political matters must be the electorate. This makes our political system more robust – and more frail.

Comments

  1. Beautifully argued, Malcolm. Thank you for this – it couldn’t be more timely.

    Howard

  2. Malcolm

    Thank you for this timely and insightful article. I am particularly interested in the concept of “role morality”. In a business context, I often asked the organization’s team to ask three questions when faced with a difficult operational decision 1) Who are we? 2) Because of who we are, what should we do? And 3) Then, how should we do it? It now seems that I was applying role morality without knowing it. In that case, I was leading a team that managed a charitable organization. Joining that organization was a moral choice in itself so I felt safe in reminding my team of their commitment to that organization’s goals when faced with decisions. At a base level, their role in society was to benefit others and provide support to those in need. That raises a question for you. As a society, do we make the role of “lawyer” clear enough as a moral choice? Is it safe for us to ask lawyers to ask themselves my three questions? Interested in your thoughts and to be engaged in a dialogue with you again…just like old times!

  3. Hi Kevin:

    The answer is probably yes and no. The yes answer is because the projects of legal ethics scholarship and and of professional conduct regulation are premised on an understanding of the role of the lawyer. There is some controversary but there is much that is agreed. The role of the lawyer is to assist clients understand their legal rights and responsibilities in fidelity to law. In a perfect world, clients would not need the expertise of a lawyer. But they do. And essential to the role of the lawyer is that the lawyer can only properly assist the lawyer in doing that which the client is entitled to do at law – hence fidelity to law. Most of lawyer role morality then becomes focused on the duties owed to clients and the duties owed to the legal system.

    This is similar to the role morality of a physician – a physician’s role morality is focused on the health and well-being of the client as opposed to legal rights and responsibilities- and like the lawyer, on the basis that the client is entitled to autonomy and respect in respect of their choices. The fidelity to law part of the lawyer’s role morality doesn’t parallel so well for physicians.

    The “no” part of the answer is that most lawyers, like most professionals, don’t think about these matters. I think that the client duty side of this is appreciated (if not always honoured) but that the fidelity to law side is not as well appreciated.

    I think that your three questions work and are particularly useful in better appreciating the role morality of different aspects of out work – lawyer as advisor, lawyer as negotiator, lawyer as drafter/legal designer, lawyer as advocate

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