Ronald Dworkin and Canadian Legal Ethics

Legal philosopher and Oxford and NYU Law Professor Ronald Dworkin died last month. Dworkin was arguably the most influential legal mind of his generation. Throughout his many writings, Dworkin argued that there was a moral content to law and to many of the phrases contained in the American Constitution. He strongly influenced legal scholarship and teaching in the United States and around the world, including Canada. Dworkin’s fingerprints can be seen in the Charter of Rights and Freedoms, its interpretation by the Supreme Court of Canada and in much academic writing in this country. 

Dworkin has also cast a giant shadow over Canadian Legal Ethics. The Rules of Professional Conduct that govern lawyers across Canada find their origins in a pre-Dworkinian era. Much of the writing of the group of new Canadian legal ethics scholars over the past decade has contained arguments about lawyer’s individual and collective moral responsibilities. University of Windsor Faculty of Law’s David Tanovich “Law’s Ambition and the Reconstruction of Role Morality in Canada” is one of the most important articles in this respect.

Sometimes Dworkin has had a more direct impact on our debates about ethical issues.

Over the past few years, members of the Canadian Association for Legal Ethics (CALE) as well as members of the bench have been discussing the appropriate role for retired judges. Western University’s Stephen Pitel and Will Bortolin wrote an article for the Dalhousie Law Journal in 2011 on this entitled “Revising Canada’s Ethical Rules for Judges Returning to Practice”.

In an article with the Globe and Mail, published a day or two before Dworkin’s death, former Associate Chief Justice of Ontario Dennis O’Connor who returned to his old law firm Borden Ladner Gervais LLP, was quoted as follows:

Mr. O’Connor says he won’t work as a litigator himself, as he does not believe former judges should appear in court: “I won’t go to court. There’s a debate on it. My view of it, quite strongly, it is inappropriate.”

I found this interesting because as set out by Pitel & Bortolin, current Law Society rules may limit but do not prohibit retired judges from appearing in court.

I was reminded of a passage from Dworkin’s book Is Democracy Possible Here?  that I have always found interesting. In the context of writing about his proposal for term limits for U.S. Supreme Court Justices, Dworkin wrote as follows (on pp. 158-59):

 They could not be allowed to take up corporate appointments or law firm partnerships or run for public office; the risk of an appearance of corruption while on the bench would be too great. But they could be appointed to lower courts, and they could, if the indignity were not too great, take up teaching in law schools, where the only possible corruption would be a benign penchant for praising their own opinions.

I have always wanted to know more from Dworkin about this. Why did he think that retired Supreme Court judges could not join law firms? This is the first thing that retired judges do in Canada. I proposed to the members of CALE that we invite Dworkin to our next conference or to the International Legal Ethics Conference to expand on his views.

Now we will never get that chance. We must soldier on in his absence.

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