What Do We Have the Right to Expect of Lawyers’ Conduct?

Do we have the right to expect lawyers to conduct themselves “better” or at a “higher plane” than ordinary mortals [😉] (that is, everybody else)? Or, put another way, do we have the right to impose on them what we, and perhaps others, consider to be acceptable behaviour?

Three recent situations involving lawyers make me wonder whether we do. I’m thinking of the expectations some people — I think mostly women — have who believe lawyers have an obligation to represent someone accused of sexual assault and the complainants in a particular way (focusing on the example of Marie Henein’s experience); the criticism by some (including myself) of lawyers who initiated and signed the Free North Declaration; and disapproval by some towards the lawyers (let’s say, Ontario Benchers in particular) who argue that articling students do not have to be paid at least minimum wage or even any wage.

I place the lawyers involved in these activities (whether as an individual or as a member of a group) along a spectrum.

At one end of the spectrum is Henein. Because of her professional defence work, she has been criticized and sometimes boycotted when invited to speak about her experiences as a foremost criminal barrister . Her “extracurricular” speaking relies on her excellent reputation as a criminal barrister; but the condemnations of her are directly related to (certain of) her professional achievements. The expectations (as far as I can tell) derive mostly from members of the public.

At the other end of the spectrum are the authors and other lawyers, including some who are members of their governing body, who signed the Free North Declaration. They are acting in a private capacity in issuing their manifesto, but they rely heavily on their status of lawyers in maximizing its appeal and impact. Expectations in this case may derive from other lawyers and members of the public.

And in the middle are the lawyers who oppose the minimum wage for students during the students’ experiential training (that is, articling students or those in the Law Practice Program). Involved in this debate are “ordinary” lawyers, as well as LSO Benchers who are responsible for governance of the legal profession in the province and thus in large measure the “face” the legal profession exposes to society. They are expressing their own private views but in the context of representing the legal profession. This is very much a lawyers internal debate for the most part.

Does the LSO Code of Professional Conduct (“the Code”) have anything to say when lawyers are not acting in their professional capacity as lawyers?

As the Code points out, “A lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society….” (Section 2.1-1, Commentary 4.1)

Although, “[g]enerally, …, the Law Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity” (Section 2.1-1, Commentary 4), the Code is nevertheless concerned not only with a lawyer’s professional activities, but also with their private conduct.

Thus the LSO reserves the right to discipline lawyers “for conduct unbecoming a lawyer”, which is different from “professional misconduct” (Sections 7.8.2-3 and 7.8.2-2, respectively).

The Code defines “conduct unbecoming a barrister or solicitor” as “conduct, including conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession” and provides the following examples:

    (a) committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer,
    (b) taking improper advantage of the youth, inexperience, lack of education, unsophistication, ill health, or unbusinesslike habits of another, or
    (c) engaging in conduct involving dishonesty or conduct which undermines the administration of justice….

(Section 1)

In contrast, “professional misconduct” means conduct in a lawyer’s professional capacity that tends to bring discredit upon the legal profession including

    (a) violating or attempting to violate one of these rules, a requirement of the Law Society Act or its regulations or by-laws,
    (b) knowingly assisting or inducing another legal practitioner to violate or attempt to violate the rules in these rules, the Paralegal Rules of Conduct or a requirement of the Law Society Act or its regulations or by-laws….

(Section 1)

The Code also notes,

Dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Law Society may be justified in taking disciplinary action. (Section 2.1-1, Commentary 3)

Particularly relevant to at least one of the cases I’m discussing, the Code recognizes that lawyers may act or speak in a public capacity. Section 7.5-1 states,

Provided that there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.

This seems to relate to speaking about a case in public, but among other kinds of public activities, the Commentary 6.1 to Section 7.5-1 notes,

A lawyer is often involved as advocate for interest groups whose objective is to bring about changes in legislation, governmental policy, or even a heightened public awareness about certain issues. This is also an important role that the lawyer can be called upon to play.

(The Federation of Law Societies of Canada’s Model Code of Professional Conduct has equivalent provisions.)

In other words, the Law Society does care to some degree how lawyers behave in their private lives, suggesting that lawyers have an obligation to behave according to acceptable standards or, phrased in the opposite way, an obligation to behave in ways that do not bring the legal profession into disrepute. Perhaps inevitably, however, there may be a tension between acting in ways anticipated by the Code and expressing one’s unpopular opinions.

At the outset, let me make clear that, with one exception, to my knowledge I personally know none of the lawyers involved in the examples I’m discussing. (I realize that makes it seem as if I know very few lawyers!) Marie Henein was from July 2007 to May 2009 an at-large member of the Board of Governors of the Law Commission of Ontario at the beginning of my time as executive director; I had little personal contact with her other than a few meetings.

I begin with the Henein case. Marie Henein has been well-known and well-reputed for successful representation of many clients charged with criminal offences. In recent years, though, she has been treated as persona non grata by a number of people and institutions who believe she did not act appropriately towards the complainants in the Ghomeshi case. These people claim she has let women down by the way she represented Jian Ghomeshi in his trial for sexual assault (or perhaps merely because she represented him).

What was her sin? She cross-examined the complainants about omissions in their testimony and their emails to each other to impugn their credibility. She did not use myths and stereotypes. And because the complainants had not told the police or the prosecutors the whole story, the prosecution was caught flat-footed. She used her expertise, experience, skills and commitment to preparation in defence of her client, as section 3.1-1 of the Code requires her to do.

Furthermore, section 5.1-1 of the Code explains how a lawyer is to advocate for their client: “When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.” Furthermore, as the Commentary to section 5.1-1 states,

In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law….

The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case.

When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer’s private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent.

(For descriptions of the Ghomeshi trial, see here and here.)

As a result of her professional fame, individuals and institutions have invited Henein to be a speaker. And this is where the question of expectations of a lawyer’s conduct come into play.

Some members of the public, including university students, have tried to prevent her speaking. For example, a student wrote that Henein’s scheduled appearance at Nova Scotia and Quebec universities (one live, the others streamed) “serves to silence victims and perpetuate rape culture.” The student was concerned “by the message sent by Henein’s aggressive treatment of the women who had accused the former CBC host of sexual misconduct”. (Although apparently a fourth university would usually stream events, it was not going to stream Henein’s talk.) (See this story in the National Post here).

Recently, a superintendent of the Toronto District School Board (“TDSB”) refused the offer by a woman who has organized a successful book club for teenage girls to invite Henein to discuss her memoir, a refusal a spokesperson for the TDSB has said was “a mistake” (on the book club, see here; for a Globe and Mail story on the TDSB, see here). (As one letter writer wrote to the Globe and Mail in relation to the TDSB, “In taking on [Ghomeshi’s] case then, there should be karma for Ms. Henein now.”)

The expectation some had was that Henein not represent Ghomeshi or, given that she did, that she protect the complainants from their own conduct. This expectation is at least in part based on a lack of knowledge about the criminal law system (on this point, see Carissima Mathen’s opinion article in The Globe and Mail and an earlier piece by )

As Gail Cohen in Canadian Lawyer said, the treatment of Henein “highlights how social media and minute-by-minute commentary from those who don’t really understand the criminal justice system can be whipped up into a fervour of misinformation and personal insults” (see here).

The other two cases are different in context from the Henein situation. They share similarities with and yet are also different from each other.

I suggested that the authors and the other lawyer signatories of the Declaration lie at the opposite end of my continuum. They are expressing their opinion as private citizens, supposedly with no connection to their professional lives. Yet they are also blatant about their status as lawyers. In my last Slaw post, I wrote a critical analysis of the Free North Declaration and I said they, of course, have a right to express their opinions about how government has responded to the coronavirus pandemic, but I also maintained that their status as lawyers is not irrelevant.

On the contrary: having identified themselves as lawyers, presumably because they thought that added weight to their opinions, do they have an obligation to take into account their obligations as lawyers. Do they have a duty to recognize their “special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society”?

As I pointed out in my Slaw post, where I discussed it in detail, the Declaration is at times misleading and at times incorrect, when, for example, it talks about vaccines or the role of doctors in supporting medical exemptions for vaccines. Or even the significance of the pandemic which, while they correctly note, has a mild impact for most people, also has resulted in many hospitalizations and deaths and long-term impacts. Overall, it is based on the premise that we owe others in society little.

The LSO Code encourages lawyers to speak out in the public interest. I have no doubt that the signatories of the Declaration believe they are acting in the public interest. As Bruce Pardy, one of the authors of the Declaration, explains in the National Post, the Declaration’s authors have directed their missive at “those who see that something is not right in this country, and who need to know that others see it, too — and that there are still lawyers who will stand up for their freedoms”.

Some actions governments (federal, provincial and municipal) have taken over the pandemic warrant criticism (recently, for example, critics of the provincial government have pointed out the error in identifying dates when restrictions would be relaxed or eliminated instead of basing those changes on the evolution of the virus and have homed in on the failure to distribute rapid tests widely, among other criticisms throughout the pandemic; others have condemned the federal government’s closing of the border to flights from African countries because of the Omicron variant).

It is not criticism as such that attracts concern. Rather it is how the criticism is framed. Do the authors as lawyers have an obligation to base their “call to defend civil liberties in this country” on a more complete acknowledgement of the seriousness of the pandemic (it is disingenuous to focus only on the fact most people who contract it experience mild symptoms, for example [there have been about 30,000 deaths in Canada]), regardless of whether one agrees with all steps taken to address it? and to the extent they misrepresent it, do other lawyers have an obligation to set the record straight?

In the third example, some lawyers are acting in their capacity as regulators of the legal profession, while others, “ordinary” practitioners, are expressing their views of something that affects members of the legal profession: whether the Law Society of Ontario should require those employing articling students to pay them at least a minimum wage.

I recall when I was at law school, there was a discussion about this and that I heard about students who would be articling for free. Admittedly, I was shocked; the justification then, as now, is that if those not paying salaries were required to pay salaries, they would not hire students who then would not be able to satisfy this licensing requirement.

The Professional Development and Competence Committee (“the Committee”) states in its report for the November 26, 2021 Convocation that “it is estimated that every year, between 10-15% placements are paid below statutory minimum wage or unpaid. Conservatively, this translates to approximately 130-150 articling and LPP/PPD [the French-language LPP] placements per year that could be lost from the system” if the Law Society required lawyers to pay articling students and it recommended encouraging instead of requiring the minimum wage. (For the Committee’s report, see here and Convocation’s decisions, see here; for the Twitter debate on paying articling students, see here.)

To be clear, not paying minimum wage to articling students is not illegal (as I saw one person claim on Twitter). Part IX of the Ontario Employment Standards Act, 2000 (ESA) addresses minimum wage requirements. Section 23(1) requires an employer to “pay employees at least the minimum wage”. By virtue of O.Reg. 285/01, Part IX of the ESA applies neither to “a person employed, (a) as a duly qualified practitioner of, (ii) law” nor to a person employed “(e) as a student in training for an occupation mentioned in clause (a)….”

Therefore, lawyers are lawfully entitled to benefit from the labour of articling students for free and presumably to advocate that lawyers be allowed to do so (although one wonders in passing whether they would be able to get away with advocating for the reintroduction of “slavery”). The question, then, is should they?

In 2018, Convocation, Ontario lawyers’ governing body, approved mandatory minimum compensation for articling and Law Practice Program students for a specified period of time. The issue arose again at the November 26, 2021 Convocation, which deferred consideration of it. A consultation on the issue is now ongoing.

It is noteworthy that the Committee observed that sole practitioners and small firms might have difficulty dedicating “billable resources” to “hiring and training an articling or LPP/PPD candidate”, even though (I observe) the point of articling is the training. Section 6.-2 imposes exactly this expectation on principals:

A lawyer acting as a principal to a student shall provide the student with meaningful training and exposure to and involvement in work that will provide the student with knowledge and experience of the practical aspects of the law, together with an appreciation of the traditions and ethics of the profession.

(The Committee stated that even if principals do not have time [that is, sufficient “billable hours”] to train students, the students might still have “valuable opportunities to learn how to run a law firm and to have significant client contact”.)

Benchers and ordinary lawyers have been vocal about not paying a wage (or not a minimum wage) to students in their experiential stage of their career development. There is nothing to stop them taking this position (as long as they obey any relevant LSO requirements).

What do these three cases say about how lawyers conduct themselves and what expectations people should have about lawyers’ conduct?

The Henein case is, in my view, the easiest to address. In her professional life, she does nothing that contravenes the rules of conduct. Those who treated her conduct as wrong did so because they disagree with the way the criminal law system deals with the complainants who, as witnesses, are subject to some of the same processes as other witnesses. (Of course, some would say they are not like other witnesses; this is true in some respects and the law has recognized that in some ways.) Her speaking engagements derive from her professional life, but they slide over into her private conduct and here there is nothing that offends the Code of Professional Conduct in either case. Indeed, she does exactly what the Code requires her to do as an advocate and in defence of a criminal accused.

The signatories to the Declaration are acting in their private life; they have a right to speak out against the government (and there are situations in which we would encourage that, as the Code says). Is there anything in pandemic circumstances that changes that? I’d say “no”. But I’d also say, in conformity with the Code, “Dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice.” As the Code also says, “a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.”

Does the language, tone and misleading nature of the Declaration mean that the authors’ and signatories’ conduct reflects favourably on the legal profession”? Do we have the right to expect that even when expressing heartfelt views, lawyers have an obligation to be honest? In my view, that is a rock bottom requirement.

Finally, do lawyers who promote the “employment” of articling students without pay reflect the best traditions of the profession? Can the justification that the students need to satisfy the articling requirement so they can go on to become lawyers hold water? Does it make sense that a lawyer who does not have enough work to warrant a student can provide an appropriate training experience? Maybe, but I tend to think not.

It is ironic that it is the lawyer who has exhibited excellence in her professional life has led to “cancelling” and name-calling when she seeks to share that experience. Granted, the lawyers arguing for paying no or less than minimum wage to articling students were subject to criticism at Convocation and to hearty criticism on Twitter (my only social media source). Nevertheless, this is a mild debate. As for the Declaration, despite the impression it leaves of the legal profession, it seems that generally it is thought the best approach is to ignore it as not worthy of comment. Yet, I do wonder whether the reputation of the legal profession deserves more.

Comments

  1. Thanks very much for your post. It articulates well the disconnect between public views / progressive advocacy and the mandates of professionally responsible criminal defence. The consequences arising from Marie Henein’s successful defence in Ghomeshi’s case track with concerns I raised in an article I wrote back in May 2016: https://canliiconnects.org/en/commentaries/41971 .