Telling it like it is

  • Subtitle: Legal Ethics
Written by  Posted Date: June 6, 2016
Illustration: Dushan Milic
Illustration: Dushan Milic
Ezra Levant is a conservative media commentator or, if you prefer, an over-the-top right-wing rabble-rouser. He thrives on controversy and conflict. He feeds the flames of intemperance. He’s always having a fight with somebody. He’s rude. He makes people angry and delights in doing so. He’s scoffed at by flaneurs in what American public intellectual David Brooks calls the “corridors of the cognoscenti.” He’s not to be taken seriously, the flaneurs say. Maybe they’re right. Maybe they’re not.

Levant was a lawyer. He was, until recently, a member of the Law Society of Alberta, although he hasn’t practised law or lived in Alberta for some time, earning his living as a Toronto-based journalist. For years, he wanted to resign from the Alberta bar, but the rules made that difficult. For almost a decade, a lot of people, including other lawyers, made formal complaints to the law society about things Levant said and wrote, and in particular about his lack of “professional courtesy.”

The LSA rules say that you cannot resign in the face of an unresolved complaint without special permission. Resignation without permission is regarded as the equivalent of disbarment. The argument is that to permit unilateral resignation if complaints are outstanding would allow a lawyer to escape the society’s disciplinary jurisdiction. The Ontario bar, and I think the bar of every other province, has similar rules. So Levant was trapped in the unwanted and clammy embrace of the Law Society of Alberta. Quite reasonably, he said he would only resign if pending complaints against him were dismissed and he could leave the profession unbesmirched.

Levant calls the complaints to the law society about his conduct “nuisance complaints.” He says they are “free shots” by his political opponents. He points out that anyone who objected to his views expressed as a journalist on his web site, in newspaper articles, or on television could tie him up in knots and inflict expense by complaining to the LSA. Over the years, 26 people did exactly that. Of those, 24 were dismissed, leaving two outstanding until recently. A number of the complaints were about Levant’s criticism of the Alberta Human Rights Commission. He has called the commission “crazy” and criticized several of its officials. Levant has said the LSA “has become a magnet for every nuisance litigant, crank, and shakedown artist in the country.”

In March, the law society finally accepted Levant’s resignation, saying that to do so “was in the best interests of the public.” It summarily dismissed the two outstanding complaints against him. No doubt LSA officials heaved a mighty sigh of relief when Levant left town. Levant thinks he knows why the law society decided in his favour. “They want to stop being forced to read my newspaper columns and watch my videos as part of their job.” My guess is that from the get-go the law society had no enthusiasm for disciplining Levant but was trapped by its own rules.

Levant has argued that at least some of the complaints against him, and the formal process and requirements they triggered, were “a violation of my Charter rights of freedom of expression, freedom of the press, and freedom of conscience.” He’s right. It would be illegal and absurd to allow the demands of courtesy to trump freedom of expression. Admittedly, courtesy is a desirable social quality that promotes civility. But freedom of expression is a vital principle on which our free and democratic society depends. It beggars belief that anyone could seriously entertain prizing courtesy over freedom.

In particular, it beggars belief that lawyers and the organized legal profession would advance such an ignorant idea, yet they do. The nadir was the bizarre prosecution of Joe Groia by the Law Society of Upper Canada. I won’t rehash the depressing and fantastical details of this well-known case again (I’ve written about it in these pages before). Suffice it to say that zealous LSUC disciplinarians charged Groia with incivility contrary to the Rules of Professional Conduct in the conduct of an insider trading case. He was accused of being strident and sarcastic, rude to a lawyer for the Ontario Securities Commission, and prone to “rhetorical excess” and “petulant invective.” Law society officials have pursued Groia for years, to the metaphorical ends of the earth. Shame on them.

This misplaced emphasis on courtesy, the desire to avoid conflict no matter what, is part of an excessive Canadian politeness and deference to authority that is dangerous. We are too respectful of those who have position and power. Often, that is not appropriate. Sometimes, it is downright dangerous.
Sometimes, there is a need for something more robust. Skepticism and suspicion are regarded by many as unpleasant attributes, but they have their uses.

I am reminded of what the late David Carr of The New York Times said when asked why British journalists were so effective and successful in the United States: “The one question all young reporters on Fleet Street are taught to keep foremost in their mind when interviewing public figures can be best paraphrased as, ‘Why is this jerk lying to me?’” Being obnoxious can lead to the truth.

One other point about Levant’s LSA resignation: Why should permission be required to resign from a law society? It’s like insisting that your grown-up kids can only move out of your basement if you say they can. The requirement seems authoritarian and irrelevant. It can easily lead to protracted and pointless nonsense that eats up resources, as it did in Levant’s case. The rule needs to be re-examined. There are other ways for a law society to tidy up any mess that a departing member might leave behind.

Ezra Levant may be a bit of a blowhard, but sometimes he tells it like it is.

Philip Slayton is immediate past president of PEN Canada, an organization that promotes and protects freedom of expression.

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Comments   

0 # Remove the monopolyIain Smith 2016-07-18 12:26
Alberta law society practices at fault? not by their standards; however those standards are written by the Law society. Welcome to the world of catch-22. Competition in the standard bodies in Alberta would be more effective.
Either way its an article that highlights the separation from reality that legal bodies (and their members) enjoy.
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-3 # Mr.MJ Murphy 2016-06-06 19:04
When you say tell it like it is, does this mean you are committing to the many, many utterances of Mr. Levant's that have been found to be defamatory or likely examples of hate speech?
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+2 # LaymanBlake Mathews 2016-06-06 18:43
Twenty-four out of twenty-six cases being dismissed says it all. Why would any rational minded talent want to voluntarily subject themselves to such needless vulnerability?

As just some dummy on the sidelines looking in, it appears the only substantial privilege provided by LSA membership is the discount on Wiley publications?
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+2 # Prof.Stephen Scott 2016-06-06 17:37
Amen, Philip!
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+2 # lawyerJohn G 2016-06-06 17:18
Many modern professional regulation statutes allow the regulatory body to discipline its former members for things they did while members. This prevents the members from being immune to sanction for what they did while members, by a well-timed resignation.

In some cases it will be important that the regulator can still investigate and punish people for what they did while regulated.

With such a rule, one would not need to insist that members can resign only with permission. For some of these people, one does not even want them to be members. For goodness sake, let them go. Don't keep them hanging on in a decision-free limbo.

Presumably such a rule would also allow the regulators to decide if the alleged offences were worth pursuing after the member had left. For Mr. Levant, the answer was almost certainly No.
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Philip Slayton

Philip Slayton is president of PEN Canada, an organization of writers that protects and promotes freedom of expression. Follow him on Twitter @philipslayton.

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