Lawyers and their demons

Lawyers and their demons
This summer, the bar became poorer for the admission of a convicted sex offender, and for the departure from this world of an honourable defender of some of history’s monsters.
The offender called to the bar
On July 29, 2013, the Law Society of Upper Canada Appeal Panel admitted to the practice of law a recently defrocked Grade 7-8 teacher. His teaching licence was revoked upon his conviction for the sexual exploitation of a 14-year-old former student and for luring her using a computer.

The offender had encouraged the victim to lie to her mother in order to arrange a stay in a motel. He was charged after the mother reported her daughter missing the next day.

Before pleading guilty to the charges in 2006, he inquired with the LSUC whether a criminal conviction would bar him from becoming a lawyer. On being advised of the possibility of being admitted, he prepared an application for law school. It is not clear from the agreed statement of facts filed in the original good character hearing whether he was accepted to law school before or after the first guilty plea. He did not enter the second plea until after the school accepted him, and he had to apply for deferred entry because of his jail sentence.

At the good character hearing, the ex-con offered evidence of his remorse and recognition of the impact of his offences on the victim and on his family.  Neither the tribunal reasons nor that of the appeal panel noted evidence of any understanding of the effect of his offence on the teaching profession, in particular the underrepresentation of men. Perhaps the dean, who guided him during his law studies, ought to have encouraged him to research the public consequences of fiduciaries engaging in breach of trust, before applying to become a lawyer. A conscience beyond the closed circle of his personal life, however infernal, was too much to expect from a narcissist whose application to law school was not an honourable ambition but a private plea bargain.

A funeral for the devil’s advocate
On Aug. 15, 2013, globe-trotting trial lawyer Jacques Vergès died at the age of 88. Vergès’ death sparked jubilation among those who equated him with the bad people he defended in court: ex-Nazis, Khmer Rouge leaders, Saddam Hussein's foreign minister Tariq Aziz, and Carlos the Jackal, among others.
At the funeral of this towering but controversial colleague, the head of the Paris Barreau Christiane Féral-Schuhl, eulogized him as “an advocate running beside the history of the 20th century.”

Vergès, unlike others like him, provided a unique answer to the perennial dinner party question: how can you defend an accused you know is guilty of horrific acts? You and I might give the stock answer that everyone is equal before the law and deserves representation. Vergès maintained that only through a public defence can the world begin to comprehend those horrific acts, and thereby try to prevent history from repeating itself. Vergès was guided by the maxim, “un avocat qui devient ministre trahit sa mission,” a lawyer who is a mouthpiece for his client betrays his retainer. He possessed a surplus of intellectual rigour, and he needed all of it to keep on the right side of his professional responsibility.
What they teach us about our profession
The contrast between a Canadian law society’s admission of a candidate who plotted his entry into a profession built on trust and honesty, while mulling over his pleas to two criminal offences involving dishonesty and breach of trust, and the death of the honourable advocate of war criminals, racists, and terrorists, struck me this summer as moral antipodes. One entered a noble profession from a position of ignominy. The other exited it in glory, having accepted clients most lawyers would shudder at representing.

What, then, can the vast majority of us, who are neither convicted criminals nor legal legends, take away from these contrasting vignettes? The lesson is in fact one of the toughest any lawyer must learn: Our role as the client’s conscience before the law means we must not become their mouthpieces.

Thus, experienced lawyers of “good character” cringe when they hear an advocate for an innocent victim attempt an argument that is factually and legally unsound, in order to tug at the heartstrings.

Equally, they marvel at the skill of a defender of a reviled accused, if the lawyer remains faithful to the facts and law. The highway billboard casting a lawyer as the champion of accident victims, the corporate lawyer who uses a client’s power and might to evade legal responsibilities, the family lawyer who asks irrelevant questions of an opponent’s client for abusive purposes — these are not examples of our value as a profession, but indeed sources of our emerging irrelevance.

The truly great personal injury lawyer will not ask the court to find for his client because his client is hurt, but rather because the client deserves justice. The good corporate or in-house lawyer will recognize that clients need to be defended, not because they are targets, but because their economic activities expose them to both legitimate and frivolous suits and regulatory scrutiny. The family lawyer of good conscience will ask the tough questions, but only if there is a legal basis.

The widening gap between lawyers who serve opposing sides of typical disputes comes from the mindless adoption of clients’ mind sets and the ethical decisions, good and bad, that lead clients into legal problems. In contrast, the ability to stand clear of the clients’ identities allows lawyers of good character to stand together and treat each other with respect. The greater this respect, the better the quality of legal service.

Time will likely be slow to determine whether the disgraced school teacher chose the right second profession. The good character requirement is not simply a vestige of a conservative profession. The ability to discern right from wrong, and the ability to see the full extent of unlawful activity, is what makes us so capable of defending people accused of crimes, many of whom, like our new colleague, are found guilty of the charges against them. What will make it difficult for him to find his place within the bar is his decision to apply for entry before facing up publicly to his breach of trust.

The professional college to which he now belongs will, in the end, judge him by his ability to demonstrate knowledge and application of law, the rules of right and wrong. Let him apply himself and earn respect as a jurist, and we can then rise to his defence against those who will continue to defy his right to practice because of his past crimes. If he slays some demons other than his own, he will start to learn why it is an honourable profession.

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