Lawyers should avoid enabling harm to future generations but can still defend those who do, argues Philip Slayton
An article in the New York Times caught my eye. It was a story about JAB Holding, a German private company worth more than US$20 billion (its best known brands are Krispy Kreme Doughnuts, Pret A Manger and Keurig). JAB Holding is controlled by the Reimanns, one of Germany’s wealthiest families. When the Nazis were in power, Albert Reimann Jr. was in charge of the family business. Albert Reimann Jr. was an enthusiastic supporter of Adolf Hitler and a practitioner of Nazi race theory.
Peter Harf is the current chairman of JAB Holding. He acknowledges and profoundly regrets his company’s sordid past. Interviewed for the New York Times article, reflecting on JAB’s dubious history, Harf said capitalism could not be value neutral. Businesses, he said, do not operate in a value-free space. When business leaders make decisions, Harf said, they must ask, “What does this mean for our children?”
Harf is right. Business leaders should worry about the fate of our descendants, for they control much of that fate. Concern for future generations will often demand that the values and needs of society take precedence over business profits. This is particularly so in the case of climate change. Climate change has recently been widely recharacterized as a “climate emergency” in recognition of the existential threat it presents. Only ideological outliers and deluded cranks deny that this threat exists. The scientific evidence is overwhelming, and the world is already experiencing early indications of the destruction we can expect if little or nothing is done.
But not all business leaders and companies embrace this truth. What about those who show no concern for future generations, who do not ask, “What does this mean for our children?” What about lawyers who advise these insouciant business leaders and companies? Should a lawyer work for a company whose business clearly damages the environment — e.g., a coal mining company? Should a lawyer participate in a transaction that they know will worsen the climate emergency? (I recognize that sometimes the effect on the environment of a particular business or transaction may not be clear, but often it is.)
These questions about legal practice are one expression of the legal profession’s most important ethical issue. Should legal practice be value free? Should legal expertise be available to the wicked, the destructive, the dangerous, those who care not a whit for the general well-being, those who are indifferent to society’s basic values? Is representation of such people an essential ingredient of a free and fair society? Or does it make lawyers into collaborators, as dangerous as those they represent?
There are powerful arguments on both sides of this debate. Some argue forcefully that those who recklessly engage in behaviour that threatens society or are accused of the most odious crimes or who hold gross and unacceptable opinions are entitled to full and vigorous legal representation. The justice system requires it, they say. Lawyers cannot pick and choose clients and causes. There is no place in the justice system for political ideology, personal preference or moral judgment. There is no ethical requirement that lawyers refrain from helping those who damage the environment, just as there was no good reason why commercial lawyers should not have assisted reckless bankers who nearly destroyed the Western economy in 2008.
Others take an opposite view. The law, they say, is not value free. Lawyers are social warriors. Their job is to fight the good fight in everything they do. They must not aid and abet wrongdoing of any kind, including commercial wrongdoing. Just as pension funds should not invest in tobacco stocks, lawyers must not collaborate with those who are indifferent to the future of our children. They should be committed to using their legal skills to further a vision of the good society. I know, I know, arguments like these gloss over the problem that there are many and competing visions of what is a good society.
Can these opposite points of view be reconciled? To some extent they can be, although it is not easy. One useful three-part distinction is before, during and after the fact. Before: A lawyer should not help structure, initiate or promote activities incompatible with society’s clearly accepted values or dangerous to its future. During: They should not help promote or protect those activities while they are underway. After: But if these activities are ex post facto attacked legally, it is acceptable to provide the transgressor with whatever protection and defence our system of justice offers. This analysis insists that lawyers place the values of our society front and centre and do nothing to assist anything that clearly jeopardizes the future of our children, while at the same time recognizing that even transgressors must be treated fairly under law as it exists.
Back to my hypothetical coal company. Let’s call it “CoalCo.” How would the three-part distinction apply to CoalCo? Before: A lawyer should not help establish CoalCo or help with its growth and development, e.g., the opening of a new mine. If they do, they are working against the interests of future generations. During: A lawyer should not help CoalCo continue, prosper and grow, including representing the company in commercial disputes. After: But, if CoalCo comes under regulatory attack or criminal prosecution or is involved in certain types of civil litigation, it is appropriate for a lawyer to help it interpret the applicable law and defend itself as allowed.
I hear the usual cries of outrage. These ideas can be seen as deeply subversive of the legal system as we know it. But, is that a bad thing when we face grave crisis? Back to Peter Harf. He’s right. We must ask, now more than ever, “What does this mean for our children?”
Philip Slayton was the dean of law at the University of Western Ontario, a Bay Street lawyer, president of PEN Canada and is now a best-selling author. His latest book, Nothing Left to Lose: Freedom in Canada, is forthcoming.