Apathy is Unethical - In my opinion...

As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness.

- Justice William O. Douglas (U.S. Supreme Court)

As lawyers we enjoy a privileged position in society. Even those of us who toil away in the criminal justice system relying on the $84.00 per hour Legal Aid rate to help keep the lights on will typically drive better cars, live in nicer neighbourhoods, and be able to share more luxuries of life with our friends and family than the elusive "average Canadian".

The position of privilege is not one only defined in economic terms, however. By law a member of the Law Society of Alberta in good standing has rights of audience in Her Majesty's courts which are not automatically afforded to every citizen. We have exclusive province to practice law giving legal advice to others and guiding them through an ever increasingly complex justice system often at times when they are most vulnerable.

Our education gives us wisdom and insight, our training gives us confidence and skill in the art of persuasion, and our immersion in the innards of "the system" gives us unparalleled access to bear witness to and comment on "the good the bad and the ugly" of Canadian justice.

It would be easy for me at this juncture to cruise down a predictable path extolling the virtues of ethics and integrity placing high on pedestals such ideals and simultaneously vilifying the concept of making significant financial gain by the predation of the misfortunes of others.

But I won't.

Unlike many critics of our profession I have absolutely no problem with a lawyer in a free market system making a six figure income by becoming a master of the trade and providing invaluable service to his or her clients. I aspire to such success myself. The reality is that people will visit upon themselves, or suffer such misfortunes from without, regardless of whether a lawyer is around seeking to profit by getting them out of trouble.

Where my problem lies is in the apparent number of lawyers who seem to get the self-interested success part down pat (at varying points along a continuum) but fail to accept a professional responsibility to the system and the members of the public whose troubles have provided for such a lucrative career. Worse yet, the level of many lawyers' success (i.e. the sheer enormity of the money they make and their potential for advancement and appointments) is often then cited as the specific reason why they will not "rock the boat" or speak out publicly about things that they consider unjust or oppressive within the justice system.

When one moulds his or her concept of success around the maxim that "it is not what you know but who you know" then an obvious corollary is that "it is not what you say but who hears you say it" that will dictate the person's willingness to speak for those who have no voice. For a criminal defence lawyer, I dare say such an ignoble approach to the practice of law places self-interest far above the best interests of the accused and society as a whole...accepting injustice in silence because to speak would create a risk of personal consequences.

To resort to a cliche, a squeaky wheel will get the grease...therefore, many people will refuse to squeak in order to avoid getting grease stains on their favourite shirt?

What am I really trying to say here? Well, like the title says...apathy is unethical. Is it easier to only be controversial (if at all) within the confines of solicitor-client privileged communications? Is professional life "smoother" when you only complain to other defence lawyers in a lounge where everybody agrees that to speak publicly is not advisable? Is "flying under the radar" on access to justice issues and hot topics like judicial appointment protocol or the latest new "law and order" legislation less stressful? Totally...100%...yes.

But, in my view, to ignore such important matters where you see ways to improve the system is to abdicate the responsibility that comes with the position of privilege that we hold as barristers and solicitors. Lawyers who make a living litigating the rights and freedoms of their clients have an obligation to challenge aspects of the system which threaten the rights and freedoms of their clients (and by necessary implication, all Canadians).

Having the opportunity to see problems first-hand, the knowledge and advocacy skills to identify and publicize such problems, and the power to actually confront and eliminate such problems means that as lawyers we cannot in good conscience sit in silence, indifferent to inequity, corruption, and illegality, and wait for the next client with a savings account to be subjected to those problems so that he or she can pay us to help.

The Code of Professional Conduct states that a lawyer should seek to improve the justice system. The full commentary on this rule is as follows:

R.2 A lawyer should seek to improve the justice system.
C.2 Efforts to improve the justice system, including constructive criticism of its operation and institutions, are consistent with a lawyer's responsibilities to the administration of justice. Legal training and the opportunity to observe the justice system in operation uniquely qualify lawyers to evaluate and seek improvements to that system. The justice system includes not only the courts and the judiciary, but all public institutions involved with the administration of justice such as the legal profession, the police department, and various governmental departments and agencies, including legislative bodies.

Implicit in Rule #2 is the duty to report misconduct by persons connected with the justice system. See also Rule #4 of Chapter 3, Relationship of the Lawyer to The Profession, respecting the duty to report the misconduct of colleagues in the legal profession.

A lawyer's efforts to improve the justice system must be constructive and bona fide in nature. Whether seeking a legislative or administrative change, speaking out against an injustice or perceived weakness in the system or expressing other criticism, a lawyer must act with intelligence, professionalism and due deliberation.

Moreover, the party or parties to whom criticism is expressed must be appropriate under the circumstances. In some instances, this will be the Law Society; in others, the Judicial Council, the police department, the police commission or the media. In deciding whether to publicize criticism through the media, a lawyer must consider all possible consequences, such as loss of control over how the lawyer’s comments are ultimately reported and inability of the subject of the criticism to respond in any meaningful way.

Although proceedings and decisions of the courts are properly subject to scrutiny and criticism by all citizens, a lawyer who chooses to criticize such matters or the judiciary itself must take into account the following considerations:

 an opinion expressed by a lawyer may be given particular weight or credibility due to the lawyer's professional knowledge and connection with the legal system;

 if a lawyer voicing an opinion has been involved in the proceedings at issue, the lawyer's comments may be, or may appear to be, partisan rather than objective; and

 judges are often prohibited by law or custom from speaking in their own defence. In this regard, a lawyer may in some circumstances have an obligation not only to refrain from expressing criticism, but to defend the court if it is the subject of unjust criticism.

Finally, a lawyer seeking reform to the justice system must disclose whether it is sought in the public interest, on the lawyer's own behalf or on behalf of a client, although the name of a client may not be divulged in the absence of express or implied authorization. (see Rule # 2 of Chapter 7, Confidentiality)

It is this commentary which guides my frequent comments to television, radio and print media on criminal justice issues and which motivates me to publish this blog. I know full well that many things I write will not be well-received by authorities such as the Attorney General of Alberta or Calgary's Chief of Police. I suspect individual Crown lawyers and judges before whom I appear will take exception at times to the viewpoints that I espouse.

But, I also expect that sometimes...if I manage to hit a nerve or cause someone to reflect because of something provocative that I have written...my form of public criticism will actually improve the justice system. Legislators may adopt my ideas, police officers might try out a different "roadside manner" with citizens, judges may re-think their approach to bail or sentencing or whatever issue I might be railing about that week.

In my view, failing to engage some form of freedom of expression with a view to improving the system is a failure to effectively uphold one's moral obligations as a lawyer...that much should be clear by now. What causes me even greater concern though is when people in the justice system take active steps to stifle and "shut up" those of us who do choose to speak.

"If you say that, then prosecutors will refuse to give you deals that they would normally give..." "If you write about judicial bias or appointment protocol, then you will lose cases you would otherwise win..." "You'll never be able to get a Q.C. if you criticise the A.G." These are examples of actual things I have heard said by colleagues from time to time.

There can really be no debate that lawyers must comment responsibly on all topics of public interest, and particularly on legal matters. But is there really a legitimate debate about whether lawyers should comment on matters of public interest including legal matters? Will prosecutors really compromise their professionalism because they dislike my opinions? Will judges actually betray their oath of office because I appeal their judgments on the basis of alleged bias? Will the A.G. injudiciously deny a Q.C. application out of personal spite?

If so, then I've got a whole bunch of other highly critical posts to write...

For me, really, the whole issue boils down to this:

1. Lawyers are citizens in the best position to effect positive change in the justice system by creating and fostering public debate of issues that arise in front of us literally every day;

2. As such, we have a responsibility to actually seek such positive change;

3. Positive change often comes out of very negative public opinion or reaction to a particular issue;

4. Lawyers should engage in these discussions (responsibly), not avoid them for fear of reprisal;

5. If we unduly seek to restrict the ability of lawyers to criticize the police, the courts, or any other part of government then we encourage and arguably reward apathy;

6. Apathy is unethical.


I close with a quote attributed to Thomas Jefferson:

We have the greatest opportunity the world has ever seen, as long as we remain honest - which will be as long as we can keep the attention of our people alive. If they once become inattentive to public affairs, you and I, and Congress and Assemblies, judges and governors would all become wolves.

I, for one, intend to do my best to keep the wolves at bay.


Michael Bates
Calgary Criminal Lawyers' Weekly