Misplaced Zeal

In a post at Slaw, Alice Woolley argues that lawyers’ state of mind, and in particular their personal commitment to the causes they are asked to represent, should not factor into an assessment of whether they are acting ethically ― and further, that this logic applies not only to lawyers’ representation of clients, but also to their compliance with other obligations requiring them to take particular positions, such as the Law Society of Ontario’s “statement of principles” policy. Though no legal ethicist myself, I am inclined to agree with Professor Woolley general point that a lawyer’s advocacy need not be anchored in a personal commitment to a cause ― but only so far as advocacy on behalf clients is concerned. Advocacy outside the context of legal representation, where the lawyer is acting on someone else’s behalf, is a different matter. Professor Woolley’s conflation of these two contexts is, in my respectful view, a serious mistake.

Professor Woolley gives the examples of hypothetical lawyers who undertake to represent clients for reasons that have nothing to do with a personal commitment to their causes. They want to get paid and cannot think of a better way to make their living (or at least, as good a living as the practice of law allows them), and care little for the justice of their clients’ cases. They are, however, competent and hardworking, and successful as a result. These lawyers, Professor Woolley argues, are not truly “zealous” advocates ― they feel no particular zeal ― but it would be wrong to think of them as unethical. “Lawyers’ ethics”, she insists, “are about acting as required by their role and professionalism, not personal belief or commitment.”

That seems right to me. A system of professional ethics that required lawyers to wholeheartedly embrace their clients’ cases would be both unattractive and impracticable. Many clients would have to be unrepresented, because no lawyer would agree with them, while professional regulators would have to become inquisitors to find out how lawyers well and truly felt. Note, though, that so far as the Model Code of Professional Conduct of the Federation of Law Societies is concerned, the idea that representation must be “zealous” is only a gloss, and as Professor Woolley shows an unfortunate gloss, on the actual rule, which rather requires it to be “resolute”. (5.1-1) Professor Woolley argues that her hypothetical halfhearted lawyers are not “resolute”, but I’m not sure about that. To the extent that they work hard and diligently pursue whatever recourse is open to their clients, without regard to their own feelings about them, I would not describe them as lacking in resolve, though this is a point about semantics and I don’t think much turns on it.

Be that as it may, as Professor Woolley suggested I might, I think that the position of lawyers who are not engaged in advocacy on behalf of clients is different from that of those who are. Lawyers arguing clients’ cases are widely understood not to be presenting their own views; conflations of the lawyers’ positions with the clients’ are routinely criticized by lawyers and others ― for example when judges or politicians with experience as criminal defence lawyers are (mis)represented as approving of the crimes of which their former clients were accused (and in many cases guilty). Acting as an advocate for a client, a lawyer is a mouthpiece, a hired gun; the rules of professional ethics not only do not require him or her to inject personal approval into the representation, but positively forbid injecting disapproval.

Outside the special context of client representation, however, these understandings and rules do not apply. Indeed, the Model Code‘s the requirement of resolute advocacy applies specifically in that context: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law” (emphasis mine). The rule does not speak to the lawyer acting as an individual, a citizen, with something of his or her own to say. When expounding and advocating for their own views, lawyers are, it seems to me, held to the same expectations of integrity as other people. If a lawyer gives a talk at a bar association event on the importance of access to justice, yet charges exorbitantly high fees and never undertakes any pro bono work, that lawyer deserves to be condemned as a hypocrite ― even though such a condemnation would be quite inappropriate in response to the same lawyer’s invocation of access to justice in argument on behalf of a client. The same goes for advocacy of any other ideal or value, including of course those referred to in the “statement of principles” policy ― equality, diversity, and inclusion. A lawyer advocating for these things without actually believing in them is a hypocrite whom right-thinking members of society are entitled to condemn.

I’m not sure whether Professor Woolley actually disagrees with this view, in the abstract. Yet she thinks that it is inapplicable to the situation of the Ontario lawyers whom the Law Society wants “to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public”. That’s because “the Statement of Principles is not about lawyers doing things on their own behalf, but rather on the profession’s.” In effect, by requiring us to produce this statement, the Law Society has enlisted us all as advocates for its own views, so that the norms of advocacy, of client-representation, apply.

Now, I do not think that the Law Society itself understands its policy in this way. When the “statement of principles” was first introduced, the Law Society explained that “[t]he intention” behind it “is to demonstrate a personal valuing of equality, diversity, and inclusion” (emphasis mine). Subsequently, it backtracked on this and claimed that requiring lawyers to “promote equality, diversity, and inclusion” “does not create any obligation to profess any belief or to seek to persuade anyone about anything”. If the former view of the “statement of principles” ― contradicted but never withdrawn from the Law Society’s website ― still holds, then, contrary to what Professor Wolley says, it is very much “about lawyers doing things on their own behalf”, albeit at the regulator’s behest. If the subsequent view is correct ― though I find it implausible, and the Law Society itself refused to make it the basis of a settlement of the challenge to the “statement of principles” brought by Ryan Alford and the Canadian Constitution Foundation ―, then lawyers are not asked to be advocates either on their own behalf or on the Law Society’s.

But suppose that the Law Society is, in fact, seeking to enlist the lawyers subject to its regulatory power as advocates for its own views, as Professor Woolley thinks. This would be a startling proposition. Unlike in any other case of representation, lawyers do not consent to this “retainer”. Unlike with any other client, they are not given a choice to decline representation if they find the client or the cause unacceptable, or simply beyond their availability or ability. Nor are they permitted to withdraw. They are, in a word, conscripted, coerced to act for the Law Society on pain, for most of them, of losing their livelihood. All the arguments against conscription, both deontological (it is simply wrong for one person to use other persons for his or her own purposes in this way) and consequentialist (conscripts are unlikely to provide good service), apply.

And why exactly is this conscription necessary? The Law Society is sufficiently well-heeled, what with charging over $1200 a year to members like me who are not even practising law, and double that to those who are, not to need pro bono representation. Lawyers are not even required to provide free representation to those who desperately need and, thanks in part to the Law Society’s cartelization of the legal services market, cannot afford it. Why is it entitled to something those in more need lack? Why does it need thousands upon thousands of (free) lawyers ― more than any client in the history of the universe ever had?

Moreover, there appears to be no limiting principle to the idea that the Law Society is entitled to conscript lawyers to represent it. If it can force us to advance its views and objectives with respect to “equality, diversity, and inclusion”, why not on other issues? If the Law Society comes to the view ― perhaps a not unreasonable view ― that its interests would be better served by the government of Ontario being formed by a given political party, can it mandate lawyers “promote” this party’s electoral fortunes? Can the Law Society, instead of hiring consenting lawyers ― and, presumably, paying them ― to defend its policies against Professor Alford and the CCF simply command some to work for it nolens volens? This would, to repeat, be a startling view ― and, to repeat also and give the devil its due, the Law Society itself does not take a position that commits it to advancing it ― but it seems to follow from Professor Woolley’s argument that there us “no regulatory impropriety in requiring” lawyers to advance particular views and values “to pursue the profession’s objectives”.

Professor Woolley is right that whether a lawyer’s heart is in his or her work for a client, or merely his or her brain and sitzfleisch, is irrelevant. But this is not true of the lawyer’s expression of his or her own views, where a lawyer is no more permitted to be hypocritical than any other person. Opposition to the Law Society’s “statement of principles” requirement proceeds in part from a sense that accepting it would require commitment to “equality, diversity, and inclusion” regardless of whether one adheres to these values (and arguably, more specifically, to how they are understood by the Law Society) ― and therefore, in many cases, hypocrisy. Professor Woolley claims that this is not so, because the requirement has nothing to do with personal belief, and is in effect a forced retainer of every licensed legal practitioner by the Law Society. Yet the Law Society does not think so. A power to conscript its members in this fashion would be an extraordinary one, and is quite unjustified in a free society. I see no reason to believe that it exists. Professor Woolley’s zeal in defending the Law Society is misplaced.