Lawless Society of Upper Canada

The LSUC’s attempt to make lawyers “promote diversity and inclusion” is lawless and incompatible with a free society

The Law Society of Upper Canada (soon to be renamed something less historic), prepares to require its members ― of whom I am one ― to supply it with

individual Statement[s] of Principles that acknowledge[] [our] obligation to promote equality, diversity and inclusion generally, and in [our] behaviour towards colleagues, employees, clients and the public.

Bruce Pardy has written an excellent op-ed in the National Post to denounce this imposition as an essentially totalitarian attempt at thought control by the legal profession’s governing body. (He and Jared Brown also discussed the issue with Jordan Peterson; I am not fully on board with some of the things said in that conversation, but it is worth listening to.) While prof. Pardy’s op-ed makes the essential points, I will canvass a couple of further issues on this blog. In this post I will discuss the scope of the Law Society’s demand and what seems to me be the lack of legal justification behind it. I will have at least one other post to address the freedom of expression and freedom of conscience issues the demand raises, and probably another one about some broader concerns regarding the regulation of the legal profession.

The first point I want to make here is that it is important to be clear about just how far the purported obligation that the Law Society wants us to acknowledge extends. (I say “purported” because, as I shall presently explain, the obligation is, for the moment, a fictional one.) It is not merely a requirement that we act consistently with the values of equality, diversity, and inclusion insofar as they are embodied in legislation in force for the time being. No “statement of principles” would be necessary to accomplish that. The idea is to make us go beyond what the law actually requires. Yet in a free society people cannot be forced to do things that the law does not require, still less to hold or uphold beliefs.

People in free societies disagree ― including about the value and, even more so, about the scope and implication, of things like equality and inclusion. (Just compare human rights legislation in different jurisdictions. The differences between these laws are testimony to disagreements that can arise even among those who accept the general principle of such laws.) These disagreements are resolved for the time being by the enactment of legislation, and it is antithetical to the Rule of Law to demand that people who might not share the values, or the version of the values, that underpin the legislation in force for the time being act on those values beyond what the legislation actually requires.

Worse yet, the purported obligation is said to exist not only in the course of our practice of law (and any “behaviour towards colleagues, employees, clients and the public” that we engage in qua lawyers), but also “generally”. The fact that, as the Law Society’s “FAQ” repeatedly state, the obligation is said to fall not only on those engaged in legal practice but on all licensed lawyers, including, for instance, those who are retired, reinforces the natural reading of the obligation as covering aspects of our lives that go beyond the practice (and business) of law ― perhaps our every waking moment. This, once again, is utterly at odds with the idea that the demands that a free society makes on its members are limited, and typically do not extend into a certain private sphere, except of course to restrain actions that would actually violate the rights of others.

In concrete terms, I take it that, according to the Law Society, I have a duty to devote my scholarship to the promotion of equality, diversity, and inclusion. Certainly any topics or argument deemed, by the Law Society, to be antithetical to these ideas, would be verboten. Perhaps I must devote my personal life, and not only my professional activity, to the promotion of the Law Society’s preferred ideals. There is, after all, no natural limit to the generality of the word “generally”. Will the Law Society police my Twitter and Facebook accounts to see if they are sufficiently egalitarian, diverse, and inclusive?

The second point I want to make here is that it is not clear what the source of the Ontario lawyers’ purported “obligation to promote equality, diversity, and inclusion” even is. So far as I can tell, neither the By-Laws of the Law Society nor the Rules of Professional Conduct impose one. The closest they come to doing so is in commentary to Rule 2.1-1, which provides that “[a] lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity”. The commentary states that

[a] lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.

Of course, the Commentary is not the Rule. But, in any case, “recognizing diversity”, “protecting human dignity”, and respecting the law ― all in the course of practice of law ― are much lesser obligations than promoting diversity and inclusion, and not only in one’s practice but generally.

Now, the “five strategies to break down barriers faced by racialized lawyers and paralegals” adopted by the Law Society from one of which the demand for a “Statement of Principles” derives, also say that

The Law Society will review and amend, where appropriate, the Rules of Professional Conduct … and Commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal … profession[].

But even if the Law Society “will review and amend” the relevant rules, it does not seem to have done so yet. Thus, quite apart from any substantive issues with the Law Society’s demands, the fact is that the governing body of Ontario’s legal profession is demanding that lawyers “acknowledge” obligations that do not yet exist in law. Since the Law Society is now considering its rebranding options, may I suggest the Franz Kafka Appreciation Society?

But there is more. Even if, or when, the Law Society wants to amend its Rules of Professional Conduct to actually impose an generalized obligation to “promote principles of equality, diversity and inclusion”, it is not clear that will have the authority to do so. The Law Society Act, as it now stands, provides that

[i]t is a function of the Society to ensure that all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide. (Section 4.1(a))

It adds that

[s]tandards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. (Section 4.2.5)

It is not clear to me that the imposition of an obligation to promote certain values, be they ever so laudable, and especially of an obligation that extends beyond the practice of law or the provision of legal services are within the Law Society’s lawful powers under this legislation. The standards of professional conduct that the Law Society is authorized to impose have to be “appropriate” for the provision of legal services (and “should be proportionate” to the objective of regulating the provision of legal services). Admittedly, “appropriate” is a capacious word, and the deferential approach of Canadian courts to reviewing administrative decision-making means that it might take a lot of persuasion to get a court to hold that policing a lawyer’s beliefs and actions unrelated to the actual practice of law is not an “appropriate” way of regulating the provision of legal services. Still, I for one have a hard time seeing how it is appropriate for a professional regulatory body to transform itself into a committee for the promotion of virtue and the prevention of vice and, should it eventually come to litigation, it might be worth trying to raise this argument, in addition to those based on the Canadian Charter of Rights and Freedoms, which I will discuss in the next post.

In any case, quite apart from what the courts may or may not do, the Law Society, if anyone, shouldn’t be trying to strain the limits of its statutory powers. The Law Society Act provides that it “has a duty to maintain and advance … the rule of law” (s 4.2.1), which among other things requires public authorities to act within their lawful powers ― not to test their boundaries. The Rule of Law also prevents public authorities from imposing on those subject to their coercive powers obligations that do not exist in law. On many views, at least, the point of these strictures is to preserve a sphere of autonomy within which individuals can act without being supervised or hassled by the authorities. The Law Society’s attempt to make those subject to its regulations into the torchbearers for its favoured values is at odds with these commitments, which one would hope most lawyers would adhere to even apart from their statutory recognition. One can only hope that the profession will resist its regulators, who have sacrificed their longstanding principles in a quest to make everyone embrace newer and supposedly more progressive ones.

UPDATE: Annamaria Enenajor insists that I was wrong to claim that the Law Society is  demanding that we “supply it” with copies of the “Statement of Principles” that it wants us to produce. I take the point that the Law Society’s explanation does not actually say that we must supply it with our statements. I find the idea that we merely need to tell the Law Society that we have created the statements it demands, without proving that this is so, more than a little odd, which is why it hadn’t occurred to me originally, but it could well be correct. That said, I do not think that whether or not the Law Society wants to see our statements changes anything to the analysis.

Commitment Issues

The Supreme Court has released its judgment in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, holding that some of the obligations which federal legislation intended to combat money-laundering and the financing of terrorism cannot be constitutionally applied to lawyers. It thus (largely) confirmed the decision of the British Columbia Court of Appeal in  Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147 ― but not its reasoning, which had elevated the “independence of the bar” to the status of a principle of fundamental justice protected by s. 7 of the Charter. Having denounced that reasoning as “disturbing,” I am happy to see the Supreme Court reject it, although even its narrower decision is open to some criticism.

The Federation of Law Societies challenged two sets of provisions. One allowed for warrantless searches of lawyers’ offices in the pursuit of information related to money laundering and terrorism financing, with limited protections for solicitor client privilege. The other imposed substantial identity-verification and record-keeping requirements on legal professionals. Neither, the Supreme Court found, could stand up to constitutional scrutiny.

The search provisions, it unanimously found, were in breach of s. 8 of the Charter, which prohibits unreasonable searches and seizures. In Justice Cromwell’s words, the law “authorizes sweeping law office searches which inherently risk breaching solicitor-client privilege,” [35] contrary to the requirements set out in a case decided a dozen years ago, Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61. In particular, there was no notice to the client whose potentially privileged communications with his or her lawyer the government could seek to seize; no opportunity for the client (as opposed to the lawyer), or some independent entity to assert privilege; and no opportunity for a judge to refuse the communication of privileged documents in the absence of a challenge to the communication. Furthermore, the legislation failed to provide that “before searching a law office, the authorities must satisfy a judicial officer that there exists no other reasonable alternative to the search.” [54] These defects made the search provisions unreasonable, and thus contrary to s. 8. Nor could it be justified under s. 1 of the Charter, as the Court had set out some less impairing alternatives in Lavallee ― which Parliament failed to enact.

As for the identification and record-keeping provisions, the Court was also unanimous in finding that they infringed s. 7 of the Charter. All judges agreed that as failure to comply with these provisions exposed lawyers to imprisonment, their right to liberty was obviously engaged. However, they disagreed about the nature of the principle of fundamental justice with which these provisions did not comport.

Importantly, the majority (with which the concurrence does not disagree on this point) does not accept the “independence of the bar” as a principle of fundamental justice. This principle, championed by the Federation of Law Societies and accepted by the Court of Appeal, is capable of very broad application. The federal government argued “that the Court of Appeal’s broad definition of the independence of the bar essentially places lawyers above the law,” [78] a position in which the majority found “considerable merit” [80] although it concluded that it did not need to formally decide the matter. The majority added that although

self-regulation is certainly the means by which legislatures have chosen in this country to protect the independence of the bar … [it did] not have to decide here whether that legislative choice is in any respect constitutionally required. [86]

Rather, for the majority, the principle involved was “that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.” [84] The lawyers’ duty of commitment is, in its view, already a crucial part of the administration of justice in Canada, as part of a broader duty of loyalty, and universally recognized as such. Furthermore, although “this standard is far from self-applying, it has proven to be sufficiently precise to enable the courts to apply it in widely divergent fact situations.” [92] The state, therefore,

cannot impose duties on lawyers that undermine the lawyer’s compliance with that duty, either in fact or in the perception of a reasonable person, fully apprised of all of the relevant circumstances and having thought the matter through. The paradigm case of such interference would be state-imposed duties on lawyers that conflict with or otherwise undermine compliance with the lawyer’s duty of commitment to serving the client’s legitimate interests. [103]

The majority concluded that the impugned legislation did not comply with the principle of fundamental justice it articulated. The legal profession’s self-regulatory bodies have developed standards as to the information that lawyers ought to collect from clients, but the legislation required lawyers to collect much more information than (they thought) necessary in order to ensure ethical and effective representation ― and, potentially, turn it over to the state in breach of solicitor-client privilege. While

[p]rofessional ethical standards … cannot dictate to Parliament what the public interest requires or set the constitutional parameters for legislation[, they] do provide evidence of a strong consensus in the profession as to what ethical practice in relation to these issues requires. [108]

A departure from these standards would create the impression, both in the minds of (reasonable) lawyers and their (reasonable) clients, of a potential conflict with the lawyers’ duty of commitment.

The concurrence (the Chief Justice and Justice Moldaver) thought that respect for that duty is too vague a requirement to amount to a principle of fundamental justice. Because the nature of a lawyer’s duty to his or her client depends on “the nature of the retainer … as well as … other circumstances … [i]t does not … provide a workable constitutional standard.” [119] Instead, the concurrence would have considered the respect of solicitor-client privilege as the principle of fundamental justice involved.

Some of the initial reactions I have seen were also critical of the majority opinion’s recognition of the duty of commitment as new principle of fundamental justice. For my part, I think that Justice Cromwell provides a pretty compelling argument in its defence. That a lawyer ought to be, and appear to be, committed to his or her clients’ interests and to no others’ is surely a well established principle in our legal system, and at least arguably a fundamental one. It would indeed be troubling if the state were able easily to interfere with that duty.

What I find more troubling is the majority’s application of the principle it identifies. Mostly, that’s because, although Justice Cromwell says that standards adopted by professional self-regulatory bodies “cannot … set constitutional” requirements, they seem to have exactly that effect in his reasons. If a requirement that lawyers depart from professional standards is inherently constitutionally suspicious, then I fail to see how the professional standards are not becoming, ipso facto, constitutional ones. And I don’t think that it is right that ethical standards developed by professional regulatory organizations can, by virtue simply of existing, acquire such a status.

I am greatly relieved, however, the the court all-but-rejected enshrining a (potentially) expansive view of the independence of the bar as a constitutional principle. As important as it is for lawyers to have the freedom to zealously represent unpopular clients, including against the government, it is at least not obvious that the cartelization of legal services and consequent impediments to access to justice, in which the self-regulation of the legal profession results, is necessary for this pubic good to be achieved. It is very good news indeed that the Supreme Court has not committed us to that regulatory approach.

A Chance for Justice

I have written a good deal about access to justice and the related issue of self-represented litigants. These problems are very difficult; I doubt that any quick solutions can be found for them, and it doesn’t help that, as I wrote here, the complexities that must be dealt with are often forgotten. These problems are also very old, and a look at one historical attempt to deal with them illustrates, I think, the unlikelihood of simple solutions being sufficient.

Jeremy Bentham’s “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145) is best known for its savaging of the common law as “dog law:

It is the Judges … that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does something you want to break him of, you wait till he does, and then you beat him for it. This is the way you make laws for your dog; and this is the way Judges make law for you and me. They won’t tell a man beforehand what it is he should not do―they won’t so much as allows of his being told; they lie by till he has done something which they say he should not have done, and then they hang him for it (148).

What is less well known, I think, is that much of “Truth versus Ashurst” is actually a diatribe about what we today would call access to justice. It begins by denying Justice Ashurst’s assertion that “no man is so low as not to be within the law’s protection.” No, says Bentham, “every man is, who has not from five-and-twenty pounds” ― more, Bentham says, than three times an average person’s annual income ― “to five-and-twenty times five-and-twenty pounds to sport with, in order to take his chance for justice” (145). The Magna Carta promised that justice would not be sold, but “the good King George” does not keep the promise made by “the wicked King John” (145). (This is something for the Supreme Court to keep in mind, by the way, as it considers the constitutional challenge to the “hearing fees” imposed by British Columbia on litigants who seek justice in its courts.)

But the cost of judicial proceedings isn’t not only problem which Bentham bewails. For one thing, he laments, even if a litigant goes to the expense, he can’t be sure of winning; be his right ever so clear, he can easily end up losing on a technicality. And then there are “[t]he lies and nonsense the law is stuffed with, [which] form so thick a mist, that a plain man, nay, even a man of sense of learning, who is not in the trade, can neither see through nor into it” (145). Even if people were allowed to represent themselves, which more often than not they weren’t, they couldn’t hope to succeed under such circumstances. And even that wordy, obfuscating law isn’t at all accessible. Reports of judicial decisions are few and inaccurate; judges detest them and can treat them as contempt of court. Indeed judges themselves have only a faint idea of what the law really is ― that’s where the “dog law” rant comes in: judges don’t tell us what the law is until one of us has broken it and it’s too late, for him at any rate.

So Bentham has a pretty simple solution: codification. Take what little is good in the common law and make it into statutes. “[I]f what is common … to every class of persons were put into one great book, (it need not be a very great one) and what is particular to this and that class of persons were made into so many little books, so that every man should have what belongs to him;” (149-50) and if these books were written in clear language, in “sentences of moderate length, such as men use in common conversation” (150); and if the contents of the great book were publicized, and taught, and “if every boy when he came of age were to produce a copy of it written with his own hand before he were allowed a vote or any other privilege,” (150) then everyone would know the law, and could be his own lawyer. And thus we would be “deliver[ed] out of the clutches of the harpies of the law.”

Well, that didn’t work out. France, Germany, and other civil law countries are not out of the clutches of lawyers. Codes still need judges to interpret them and lawyers to argue about these interpretations. In common law jurisdictions, statutes have proliferated ― and so has case law. Now the case law is easily accessible these days, thanks to CanLII and its equivalents elsewhere, but its sheer volume makes it difficult for laypersons to make sense of it, or of legislation for that matter. And, though we have (some) legal aid now, the cost of legal services is still prohibitive for many, many people.

The point is not that we should throw up our hands. I think that things are at least a little better than they were in the bleak picture Bentham paints (though he was rather fond of bleak pictures, so one wonders whether it is quite faithful to the reality of his time). But we should be wary of easy fixes; they are not likely to succeed. It will take a lot of hard thinking and hard work to give everyone a chance for justice.

Dirty Laundry

Can the state enlist lawyers to help it crack down on money laundering in which their clients might be involved? This was the question addressed by the B.C. Court of Appeal in Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147, an important judgment delivered last week. Elevating the independence of the bar to a constitutionally enshrined principle of fundamental justice, the Court held that only law societies, not the government, could force lawyers to keep and eventually to hand over records of financial transactions.

The legislation at issue required lawyers and law firms, as well as other professionals, when acting as financial intermediaries for their clients, to keep records of transactions, and made it possible for the federal agency responsible for preventing and combating money laundering to access the lawyers’ offices and computers without a warrant in order to review the documents kept there, subject to the lawyers’ ability to challenge request for the documents covered by the solicitor-client privilege. The information obtained from the lawyers could then be transmitted, on certain conditions, to law enforcement.

The Federation of Law Societies of Canada (FLSC), which consists of the 13 provincial and territorial bars and Québec’s Chambre des Notaires, challenged its constitutionality as applied to legal professionals. They succeeded at first instance on the basis that the legislation authorized violations of the solicitor-client privilege, which Canadian courts had already recognized as a constitutionally protected principle of fundamental justice. The Court of Appeal, however, rested its judgment on a broader foundation: the independence of the bar, which it held was also a principle of fundamental justice protected by s. 7 of the Charter.

One preliminary issue that the court had to address was the factual foundation of the Charter challenge. No lawyer had actually been accused under the impugned legislation; the attack on it was entirely preventive. The Court held that this did not matter, pointing to the voluminous record of social science evidence about the purpose of the legislation at issue that was before the judge of first instance. Another concerned the interpretation of the legislation―the government argued that it did not go so far as the FLSC contended, but the Court rejected that submission. Yet another preliminary issue was whether the liberty interests of clients, as well as lawyers, were engaged. The Court split on this point, the majority holding that they were because information collected by or seized from lawyers could serve in the prosecution, and eventual imprisonment, of clients, while the concurrence found the connection too remote to be significant.

On the main question, whether the potential deprivation of liberty of lawyers under the legislation was in accordance with the principles of fundamental justice, as required by the Charter, the Court was unanimous. It held that, although this was not yet at “settled” matter, “the independence of the Bar” is a principle of fundamental justice.  Pointing to a number of judicial decisions recognizing the value of an independent Bar, the Court concluded that it “has long been recognized as a fundamental feature of a free and democratic society” (par. 107) and an element of the Rule of Law (par. 111). It further held that the independence of the Bar was a sufficiently precise standard against which to assess legislation: “the independence of the Bar consists of lawyers who are free from incursions from any source, including from public authorities” (par. 113). Because the anti-money-laundering legislation “will turn at least some lawyers into agents of the state” (par. 124) for the purpose of collecting information about their clients, it infringes the independence of the Bar and thus s. 7 of the Charter.

The final issue for the Court was whether this infringement could be justified under s. 1 of the Charter. In most s. 7 cases, analysis on this point is almost perfunctory; it is difficult to imagine how an infringement of “principles of fundamental justice” could ever be “demonstrably justified in a free and democratic society.” Here, unusually, the s. 1 analysis was actually longer than that on s. 7, but the conclusion was still the expected one. The Court held that there existed an effective alternative to government regulation infringing on the independence of the Bar: regulation by law societies. The fact that the government appeared to accept the idea of outsourcing some control functions to the law societies only supported this conclusion. Since there existed a constitutional alternative to the government’s chosen regulatory approach, it was not minimally impairing of the rights at stake, and thus not justified under s. 1 of the Charter.

Although the Court’s reasoning seems like a logical extension of the cases which it cites, I find the decision disturbing.

First, as for example with the Québec Bar’s challenge to the constitutionality of the federal government’s “tough on crime” legislation (about which I wrote here), I am uneasy at constitutional challenges that divorced from specific factual situations and involve only “legislative,” contextual facts. It seems to me that such cases call into question the specifically judicial nature of judicial review of legislation; they make courts into legislative rather than judicial bodies.

Second, and perhaps more importantly, I am also very uneasy at the idea of constitutionalizing the “independence of the Bar.” It is true that the existence of lawyers willing to take on unpopular cases, including cases opposing citizens to the government, is important to the preservation of freedom and of the Rule of Law. But is it necessary, to grant constitutional protection to the law societies―legally sanctioned cartels which exist for the purpose of propping up the income of their members, whatever their rhetoric about access to justice which the higher prices they impose impede? Could this constitutional status be used to challenge an eventual law (unlikely, alas) liberalizing the market for legal services and reducing or even eliminating the Bar’s monopoly? It would be a sad outcome if debates about such legislation were prevented by the collusion of the Bar and the judiciary. Finally, I would note that the judiciary accepts, as a necessary corollary of its independence, a duty of reserve―the idea that judges must be politically neutral and indeed abstain from commenting on most issues of public concern (except arguably those that have to do with the organization of and access to courts). Is the Bar prepared to pay the same price for its independence? The activism of Québec’s Bar certainly suggests that it is not. And, while I think that the Québec Bar’s transformation into a public interest litigation outfit akin to the Canadian Civil Liberties Association is a bad idea, I don’t think that lawyers ought to be as neutral as judges. But then they should not try to have their cake and eat it too.

The BC Court of Appeal does not think so, it would seem, though I wonder to what extent it actually thought through these questions. For the Court, lawyers are constitutionally entitled to do their own dirty laundry.

In Cautious Praise of Rhetoric

Rhetoric―the art of packaging one’s arguments so as to make them more attractive―has a bad name. It is associated with deceit at worst, and meaninglessness at best. It is seen as a distraction. Why should we care about the way arguments are packaged―surely what really matters is their substance? A student put something like this question to me last week when I gave a guest-lecture on constitutional interpretation at McGill, my alma mater, and exhorted students not describe legal principles on which they rely as “penumbras formed by emanations,” as Justice Douglas does with the right to privacy in Griswold v. Connecticut, 381 U.S. 479 at 484 (1965). Why does the inelegance of this formula matter? And even if it does, isn’t that something we should regret and push back against?

Now there are plenty of areas where rhetoric has no place―in pure sciences for example, or even, I think, in social sciences such as economics. In these disciplines, what matters is only that an argument be right. And―and this is a key point―in these disciplines there are generally accepted ways for telling which arguments are right, and which are not. But law is a different beast.

The reason why rhetoric is important in law has to do with what Jeremy Waldron describes, in his great paper on “The Concept and the Rule of Law,” as “the law’s argumentative character.” Law is essentially, by its very nature, a matter of debate and dispute. Even when we talk about what the law is, rather than what it ought to be, we frequently disagree. This is not to endorse the “critical” claim that law is always indeterminate, so that we never know what it is. We often do know, and we often agree about what we know. But there are also plenty of times when we think we know―and other people think they know the exact opposite. And there is no way to tell that a contested proposition of law is correct, even a judgment of a supreme court. As Justice Robert Jackson famously pointed out in Brown v. Allen, 344 US 443 at 540, “We are not final because we are infallible, but we are infallible only because we are final.”

The law’s being an “argumentative” practice is reflected in the elaborate institutions and procedures that we have for giving people a chance to state their views on what the law is. We let people state their views about what the law applicable to their case is, in writing or orally, and often (especially on appeal) both; we let them―and sometimes pay for them to―hire a professional who will present their views to the court. And we expect judges to respond to these views when giving reasons for their decisions. This is not just because being able to speak out makes people feel better. Perhaps it does, but there’s little good in speaking while knowing that whatever one says, the opinion of the listener will not change. The reason for our legal procedures is that we want to give parties to legal disputes a chance to persuade those who will resolve their differences. (Some time ago, I already wrote at some length about “The Forms and Limits of Persuasion” in legal disputes.)

Rhetoric is essential to law because it is an instrument of persuasion. If it is used properly―more on that shortly―it is, if anything, a sign of respect for the intended audience of one’s legal arguments (judges for a lawyer or a litigant; litigants, especially unsuccessful ones, and the public for judges; fellow-scholars and, hopefully, judges for academics). Using rhetoric is telling the people who read you that you take them seriously enough to try to persuade them; failing to use rhetoric is telling them that you either think them too prejudiced to change their minds or don’t believe that their opinion matters enough to try changing it.

But what of the concerns with rhetoric that is insincere? What of the fact that rhetoric is power over those swayed by it, and this power, like any other, tends to corrupt? Part of the answer to these concerns lies, again, in our procedural arrangements, which allow argument to be met with argument, and rhetoric with rhetoric. Parties to disputes can counter the claims of their opponents. Judges, in multi-member panels that typically decide appeals, have the possibility to dissent from the panel’s decision, and respond to its assertions. And of course academia, the press, and civil society (hey, even bloggers!) can also expose the fluff in judicial decisions.

Still, it is important to recall that with power comes responsibility. So while it is proper―and even necessary―to make one’s legal arguments as persuasive and as attractive as possible, there is no justification for lying or even trying to mislead. Professional norms are different for lawyers, judges, and academics, but none of them are justified, for example, in distorting the import of cases they cite. And academics and judges, in particular, should acknowledge the arguments contrary to theirs, even if they reject them.

But there are many ways to say the truth, or what a reasonable person can honestly believe to be the truth. The argumentative nature of the endeavour lawyers are engaged in requires them to choose that which will persuade. Rhetoric is an art, not a dirty trick.

Legal Self-Services, Part Deux

Just a follow-up to yesterday’s post about the impact of a “self-service mentality” on the legal profession. This mentality, I suggested, is part of what explains the surge in self-representation. Josh Blackman, of South Texas College of Law, says something similar in a blog post, but his perspective is different and more optimistic. Prof. Blackman points out that “[t]he very same generation of law students who like to do things ‘self-service’ are also the MBA students who will want to obtain legal services in that fashion.” He thinks that self-service-oriented lawyers will be better positioned to meet that demand.

That’s correct I suppose. And it may well be that sophisticated clients can use the legal self-service to their advantage. Perhaps – indeed, hopefully – the self-service model can be adapted for “ordinary” litigants as well, allowing them to benefit from a form of professional help without having to pay the full price if they cannot afford to. The trouble, however, is that those who are categorically averse to paying for legal services because they think they can learn all they to know about the law on their own – which, I am sure, is the case of more than a few, though probably a minority, of self-represented litigants – will not take advantage of the self-service model.

The self-service mentality is already changing the legal profession and affecting the access to justice problem, and its effects will only become stronger. It is change both for the better and for the worse.

Legal Self-Services

Jim Gardner, of SUNY Buffalo, has an interesting post at The Faculty Lounge, arguing that

[t]he capacity to acquire information, shop, travel, and do almost anything without human intermediation is conceived as a right, or at least a new baseline norm.  Insistence upon the necessity of human interaction as a condition for completing a transaction is now the deviation requiring justification.  At the same time, whether human adjuncts to transactions add value seems to be a matter of deep skepticism.

This certainly rings a bell. For what it’s worth, I usually prefer finding information myself (online) to asking for it; I am annoyed when I have to go to a bank teller instead of just using an ATM; and so on. (Though, unlike in prof. Gardner’s most extreme example, I have not taken to resolving disagreements with my room-mate via texting.) In prof. Gardner’s view, this creates problems for legal education (because students are skeptical about the value of human educators and advisers) and is bound to create problems for lawyers who, imbued with this self-service mentality, might lack the personal skills necessary to be professional, effective “human adjuncts”.

But there is another way in which the self-service mentality is already affecting the legal profession. As anyone involved with the legal system probably knows, it is increasingly common for litigants to represent themselves, causing no end of grief to themselves and serious troubles to lawyers and judges who have to deal with them. And while the cost of legal services, and lack of funding for legal aid (especially in civil matters) is a major cause of this problem, it is not the only one. People choose to forego professional assistance, even when they could afford it. They take false confidence from the availability of a great deal of legal information on the internet. The emergence of the self-service mentality described by prof. Gardner helps explain why.

But although share that mentality myself, it is important to stress that when it comes to law – as probably in at least some (though surely not all) other areas – it is a dangerous one. For people who choose to represent themselves rather than rely on a lawyer, consequences tend to be sad. As I wrote here,

law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

As I said back then, if you can help it, don’t try it at home.


My apologies for the lack of posts lately. There seems to be little going on worth posting about, or perhaps my brain is in aestivation.