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.

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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.

Don’t Try This at Home

I had missed this story when it came out, but better late than never. The CBC reports on the work of a Windsor Law professor, Julie Macfarlane, according to whose estimation “up to 80 per cent of people in family court and 60 per cent in civil cases represent themselves.” This is is, as she says, “huge,” and creates all sorts of problems for the system, which did not develop with self-represented litigants in mind, and of course for the self-reps themselves. They are, more often than not, bewildered by the process, and emerged frustrated. The report quotes prof. Macfarlane as saying that “[s]ome people feel so burned by this process they need counselling. They’re feeling so emotionally overwhelmed, they need more than legal advice.”

Prof. Macfarlane finds that this wave of self-representation has two main causes. The obvious one is that budgets for legal aid, especially in civil matters, are extremely tight. But the other, says she, is that “[m]any people who, in the past, may have decided they could pay for a lawyer if they scrimped and saved on something else, are increasingly coming to the conclusion that, given the amount of information on the internet, perhaps they can do this for themselves and save a great deal of money in the process.”

That is quite ironic, since the accessibility of legal information is supposed to make “access to justice” easier. But 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.

That’s not to say that CanLII should shut down. It is a precious resource, for lawyers and others alike. But it has a perhaps non-obvious downside, of which we should also be aware.

In fact, the whole issue of self-represented litigants and access to justice abounds in complexities that are forgotten more often than they should be. Continue reading “Don’t Try This at Home”