By: Alice Woolley

PDF Version: Is a Bad Lawyer a Bad Person?

In 1976 Charles Fried famously asked, “Can a good lawyer be a good person?” (“The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale LJ 1060 at 1060).

Law and morality are distinct. As a consequence, lawyers sometimes represent bad people, and sometimes help people do bad things. There is thus a legitimate question about whether being a lawyer is consistent with an ethical life. Nonetheless, Fried answered his question “yes”. Because of the law’s legitimacy and justification, a lawyer who assists people to pursue their goals and interests through the law can be – is – a good person. She does a job worth doing. Continue reading →

By: Alice Woolley

PDF Version: Ontario’s Law Society: Orwell’s Big Brother or Fuller’s Rex?

On September 13, 2017 Ontario’s Law Society with no name sent a now infamous e-mail to its licensees stating:

You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.

While some have defended the Statement (see Omar Ha-Redeye here on SLAW and Renatta Austin’s comments on The Current) most commentary has been harshly critical.  Bruce Pardy on The Current called it “the most egregious kind of violation of freedom of speech…this is the authorities requiring you to say what it is that they want to hear”. In an editorial in the National Post Pardy described it as “[f]orced speech” of the type that would be imposed in North Korea.  In his view the Statement “effectively prohibits Ontario lawyers from engaging in…debate” around the “contours of anti-discrimination laws”. In an equally histrionic editorial in the Globe and Mail, Arthur Cockfield described the Statement’s “chilling Orwellian language” and claimed that it would prevent lawyers from representing certain types of clients, like a person who was charged criminally after calling for the imposition of sharia law. And even Conrad Black saw fit to unleash a polysyllabic spree against the Law Society’s initiative, decrying the Law Society for taking “unto itself the totalitarian power to exclude or otherwise punish anyone who declines to declare total fealty to principles enunciated by the professional self-regulator”. Black went on to condemn the whole lot of us as “a largely venal association of self-serving gougers riveted on the back of society and dispensing a hideously bloated service on a defenceless public as the lawyers jubilate in their 360-degree cartel.” Continue reading →

By: Alice Woolley

PDF Version: In Defence of Lawyers Who Lose

Case Commented On: Engel v Edmonton Police Association, 2017 ABQB 495 (CanLII)

In September 2008 the Edmonton Police Association published an article on its website about cases brought to the Law Enforcement Review Board by Edmonton lawyer Tom Engel, his law firm, and the Edmonton Criminal Trial Lawyers’ Association. The Law Enforcement Review Board is the independent quasi-judicial body charged with hearing appeals related to complaints from the public about police officers. The Police Association article claimed that Engel’s firm before the Board was “O for 28!”, that it had a “dismal record” and that in “more than a third of the cases” the firm “started something and failed to finish”: “After 28 incidents of cry wolf, when does someone call B.S.?” (at para 40). The article went on to ask whether this was “incompetence”, “extreme incompetence” or whether “something else was going on here” and queried, “when do these complaints and appeals become frivolous and vexatious?” (at para 41). Continue reading →

By: Alice Woolley

PDF Version: Law and Morality: Reflections on the Angela Cardinal Case

What constrains lawyer conduct? I don’t mean in terms of positive law – i.e., the codes of conduct or the decisions of the court. I mean at its source – what is the bottom line restriction on a lawyer’s professional role? I’ve been thinking about this question a great deal following the story of Angela Cardinal– the sexual assault victim who was incarcerated for 5 nights to ensure her testimony in a preliminary inquiry (trial judgment here; media reports here and here). If what happened to Angela Cardinal was wrong (and I think it’s hard to argue that it wasn’t), and if what happened to her involved lawyers (which it did), then how can we identify the constraints on lawyer conduct so as to help them not to do such things? Continue reading →