Thursday, December 20, 2007

Lawyers' Ethics and Freedom of Speech

It appears to be Freedom of Expression Week here at the blog, and obliges by chronicling the professional discipline troubles of two lawyers who may have said too much.

Each faces professional conduct sanctions after publicly rendering a harsh and highly personal criticism of a judge.

A Manitoba lawyer tested ethical limits the old-fashioned way - by letter sent to colleagues, while a Florida attorney, opted for "Judicial Criticism 2.0," via a blog:

Attorney Whose Blog Post Blasted Controversial Judge Fights Bar Investigation

Do lawyers check their free speech rights at the courthouse? That's what some wonder now that a defense attorney faces charges for blog comments he made about a Florida judge. Constitutional experts say attorneys give up the full force of the First Amendment when they join the Bar, but some lawyers say they have every right to speak their minds. The debate resurfaced after the State Bar found probable cause against the attorney for calling the judge an "evil, unfair witch" who is "seemingly mentally ill."

Canadian Lawyer Guilty of Unprofessional Conduct for Calling Judge a Bigot

A Winnipeg lawyer has been found guilty of professional misconduct for calling a judge a bigot in a letter sent to several colleagues. The Manitoba Court of Appeal upheld the ruling in a decision released Tuesday. Robert Ian Histed claimed he did nothing wrong and was simply exercising his freedom of expression under the Charter of Rights and Freedoms. He also accused the Law Society of Manitoba of breaching his privacy rights by allowing the letter to be used as evidence against him.

Ontario's lawyers are governed in this regard by Rule 4.06 of our Rules of Professional Conduct:


Encouraging Respect for the Administration of Justice

4.06 (1) A lawyer shall encourage public respect for and try to improve the administration of justice.


The obligation outlined in the rule is not restricted to the lawyer's professional activities but is a general responsibility resulting from the lawyer's position in the community. A lawyer's responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet for the same reason, a lawyer should not hesitate to speak out against an injustice.

The admission to and continuance in the practice of law implies on the part of a lawyer a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system. However, judicial institutions will not function effectively unless they command the respect of the public, and, because of changes in human affairs and imperfections in human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it.

Criticizing Tribunals - Although proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, judges and members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers. First, a lawyer should avoid criticism that is petty, intemperate, or unsupported by a bona fide belief in its real merit, bearing in mind that in the eyes of the public, professional knowledge lends weight to the lawyer's judgments or criticism. Second, if a lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective. Third, where a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to and should support the tribunal, both because its members cannot defend themselves and because in doing so the lawyer is contributing to greater public understanding of and therefore respect for the legal system.

A lawyer, by training, opportunity, and experience is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions, and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.

- Garry J. Wise, Toronto

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