Wednesday, August 14, 2019

Is it "Professional Misconduct" for a Lawyer to Comment on a Judge's Unfairness ?

In Dore  v.  Barreau du Quebec [2012] 1 S. C.R. 395 the Supreme Court of Canada pronounced that:

"In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular.  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion."

The Supreme Court of Canada stated:  "Proper respect for these expressive rights may involve bodies tolerating a degree of discordant criticism.  The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter."

The Ontario Court of Appeal had the following to say in Amato  v.  Peske 2010 ONCA 708:

"There are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.  Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure. 

Prohibited Conduct

A licensee shall not engage in professional misconduct or conduct unbecoming a lawyer.

s.33  The Law Society Act

With the authorization of the Proceedings Authorization Committee, the Society may apply to the Tribunal for a determination by the Hearing Division of whether a licensee has contravened section 33.

s.34 The Law Society Act

The Conduct:

1.  "Well, your Honour, I think you should give some thought to what you are doing, because you're trying to derail me".

2.  "Your Honour, you've got to - you've go to do you job now.  She - he asked that, and she said, five times. I mean come on."

3.  "Your Honour, I would have thought that you would've intervened, as the trial judge, but what's the purpose of this ?

4.  "I don't think you're listening to me very carefully, so I'm going to be very precise."

The learned trial judge made no complaint in court.  The learned judge made no complaint to the regulator. The learned trial judge went on to fully exonerate my client.

Guarantees for the functioning of lawyers

Governments shall ensure that lawyers(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Basic Principles on the Role of Lawyers - United Nations

1 comment:

  1. Lawyers must have the right of speaking truth to people with power, or our defense effort is completely eviscerated!!!