19:31 Bog emedia.captus.com/epub/etc . . 11. Lawyers, Advocates, and Legal Practice society. Some lawyers- by any account very few - lies in the idea of lawyers exercising their power "in abuse their power and violate the trust of their cli- the public interest". Whether lawyers in Canada are ents and the trust that society has given the legal living up to that mandate remains an open question. profession. The theoretical source of lawyers' power (b) Who is Afraid of the Big Bad Social Constructionists? Or Shedding Light on the Unpardonable Whiteness of the Canadian Legal Professiont Charles C. Smith I. INTRODUCTION where I support their efforts to form a national sec- In 2005. I was asked to participate in a session retariat to identify, challenge, and climinate hate and entitled, "The Implications of "Bleached-Out' Profes- racism in Canada. sionalism for Racialized Lawyers and Communi- It is for these reasons that I questioned the tics," which was one of the former Chief Justice topic of this session. There are two notions which of Ontario's forums to discuss contemporary issues are at issue here. One is that "Bleached-Out Pro- within the legal profession.' At the time, I remarked fessionalism" suggests eradicating stains or foreign that the title of this forum is one of those meta- elements in order to return to or "create" a more phors that seems easy to grasp. Most of us are homogenous, uniform construction. And this is aware of efforts within the legal profession, including exactly where the second contentious issue emerges. law schools, law firms, the courts, and so forth, to I shall phrase it in the form of a question: Assum- diversify their representation so that it is more inclu- ing that "bleaching" renders its objects white, when sive of the racialized and cultural makeup of the was the legal profession not bleached?' Was there broader society. The record of positive intention has ever really a need to "bleach" it? Or would it been and continues to be articulated repeatedly in not be more important to talk about "unbleaching" studies, reports, policies and programs that are writ- the profession, particularly now given the challenges ten, developed, and implemented by law schools, law faced by Aboriginal peoples and subordinate societies, legal associations, and law firms. Since the racialized groups who enter it? 1993 report of the Task Force on Gender Equality in Looking at the faulty metaphor conjures up the the Legal Profession, chaired by Bertha Wilson J. (as great difficulty the legal profession has in talking she then was)," a considerable number of these about race and racism in society generally, and reports and studies have been published.' within its ranks in particular. Rather than talk about Over the past eight years I have had the benefit race and racism directly, problematic metaphors are of working in three legal associations on these issues. used. Given the rather undramatic increase in the I have also provided advice and services to several numbers of Aboriginal lawyers and lawyers from law firms and legal associations. Through all of this, subordinate racialized groups, one would think this I have gained considerable insight into the challenges issue would be named directly. However, it appears related to this topic. This experience has enabled me that there is a lack of commitment by the legal pro- to research this matter and to develop policies and fession to produce concrete results aimed at ensur- programs for the Law Society of Upper Canada ing that the profession reflects the makeup of the (LSUC), the Canadian Bar Association (CBA) and, Canadian population. For example, a recent article very recently, the Indigenous Bar Association (IBA) entitled "Reducing the Democratic Deficit: Represen- + (2008) 45 Alta. L. Rev. 55 at 35-66, 72-73 (Special Issue: Law Society of Alberta 100th Anniversary Conference "Canadian Lawyers in the 21st Century"), [Notes and/or references omitted.] Reproduced with permission. 226 O K19:30 emedia.captus.com/epub/etc ED . . E Introduction to Legal Studies: Proc... Q (a) Lawyers, Guns and Money: Lawyers and Power in Canadian Society learning pursuing a learned art in the public inter- Together, these two conceptions - that there exists a est." I also believe that lawyers' exercise of power - system of laws and that all are subject to the law - collectively and individually - is generally in the explain Sorenson's statement that he was privileged public interest. However, it must be subjected to to be born into a country protected by the Rule of critical scrutiny against the measuring stick of "the Law. public interest". In a society based upon the Rule of Law, it is I have divided lawyers' exercise of power into evident that law will play an important function in three categories: (1) lawyers' collective exercise of that society. This may be an obvious point but it is power as a profession in Canada; (2) lawyers' indi- demonstrated by Zevon's "Lawyers, Guns and vidual exercise of power through the lawyer-client Money". At the time when Zevon wrote Lawyers, relationship; and (3) the exercise of power by indi- Guns and Money, Honduras was under military rule vidual lawyers in the public sphere in Canadian soci rather than subject to the Rule of Law. If Zevon's ety. In each case, I attempt to explain the reasons protagonist was hiding out in Honduras, he would be and the tensions that accompany such exercise of freed only through force or persuasion. In a society power. At the end of this chapter, I reflect upon the not committed to the Rule of Law, lawyers are exercise of power by lawyers more generally. unlikely to be of much use, let alone exercise power as lawyers. The Rule of Law makes the role of law critical LAWYERS' COLLECTIVE EXERCISE in society and hence facilitates the exercise of power OF POWER by lawyers. As Allan Hutchinson has written, "law is a tool-box, how-to-manual, and raw materials ... Law The Rule of Law is one of the important activities and regimens Lawyers' collective exercise of power begins with through which society generates and maintains vari- the Rule of Law. John Adams famously declared ous 'collective goods', such as contract, property, that the United States was to be "a government of family units, and the like."" The Rule of Law laws, not of men". This was embraced in the Cana- empowers lawyers. But while the Rule of Law may dian conception of the Rule of Law that the exercise be necessary for lawyers to exercise power in society, of all public power is subject to the law and that the it is not sufficient to explain the power of lawyers in Rule of Law requires the creation and maintenance Canadian society. Three cumulative factors help to of an actual order of positive law - a system created explain lawyers' collective exercise of power in Can- out of and based upon laws.' The content of the ada: the existence of a virtual monopoly over the Rule of Law is often disputed," and at times appears delivery of legal services in most Canadian jurisdic malleable," if not manipulated." However, the two tions; unchallenged self-regulation by the legal pro- core ideas expressed above - the existence of a sys- fession; and the increasing legalization of many tem of laws that applies to everyone regardless of important issues. Each is addressed below. who they are - means that the Rule of Law is viewed as a great protector of individual liberty against the arbitrary exercise of power by the state, Monopoly over Legal Services Ted Sorenson, John F. Kennedy's closest and Lawyers have a near monopoly over the delivery longest-serving advisor and a lawyer himself, of legal services, although there are recent breaches remarked on the importance of the Rule of Law in in this centuries-old wall that has prevented others an offhand manner in his memoirs: from competing with them. It is possible to have a society governed by the Rule of Law where lawyers Throughout my life, I have reflected on my good do not necessarily play an indispensable part: the law luck; but never was I more fortunate than on would be simple, understandable and accessible to the day of my birth. Among the hundred[s] of ordinary citizens; the judge would play a more active thousands of babies born that day. I won what role in the courtroom; and an "expert" learned in my fellow Nebraskan Warren Buffett has called the "great genetic lottery," My friend Khododad the law would not be necessary. While to some this Farmanfarmaian was born the same day on the is an aspiration of access to justice," it is not the opposite side of the world, in Persia. He was operative system in Canada. The courts have always ultimately forced to flee for his life from his played an important adjudication role in our society, native country, hidden in a Kurdish hay wagon. I and in the courts lawyers are the key protagonists. was born into a country protected by the Rule In the criminal sphere, the importance of law- of Law." yers is heightened and reaches constitutional propor- 219 219 / 366 O K19:30 D emedia.captus.com/epub/etc ED . . E Introduction to Legal Studies: Proc... Q 11 Lawyers, Advocates, and Legal Practice (a) Lawyers, Guns and Money: Lawyers and Power in Canadian Society Adam M. Dodek [See lyrics of "Lawyers, Guns and Music" by who are not part of the existing power structure. Warren Zevon, online: https://www.lyrics.com/ Both the law and the legal profession have been used lyric/851 1 10/Warren+Zevon/Lawyers, + Guns+ and + Money.] as a tool of exclusion throughout Canadian history. However, individual lawyers also challenge the People of a certain (older) generation are likely status quo through the system. They are defenders of familiar with the simple lyrics and the magnetic the individual against the massive power of the state chords of Warren Zevon's 1978 classic song "Law- and proponents of the rights of those without power. yers, Guns and Money". Those of another (younger) This is the essence of the plea in Zevon's song by generation can find videos of it on the Internet or "the innocent bystander" who is now "stuck between download it as a ringtone for their phones. Zevon a rock and a hard place" and implores his father to was somewhat of a cult figure, known more for his send "lawyers, guns, and money" to help him get out strange take on life and the unusual subject matter the jam, by legal (lawyers), illegal (money), or vio- of his songs than for pop hits.' Some of his songs lent (guns) means. featured political undertones, and "Lawyers, Guns In this chapter I explore the different ways in and Money" has a ring of Graham Greene-Cold which lawyers exercise power in our society. Political War intrigue to it. But there is no mistaking the scientist Peter Russell has been at the forefront of title's reference: Zevon's trio of lawyers, guns and recognizing and explaining the unique nature of the money represents a triumvirate of power. exercises of judicial power and the issues that arise Lawyers' relationship with power is a compli- with it.' This chapter is my attempt to apply this cated and conflicted one. On the one hand, the law general idea to the exercise of "lawyer power", The works to preserve the existing power structure in specific ways in which lawyers exercise power and society. Lawyers play a critical role in this process. the nature of that power remains largely unexplained On the positive side, lawyers support the stability and in Canada. In places, the exercise of power by law- integrity of our system of government and of our yers clashes with the public interest and should be society. On the negative side, supporting the status reconsidered, reformed, and perhaps restrained. quo through law has often resulted in the exclusion However, let me be clear: I am proud to be a law- and continued discrimination against outsiders in yer and proud to be a member of the Canadian Canada over the course of our history: women, reli- legal profession. I believe in the ideal of the legal gious groups, racialized minorities and other groups profession as a community of persons of higher From David L. Blaikie, Thomas A. Cromwell, and Darrel Pink (eds.). Why Good Lawyers Monter (Toronto: Irwin Law. 2012) 57-81. Reproduced with permission of author. 218 218 / 366 O K19:30 emedia.captus.com/epub/etc ED . . E Introduction to Legal Studies: Proc... Q 11. Lawyers, Advocates, and Legal Practice tions. The Canadian Charter of Rights and Freedoms structure for immigration paralegals (now referred to provides that upon arrest or detention, everyone has as immigration consultants). the right "to retain and instruct counsel without For decades, the battles between lawyers and delay and to be informed of that right"." In criminal paralegals in Ontario resembled a legalized version cases, the state generally provides or pays for coun- of the Cold War between the West and the Soviet sel for indigent defendants. Beyond the criminal Union. Lawyers' position on paralegals was simple: sphere, the Supreme Court of Canada has recog- don't regulate them, prosecute them. But as with nized a limited right to state-funded counsel in cer- protracted conflicts, lawyers eventually came to real- tain cases where counsel is necessary to ensure the ize that they were not going to be able to defeat right to a fair trial in order to vindicate an individ paralegals on the battlefield and that some accom- ual's Charter right to "life, liberty or security of the modation would be necessary. In January 2004, the person"." Lawyers and the Canadian Bar Association Attorney General of Ontario asked the Law Society have attempted to assert that the Constitution of Upper Canada to take on the additional responsi- requires state-funded legal counsel more generally in bility of regulating paralegals. To some, this move other civil cases. To date, they have not been suc- was criticized as having the foxes looking after the cessful.#4 chicken coop, while to others it was the birth of a Legal proceedings have become increasingly new profession. The competing issues have always complicated with the result that lawyers have become been access to affordable legal services and protect more [indispensable] to individuals caught up in the tion of the public. But beneath this, the battle was a legal system, However, this complexity - along with raw struggle over power. the high cost of lawyers' fees - has contributed to The battle over paralegals in Ontario represents the following paradox: the more lawyers are needed, a microcosm of lawyer power and the justification the less affordable they are for ordinary citizens, As for it. Lawyers' monopoly over the provision of legal a result, the courts have witnessed a significant services can only be justified on the basis of the increase in self-represented or unrepresented litigants public interest. Lawyers therefore could not oppose in recent years." It is likely that the high cost of paralegals on the grounds that the latter group legal services serves as a deterrent to many citizens would be an unwelcome competitor, but on the pursuing legal claims. While the increasing complex- grounds of protection to the public. However, over ity of court proceedings has enhanced lawyers' power time as paralegals became more entrenched and in the legal process, access to that power remains access to justice pressures increased, the legal pro- out of reach for many Canadians." fession in Ontario came to the realization that an A further manifestation of lawyers' collective accommodation was necessary. The public interest exercise of power is the monopoly that the legal pro- demanded paralegal regulation both in order to fession holds on judicial appointments. It is an obvi promote access to justice and to ensure that the ous but important point that all judges are drawn public was protected. The role of the Law Society of from the ranks of lawyers. Most judges are persons Upper Canada morphed from the regulator of the who practiced law for twenty to thirty years. They legal profession to the regulator of legal services in are steeped in the culture of the law and of the Ontario. legal profession. They may be expected to be sympa- thetic to and supportive of the existing structures of power from whence they came. Self-Regulation Recent years have seen cracks in lawyers' The decision by the Law Society of Upper Can- monopoly over the provision of legal services." Nota- ada in 2004 was a significant role change which dem- ries have long operated alongside advocates in Que- onstrates the links and the strains between two bec in relative detente. In British Columbia, a monopolistic characteristics which contribute to law- restricted number of notaries have been allowed to yers' power in Canada. First, provincial legislatures provide basic legal services, and the B.C. Govern- have granted lawyers a monopoly over the delivery ment has now lifted some of those restrictions. In of legal services. We may analogize this to monopo- other provinces, battles have raged between lawyers lies granted to public utilities at different points in and "paralegals" - a catch-all term that can refer to time. However, unlike public utilities which are any person providing some sort of legal service, such highly regulated by the state, lawyers are not. Provin- as representing a person in traffic court or providing cial legislatures have generally granted lawyers a immigration advice. In recent years, the federal gov- monopoly over regulation as well. Thus, the second ernment moved to set up an independent regulatory monopolistic element is this grant of self-regulation 220 220 / 366 O K19:31 BOU D emedia.captus.com/epub/et ED . . E Introduction to Legal Studies: Proc... Q (a) Lawyers, Guns and Money: Lawyers and Power in Canadian Society to lawyers. Lawyers in Canada regulate themselves The legal profession has attempted to fuse the through law societies - lawyer-run regulatory bodies concept of self-regulation with the long-standing prin- to which all lawyers in a province or territory must ciple of the independence of the bar. It has then belong. The mandate of every law society is to regu- endeavoured to clevate independence of the bar to late the legal profession (or in the case of Ontario, one of the "unwritten constitutional principles" in to regulate the provision of legal services) "in the Canadian law, which the Supreme Court of Canada public interest". recognized in the Secession Reference in 1998." To The public interest mandate of law societies is date, the attempts to protect self-regulation through exemplified in the Role Statement of the Law Soci- such interpretive efforts have not directly succeeded. ety of Upper Canada adopted in 1994. It provides: However, lawyers have enjoyed mixed success in liti- gation against perceived intrusions on self-regulation. The Law Society of Upper Canada exists to govern the legal profession in the public interest by ensuring that the people of Ontario are served by lawyers who meet high standards of learning, competence and professional conduct. Canadian lawyers face practical hurdles in the and upholding the independence, integrity and battle against future incursions against self-regulation. honour of the legal profession, for the purpose This is because experience elsewhere demonstrates of advancing the cause of justice and the rule of that lawyers' double monopoly does not necessarily law, 14 need to go together. In the United States, lawyers enjoy a general monopoly over the provision of legal The Role Statement links the justification for the services, but lost the battle over self-regulation long two monopolistic elements: the public interest justifi- ago. In most states, lawyers are regulated through cation for lawyers' monopoly over the provision of the courts which often delegate the function to a legal services, with the public interest mandate of state bar association but still retain supervisory self-regulation by the Law Society. authority. In the United Kingdom and some Austra- As is widely recognized in statutes, court deci- lian states, legislation has restricted or removed self- sions and statements of the regulatory bodies them- regulation." selves, this grant of self-regulation is done in the name of "the public interest". The mandate of law societies is to regulate the practice of law "in the Legalization of Disputes public interest", not in the interest of its lawyer The frequency of lawyers' exercise of power is members. The law societies are different therefore expanding because of the growing legalization of dis- from voluntary legal associations like the Canadian putes. In Canada, as elsewhere in the world, there is Bar Association, the Criminal Lawyers' Association, an increasing tendency to characterize disputes in Trial Lawyers Associations, and others which are ere- legal terms and seek their resolution in the courts ated by lawyers to advocate for the interests of their rather than through political or other forums. Some members. Very often these voluntary associations have claimed that the Canadian Charter of Rights and work in the broader public interest as they view it, Freedoms contributed to this "legalization of poli- but they are not required to do so. It is their choice, tics"." but the trend certainly predated the enact- not their duty. ment of the Charter. It dates back at least to the The law societies exercise their regulatory pow- Patriation Reference (1981)" where the Supreme ers over lawyers through establishing criteria for Court of Canada declared its willingness to opine entry into the profession and by promulgateng ethical and define constitutional conventions - the rules of codes which are then enforced through a complaints the game that political actors have bound themselves and discipline process. The regulatory effectiveness to follow." The Charter brought a whole range of of law societies has frequently come under strong new claims before the courts, but the legalization of criticism." In practice, very few provisions of these disputes extends far beyond such "Charter claiming". codes are actually enforced through the discipline It involves the increasing willingness to characterize process, and questions have been raised about the many clearly political issues in legal terms: the rules selective enforcement of the rules against certain of succession for the monarchy:"the Senate appoint- types of lawyers, focusing on the misdeeds of some ment process; and Prime Minister Harper ignoring and ignoring those of others. his fixed election date legislation in the fall of 2008 Lawyers have guarded their monopoly over reg- by seeking an early dissolution of Parliament." What ulatory control in the name of the public interest. is remarkable in the political crisis of 2008-9 is that 221 221 / 366 O K19:31 Bog emedia.captus.com/epub/etc :D . . 11. Lawyers, Advocates, and Legal Practice it did not involve the courts, although it certainly did selection "one of the most important and most involve many legal arguments."Other areas of public neglected issues for lawyers .. it is arguably the most policy such as health care and the environment are important decision that any lawyer makes because, witnessing increasing legalization. This legalization of once a client is taken on, the lawyer has become political disputes transfers power from the political committed to a whole host of ethical and moral obli- to the legal realm, resulting in an increase in law- gations". I differ from Hutchinson in that I see cli- yers' power. This trend is not without its limitations, ent selection as the third most important decision however. that a lawyer makes. It is trumped by the lawyer's Despite all of these developments. lawyers' vol- decision as to what area of law to practice (criminal untary legal organizations exercise only limited power law, corporate law, environmental law, family law, in Canada. The Canadian Bar Association is Can- and so on) and what setting to practice in (govern- ada's largest voluntary legal association with approxi- ment, large firm, small firm, union-side boutique. mately 37,000 members in 2009," representing about and so on). Both of those prior decisions will restrict 36 percent of over 100,000 lawyers in Canada." The and, in some cases, dictate the lawyer's choice of CBA does not display the same power that the clients. American Bar Association (ABA) has in the United Lawyers' rhetoric about accepting all clients, States. In part, this may be attributed to its federal however unpopular, is trumped by the right to structure. But it also has no recognized role in judi- decline any client for any reason short of unlawful cial appointments in the way that the ABA has for discrimination." Lawyers in Canada are not required many years. Nor is it a leading voice in public policy to take on all clients. In legal ethics, this is a subject in Canada. It has focused on a number of discrete of great debate. However, in practice, the greatest issues in recent years: continuing legal education, the discrimination is exercised not on the basis of the independence of the judiciary, and conflicts of inter- morals or political opinions of the client, but on the est in the legal profession being chief amongst them. client's ability to pay. Unpopular but wealthy clients It has attempted to make access to justice a leading have no problem getting representation. issue, but its strategy of attempting to legalize the Unpopular and poor clients have great difficulty issue by litigating it in the courts has failed to date. obtaining counsel outside the criminal context. Chris- From lawyers' collective exercise of power, we tina Finncy, an Anglophone schoolteacher of modest now turn to lawyers' individual exercise of power means, sued the Barreau du Quebec for regulatory through the lawyer-client relationship. negligence. She was unable to find a lawyer in her own province and represented herself at trial (where she lost) and at the Quebec Court of Appeal (where INDIVIDUAL EXERCISE OF POWER she won). In 2002, she took the bus from Montreal THROUGH THE LAWYER-CLIENT to Ottawa to attend a case at the Supreme Court of RELATIONSHIP Canada similar to hers and she approached me for help during a recess. At the time, I was a lawyer at Individual lawyers exercise significant power through Borden Ladner Gervais LLP in Toronto acting pro the lawyer-client relationship. While there may often bono for the Federation of Law Societies in that case be a significant power imbalance in this relation ship," at times the lawyer may become "captured" with Gavin Mackenzie, a leader at the bar and future treasurer of the Law Society of Upper Can- by a client or a client-employer and find him or her- ada." To its great credit, the Montreal office of self unable or unwilling to exercise power through Borden Ladner Gervais agreed to the retainer and independent judgment." In this section, I explore the nature of the lawyer's power in the lawyer-client actively supported it, helping Ms. Finney to achieve a relationship. The source of this power can be attrib- significant victory at the Supreme Court of Canada," uted to the discretion afforded lawyers (by the law Once lawyers do accept clients, they maintain significant discretion within the lawyer-client relation- created by lawyers) in that relationship. The lawyer's power in the lawyer-client relation- ship. It is said that lawyers take instructions but ship begins with the lawyer's control over client should not be dictated to by clients. One of Can- selection, although a large discrepancy exists between ada's greatest criminal lawyers, G. Arthur Martin. the rules and the reality in this area. Lawyers' power explained the role of defence counsel in the to exert control over the choice of clients is following terms: underappreciated both in terms of legal ethics and The role of the defence counsel is to provide lawyers' power. Allan Hutchinson has called client professional advice and assistance to the client in 222 O K19:31 8 emedia.captus.com/epub/etc :D . . (a) Lawyers, Guns and Money: Lawyers and Power in Canadian Society accordance with the strict ethical standards that since the courts continue to allow such disclosures) govern the role of defence counsel. The defence in a variety of circumstances, including to defend counsel is not a messenger, an alter ego merely the lawyer or the lawyer's associates or employees to carry out the wishes of the client irrespective of whether they comport with professional stan- against any allegation of malpractice or misconduct dards. The role of defence counsel is to be the regardless of whether in involves the client or not, champion of the client's cause and to see that or to establish or collect the lawyer's fee." More- his or her rights are not strongly invaded from over, while the Supreme Court has recognized an any quarter.40 exception to the privilege (and by extension to the duty) where there is a threat to public safety, it has Much of what Martin says applies to the role of all left the decision whether to disclose information in lawyers. There are cases where a reverse power the hands of the lawyer rather than requiring it, thus imbalance appears to exist and the client is able championing lawyers' autonomy over the public inter- to dominate or override the lawyer's independent est." Thus, lawyers' ability to control exceptions is judgment. Such may be the case where a lawyer is also a source of power. working for a large entity and loses a sense of pro- The solicitor-client privilege is a great source of fessional detachment or independence, or where a power for lawyers. It allows lawyers to exercise lawyer is working for a very strong-willed client. power through legal advice without being held In the area of class actions, the whole notion of accountable for that power. For example, behind having a client is problematic. A class action is pre- every exercise of governmental power is legal advice mised on having a representative client who repre- supporting or perhaps expressing concern about its sents the interests of a larger class. Class actions exercise. Most of this legal advice is virtually unob- often involve matters of great public interest such as tainable unless the government decides to waive the environmental spills or tainted blood. They may, and privilege. Thus, to take an example, in the deal often do, produce significant public policy changes reached between the government, the official opposi- that are in the public interest, but the process is a tion, and the Bloc Quebecois over the Afghan problematic one in terms of checks on power. Some detainees documents, an exemption from disclosure class actions are akin to a system of public regulation was allowed for solicitor-client privileged documents. through law controlled completely by lawyers whose Previously, it was reported that there existed legal duty it is to act in their client's best interest in a opinions regarding the applicability of the Geneva particular lawsuit. When there are settlements - as is Conventions on the laws of war to the conduct of often the case -the whole adversary system breaks Canadian forces [with] respect to the Afghan detain- down and such actions become essentially public reg- ees. However, under the terms of the deal reached ulation without the transparency and accountability by the Government and the opposition, Solicitor- that the political process is meant to provide. Class client Privilege has effectively been used to protect actions are also problematic because of class action lawyers' power and to shield them from inquiry. This lawyers' inherent conflict of interest due to large is in stark contrast to the disclosure of the infamous contingency fees. "torture memos" in the United States, discussed Solicitor-client privilege is another source of below. lawyers' power. Lawyers promise their clients confi- With an increasing recognition that legal advice dentiality and the courts have afforded the highest itself is an assertion of power, there is a growing level of protection to confidential communications debate in Canada," which has already been raging in between lawyers and clients through the lawyer-client the United States," over the extent to which lawyers privilege also known as solicitor-client privilege. The are morally responsible for the legal advice that they privilege is long-established in Anglo-Canadian law give. As the above example with the privilege dem- and said to be essential for full and frank disclosure onstrates, legal advice may be an exercise of power between lawyer and client. It is afforded stronger without accountability. protection than similar privileges for communications One legal scholar famously opined that, "legal with doctors, therapists, or members of the clergy. interpretation takes place in a field of pain and While the justification for the lawyer-client privilege death. Legal interpretive acts signal and occasion the is virtually unquestioned in Canada, the broad imposition of violence upon others: A judge articu exceptions for lawyers' own self-interests have not lated her understanding of a text, and as a result, escaped negative commentary."Lawyers may breach somebody loses his freedom, his property, his chil- their ethical duty of confidentiality (and assumedly dren. even his life." This scholar-author focused on the client's right to solicitor-client privilege as well acts of judicial interpretation, but the same point can 223 O K19:31 Bog emedia.captus.com/epub/etc :D . . 11. Lawyers, Advocates, and Legal Practice be made respecting the work of lawyers in interpret- client relationship. The effects on the individual cli- ing the law. The most notorious example has become ent or on others may be devastating. the Torture Memos written by lawyers in the Bush administration to justify the imposition of torture through legal advice. These lawyers used the law not as a constraint on power, but as "the hand- Ultimately, abuses of power by individual law- maiden of unconscionable abuse." yers may have a cumulative effect on lawyers' collect We do not need to go outside of Canada for tive power and on the integrity of the justice system examples of the effects of legal advice provided by as a whole." The role of lawyers in Watergate in the lawyers. In a series of cases in the Federal Court, United States led to a crisis of confidence in the government lawyers have argued strenuously that the American legal profession. We have had no single protections of the Canadian Charter of Rights and "defining cultural moment . . . in which lawyers were Freedoms do not apply to the actions of Canadian placed under national scrutiny and obligated to officials abroad. We can debate the merits of this reconsider the legitimacy of their professional prac- position as a matter of policy, but there is no tices and norms of conduct."The Canadian legal question that it has a significant effect on the lives profession has been lucky to escape such scrutiny. of those with whom Canadian officials interact Elsewhere, I have described the years 2006 and 2007 abroad, be they Afghan detainees or Omar Khadr. following the Wirick fraud as the anni horribiles - In another dramatic example, lawyers spearheaded a the horrible years -for the Canadian legal profes- record $2 Billion class action settlement with survi- sion because of one high-profile scandal after vors of residential school abuse. Press reports have another." The Canadian legal profession may be linked at least twenty-two suicides in B.C. to the nearing the tipping point, one scandal away from payouts from this lawsuit." Should the lawyers government intervention to curb their collective involved in that settlement be held morally responsi- power. In 2009, the Government of Ontario intro- ble for the consequences of their actions? These duced legislation which would give it the power to cases demonstrate the power of legal advice in the step in and appoint a supervisor to essentially take lawyer-client relationship. That power also provides over the regulatory responsibilities of any of the the opportunity for abuse. twenty-three health regulatory bodies in that prov- The imbalance in the lawyer-client relationship ince, including the bodies that regulate doctors, provides the opportunity for abuse of that power. As nurses and dentists." In an editorial supporting the one of the leading scholars of the legal profession in move, the Toronto Star opined: the United States has recently written, betrayals of trust by lawyers "have serious, sometimes cata- Self-regulation, though, is a privilege, not a right. strophic consequences."I In 2007, former Bay Street And given the potential impact on patient health partner and Dean of Law Philip Slayton wrote a sur- from these colleges' decisions, it is reasonable prise bestseller entitled Lawyers Gone Bad." It was for the province to seek greater oversight. There have been incidences when the colleges have catapulted to the bestseller list by a sensationalist been slow to fix problems. Maclean's cover story. Slayton aroused the ire of the legal profession with many of its leaders rising to attack him and defend the integrity of lawyers. But The same words could casily have been written about law societies. We now turn to the individual rather than a wholesale denigration of the profes- sion, the message from Lawyers Gone Bad is actually power of lawyers outside the lawyer-client relation- quite modest. It is that the practice of law provides ship opportunities for lawyers to take advantage of the power offered to them through that practice." Some of the abuses of power are well-known THE ROLE OF LAWYERS IN and age-old, such as the mishandling or outright PUBLIC LIFE theft of client funds. Others are less discussed and If Laurier famously quipped that the twentieth cen- more controversial, such as sexual relationships with tury would belong to Canada, the truth is that in clients and the exploitation of business opportunities Canada, the twentieth century belonged to lawyers. that arise through the lawyer-client relationship. In As individuals, lawyers exert significant power in each of these and other types of abuse of power, Canadian society. If we begin with the three lawyers exploit their position of power and abuse the branches of government - executive, legislative, and trust that is the defining characteristic of the lawyer- judicial - lawyers have a monopoly over one branch 224 O K19:31 8 emedia.captus.com/epub/etc :D . . (a) Lawyers, Guns and Money: Lawyers and Power in Canadian Society (judicial), dominance over another (executive), and We can also see a relationship between what prominence in the third (legislative). It bears repeat- lawyers do in lawyer-client relationships and the col- ing that all members of the judicial branch in lective power of lawyers. It is generally accepted that Canada are drawn from the ranks of lawyers. while the lawyer-client relationship provides great Beginning with the executive, every single prime opportunity for abuse of power, very few lawyers minister in the 20th century had some legal training. actually do so. Most lawyers serve their clients dili- All but three were practicing lawyers (William Lyon gently and honourably and contribute to a working Mackenzie King, Lester Pearson, and Joe Clark)." In justice system that is the envy of many countries. total, sixteen of our twenty-two prime ministers have The collective power of lawyers through the double been lawyers (73 percent)." Prime Minister Stephen monopoly has remained largely unchallenged and is Harper is the first prime minister since Joe Clark built on many uncontested assumptions about the (1979-80) who is not a lawyer. At the time this role of lawyers and about the operation of our chapter was written (in the winter of 2011). none of justice system. There has been an increasing recogni- the party leaders were lawyers." Harper is the first tion that access to justice has become unobtainable Prime Minister since Sir Charles Tupper (M.D.) who to a vast majority of Canadians, yet the collective has no legal training, although Harper was an active reaction of lawyers and judges has been to lament litigant while he headed up the National Citizens and attempt to legalize a right to more lawyers Coalition." rather than asking difficult questions and testing cre- ative solutions to the problem. The first paradox is that it is not these systemic concerns that are likely to dislodge lawyers' power, but rather the abuse of Why are there so many lawyers in politics and power by a relatively small group of outlier lawyers. government and what are the consequences? Frank The second paradox is that while lawyers are Mckenna was premier of New Brunswick for a strongly represented in public affairs, lawyers as a decade. He felt that being a criminal lawyer had pre- collective body are remarkably ineffective at getting pared him to be a provincial premier. While still legal issues on the public agenda. It was long ago Premier, he opined that. "[ift seems that almost remarked that being a lawyer does not seem to everything I do, almost every skill I need as a politi- affect the behaviour of politicians's and there is little cian, is enhanced in some way by the discipline and indication that, collectively, lawyers have received experience I had in the practice of law."" Mckenna favoured treatment from their colleagues who have felt that the "indomitable will to win" that one needs become politicians. It was said that in the United as a criminal lawyer translated well into politics." States the lawyer-politician does not differ apprecia- Both law and politics have a public interest claim. In bly from other politicians." In Canada, lawyers col- law, the public interest is at times difficult to see or lectively barely register on the political radar. exists below several layers of arguments, as we have Warren Zevon's "Lawyer, Guns and Money" seen above. In politics, the public interest is direct continues to resonate with listeners precisely because and open. I cannot help but wonder if some of the it conjures up such a stark image of the instru- lawyers who enter politics are drawn to it because of ments of power. In Canada, the idea of lawyers as their desire to do more for "the public interest" than actors who exercise power in our society is under- they felt they were able to do in law. appreciated. People talk offhand about "powerful lawyers" but they don't really explain what they mean by this. Lawyers act in many different capaci- ties both in legal and non-legal roles. They use their power to help individual clients deal with concrete CONCLUSION: PARADOXES OF problems or difficult disputes, or, in Zevon's terms, LAWYERS' POWER IN CANADA to help people who are "between a rock and a hard place". Criminal lawyers protect individuals against Collectively, lawyers exercise tremendous power in the massive power of the state and ensure the fair- Canadian society through the lawyer-client relation- ness of our criminal justice system. Many lawyers ship, and individually through government and other have chosen to use their power to work for the less public roles. If we review the analysis of lawyers' powerful communities in legal clinics or in poverty exercise of power, we see that it is always asserted law and human rights practices, Other lawyers work in the name of others: clients, the administration of to protect the interests of the already powerful - justice, the public, and so on. privileged individuals and businesses in Canadian 225 O K