Making the Hard Decisions: Ethical Lawyering

What do you do as a lawyer when your client wants you to call a witness or make representations to the court that you believe are non-starters and even dangerous to your client’s case? If you’re one of President Donald Trump’s lawyers, you might seek to introduce a “handwritten yellow sticky note” as evidence of election fraud (see decision with ruling the note was inadmissible as hearsay here). And then there’s Dean Embry, the lawyer representing James Sears, the editor of Your Ward News, who now finds himself as a witness in his former client’s appeal of a conviction for spreading hatred, an appeal based on incompetent lawyering (see the Canadian Press report in the National Post and The Globe and Mail).

Worded in the most simplified way, the lawyer’s role is to become familiar with the facts of the case (based on the client’s version and other sources of information), consider the options, having researched the law and based on experience, advise the client of the feasibility of their claim and of the options available, including their chance of success and other advantages and disadvantages, and then to take the client’s instructions. Sometimes, however, taking the client’s instructions would mean misleading the court or other tribunal, misrepresenting the facts or otherwise acting in contravention of the rules of professional conduct. These are times when the lawyer may have to refuse to act for the client and must withdraw from the case (subject to the rules relating to withdrawal). Or continue to represent the client without, in effect, doing what your client wants.

Dean Embry’s client, James Sears, was charged with two counts of promoting hatred against women and Jews. His publication, Your Ward News, “consistently portrayed women as inferior and as inviting rape. It also promoted tropes of Jews drinking the blood of Christian children and denied the Holocaust occurred” (see CBC report here).

Sears wanted Embry to present as defences to the charges against him arguments that Embry believed would be totally ineffective. Embry refused to call the witnesses and make the arguments Sears wanted. Sears was convicted of wilfully promoting hatred and subsequently fired Embry. Sears’s ground of appeal was that Embry was incompetent because he didn’t raise the defences, call the witnesses or introduce the evidence. According to the Canadian Press report, based on Embry’s testimony when he was called as a witness at Sears’ appeal, Embry did refuse to follow Sears’ instructions in several respects.

Sears also told Embry to call witnesses to show that the things he had published, found to be misogynous and anti-Semitic, were true. For example, Sears wanted Embry to call as a witness in his [Sears’] defence a person known as a “notorious anti-Semite” (in the words of Colin Perkel, who wrote the Canadian Press report) to raise questions about whether the Holocaust happened. Embry testified, “‘Denying the Holocaust in the context of this trial was crazy and suicidal’”. Embry also refused to argue that the misogynist comments Sears had written in Your Ward News were true. Embry had concluded that calling an expert witness to support Sears’ view as expressed in Your Ward News, would not be successful.

Embry and Sears also disagreed about how to deal with Sears’ convictions for sexual assault for which he had been pardoned. Sears, however, maintained publicly that he had successfully appealed the convictions. Embry refused to require the introduction of a police report that, because of the pardon, would not have shown a criminal record. According to Perkel’s Canadian Press report,

[Embry] said he didn’t want to draw attention to the issue in line with Mr. Sears’s wishes, but also didn’t want to argue the criminal conduct hadn’t happened.

“I couldn’t allow him to mislead the court and couldn’t assist him in doing so,” Mr. Embry said.

Sears eventually accepted Embry’s advice, because, he said, Embry is a lawyer, but when he was convicted, he claimed Embry was incompetent.

In at least one situation, following Sears’ instructions would mean misleading the court; in other instances, Sears wanted Embry to defend his (Sears’) comments on the basis that they were true, while Embry did not believe them to be true (or, perhaps more to the point, even debatable); and Embry not only did not think the positions Sears wanted him to take could be successful and might be harmful.

Several rules of practice apply to a lawyer in relation to representing a client. (Here I confine myself to the Rules of Professional Conduct of the Law Society of Ontario (“LSO”).)

Commentary 2 to Rule 3.2-2 reads as follows:

The lawyer’s duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.

Rules 3.1-1(b) states, the lawyer has an obligation to “advis[e] the client on appropriate courses of action”. Under Rule 3.2-4, a lawyer “shall discourage the client from commencing or continuing useless legal proceedings” (as well as to encourage compromise or settle a case when it is reasonable to do so).

These rules and commentary, among others, support Embry’s advising his client that the defences his client wanted to raise, the witnesses his client wanted to call and the evidence his client wanted to introduce would not be successful. Given what he apparently understood about how effective the defences could be, that is, the merits of the case, and what he thought the results would be of raising them, Embry’s advice was that raising them was not an appropriate course of action. The Canadian Press report does not indicate whether he advised Sears to plea bargain, which might have been appropriate.

But does this mean that Embry should refuse to follow Sears’s instructions nevertheless?

There is one other element at play here. These are not just any defences. More or less by definition, the comments in Your Ward News appeared on their face to be anti-Semitic and misogynist. How would raising the defence of truth to these comments be consistent with a lawyer’s duty to respect diversity? Rule 6.3.1-1 states,

A lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds [identified under the Ontario Human Rights Code] … with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

Rule 6.3.1-1 itself does not appear to apply to evidence or arguments that might seem to discriminate or risk being considered to discriminate against a particular group. However, there are two other LSO obligations that may seem to have broader application. One is commentary under the Rule:

[1] The Law Society acknowledges the diversity of the community of Ontario in which lawyers serve and expects them to respect the dignity and worth of all persons and to treat all persons equally without discrimination.

[2] This rule sets out the special role of the profession to recognize and protect the dignity of individuals and the diversity of the community in Ontario.

The other is the statement lawyers are expected to make as part of their annual report about non-discrimination. Currently, this statement merely provides that “the Law Society shall require every lawyer licensee to acknowledge in the lawyer annual report that [they shall follow Rule 6.3.1-1]….” pursuant to a motion approved by Convocation on September 11, 2019. This requirement was a compromise following pushback on a previous requirement that every lawyer acknowledge in their annual report that an “obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.” (emphasis added) (See here for a fuller discussion of the Statement of Principles.)

The current requirement does nothing more than require lawyers to state they will follow the rules of professional conduct in relation to the Human Rights Code. Promoting “equality, diversity and inclusion” would suggest lawyers are expected to do more than not discriminate; depending on the interpretation, it could mean that a lawyer could not raise a defence that would be or could be interpreted as making discrimination seem acceptable. Obviously, given that in the normal course there can be disagreements about whether a particular action is discriminatory, this interpretation would not be feasible or sustainable or consistent with responsibility to a client. Indeed, the LSO said that when they used the word “promote”, they did not really mean “promote“.

However, there are limits to disagreement. In a sense, Embry’s view that no judge would hold that the Holocaust didn’t happen or be willing to accept as true that women are inferior or not entitled to the vote shows the limits to disagreement or the boundaries around where debate can acceptably occur. And once he concluded that Sears’ comments were anti-Semitic and misogynist, arguing they were true on Sears’ behalf would be to argue that debate about such views is legitimate. (A different matter than Sears’ constitutional right to publish objectionable views in Your Ward News, as long as he does not contravene the Criminal Code, as stated by the trial judge (see the CBC report).)

While a lawyer rightly tells a client when the arguments the client want presented will not win the day and may, in fact, be harmful to the case, this does not necessarily mean the lawyer will not make them. It will depend on the circumstances: will the argument mislead the court or is it frivolous (“evidence” on a sticky note?), for example. Is lack of success sufficient if the client insists? And, given the context of the Sears’ case, are some arguments injurious to the public good or to the dignity of members of society? Embry’s stated reasons related to the potential effectiveness of his representation of Sears, but is there an unstated subtext that some arguments are beyond the pale, those that do not “respect the dignity and worth of all persons”? And if so, how do we decide which ones those are?

http://www.slaw.ca/2020/11/17/making-the-hard-decisions-ethical-lawyering/

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