No laughing matter

By Gavin & Brooke MacKenzie Fall 2016

Untrustworthiness may be an image the public associates with lawyers generally but that also contrasts with the high level of trust clients generally have in their own lawyers

No laughing matter
Village Lawyer by Pieter Brueghel the Younger, 1621

 

Gavin: I usually ignore lawyer jokes on the incontestable ground that they’re unfair and insulting. But once in a while, they may have a grain of truth to them.

Brooke: Give me an example.

Gavin: Well, there’s the one about the lawyer and the doctor whose cars collide. The lawyer sees that the doctor is shaken up and offers him a drink from his hip flask. The doctor takes a long drink, some of which he spills on his shirt, and then returns the hip flask to the lawyer, who puts it away. The doctor says, “Aren’t you going to have a drink?”, and the lawyer says, “Oh yes—just as soon as the police leave.”

Brooke: So what qualities attributable to lawyers does that joke exemplify?

Gavin: That lawyers are trained to be strategic, to win at all costs, and to distort or conceal the truth. The joke wouldn’t work if the roles of the doctor and the lawyer were reversed. Trouble is the lawyer is self-interested. Dubious tactics to advance a client’s interests are one thing; dubious tactics to advance a lawyer’s own interests are another. At least when O.J. Simpson’s lawyers redecorated his home before the jury visited – to feature photos of O.J. with African-American friends and family – they were advancing their client’s cause. But even they would be considered by many as untrustworthy.

Brooke: Without condoning their conduct, O.J.’s lawyers likely seemed untrustworthy to people whose interest was adverse; those who took O.J.’s side would likely have called it a good advocacy strategy. Untrustworthiness may be an image the public associates with lawyers generally but that also contrasts with the high level of trust clients generally have in their own lawyers.

Gavin: That’s because of the two fundamental professional values at the root of everything lawyers do: loyalty and confidentiality — owed to clients, not to the public. And they trump the common good. Don’t forget that many clients in need of legal advice are themselves untrustworthy.

Brooke: The public sees lawyers as complicit in their clients’ untrustworthiness. The clients see their lawyers as trusted advisers who will keep their secrets and protect their rights.

Gavin: Exactly. A wise senior lawyer explained to me years ago that lawyers will trust the lawyer on the other side of a case unless and until she proves she can’t be trusted, whereas their clients will distrust the lawyer on the other side unless and until she proves that she can be trusted.

Brooke: That may stem from the different perspectives about a lawyer’s roles and responsibilities. Opposing counsel owe fundamental duties of loyalty and confidentiality to their clients, and this colours our understanding of our interactions. Clients or members of the public are not likely to see opposing counsel in this light – they may view the other side as stubborn, tricky or unreasonable, without considering that the opposing counsel is “just doing her job.”

Gavin: In MacDonald Estate v. Martin, Justice Cory referred to lawyers “soldiering on in the cause of justice.” Although many lawyers likely agree with Justice Cory’s assessment, the public is likely to see these soldiers as mercenaries rather than as patriots. The question becomes whether we should dilute the duties lawyers owe to clients in order to heighten the level of trust in the profession generally.

Brooke: To do so would inevitably lessen the trust clients would have in their own lawyers, in the hope that the public would start trusting lawyers more. The costs would far outweigh the possible benefits. The concern of public distrust is not unique to lawyers. George Bernard Shaw once wrote that, “Every profession is a conspiracy against the laity.” We see that today in fee disputes between physicians and provincial governments, in public concerns about creative accounting and the advice given by financial advisors who are not fiduciaries. It seems all professions are seen as elites and have fallen in public regard.

Gavin: So lawyers should focus on fulfilling our professional duties to our clients to be worthy of their trust – even if that means we are the butt of jokes every once in a while.

Gavin MacKenzie and Brooke MacKenzie practise together as MacKenzie Barristers in Toronto, with a focus on professional liability and appellate advocacy. You can find them at www.mackenziebarristers.com.

 

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