At the time of writing, controversy is stirring at four Canadian universities that invited criminal lawyer Marie Henein to participate in a speaker series. A student wrote an opinion piece condemning the decision to invite Henein on the basis that she was Jian Ghomeshi’s defence counsel in his much-publicized sexual assault trial. The director of a Nova Scotia women’s centre echoed the criticism, stating that by extending this invitation to Henein, the universities were “potentially retraumatizing students… who have experienced sexual violence”.
Lawyers are familiar with the challenges inherent in advocating for an unpopular case – and such challenges are exacerbated in such a high-profile case. It is particularly troubling, however, that these critics attributed victim-blaming beliefs to Henein personally because of her advocacy on behalf of her client, and viewed the potential speech as something to suppress rather than an opportunity for productive discussion.
Is there a good reason to allow non-lawyers to provide legal services?
Lawyers’ education and training is superior. Admission standards are high. We are bound by codes of conduct and must be insured. Lawyers who breach professional duties may be disciplined. Why should anyone with lesser qualifications be inflicted on the public?
The short answer is that lawyers do not and cannot fill the public’s need for legal services. According to the 2009 Ontario Civil Legal Needs Project, lawyers provide advice and representation for only 11.7 per cent of what the study called “justiciable events:” issues relating to consumers, employment, debt, social assistance, housing, disability pension, discrimination, family law, and hospital treatment issues, among many others.
As Ontario bencher Malcolm Mercer has pointed out, lawyers don’t necessarily perceive the extent to which the public’s legal needs are unmet. We tend to see the access to justice problem strictly from our own professional perspective. And as Professor Gillian Hadfield has noted, the problem is aggravated by the fact that the employer, the bank, or the business on the other side the legal issue, does have access to expert legal advice.
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?
At the time of this writing, only a week has passed since the revelation of the largest data cache release in history, 11.5 million documents spanning a 40-year period from the files of the Panamanian law firm Mossack Fonseca. It is early days in this saga, and a lot will have happened by the time you read this. But it is already abundantly clear that the story is a treasure trove of ethical issues for lawyers. Let’s consider three of them briefly.
Brooke: Over the holidays I caught up on The Good Wife, which got me thinking about how lawyers are portrayed on television. Although it’s not news that legal dramas are unrealistic, the frequency and degree of modern TV lawyers’ ethical breaches are staggering.
I recently re-watched just one episode of the hit How to Get Away with Murder, and I could barely keep count of the ethical violations. First, Annalise Keating, a criminal defence lawyer and law professor who hires her students to assist in her practice, accepted a client accused of murder because she believed her own husband actually committed the crime. She buried evidence that implicated her husband even though she needed to link him to the murder to exonerate her client. In a side plot, Keating lied to another client about a plea bargain in order to obtain information from her then withdrew, leaving the vulnerable client unrepresented. Throughout, Keating had an affair with a police officer investigating her cases. Meanwhile, one of her students dated the client accused of murder.
The very premise of another TV drama, Suits, is an ethical violation: the unauthorized practice of law. Suits follows a brilliant young burnout with no law degree or licence to practise who talks his way into an associate position at a New York firm; the series revolves around how he and the partner who hired him struggle to keep his secret.
Gavin MacKenzie is a partner at DLA Piper in Toronto. His daughter, Brooke, is an associate at
Gavin MacKenzie est associé à DLA Piper à Toronto. Sa fille, Brooke, est avocate à McCarthy Tétrault.