Lawyering in times of chaos

As defenders of the rule of law, lawyers face unique challenges that can put their ethical obligations to the test—all the more so in times of upheaval marked by political polarization, environmental degradation and anti-science movements. Lawyers might find themselves considering which causes they're prepared to commit to and which ones they aren't. They may also ask themselves whether they are duty-bound to anything else beyond their clients' narrow interests—a dilemma that Malcolm Mercer, chair at Law Society Tribunal, used to set the stage for a panel discussion in March at the Ethics Forum hosted by the CBA and the Federation of Law Societies of Canada. 

According to Steven Vaughan, a law professor at University College London, there is a "disjuncture between doing everything you can to advance your client's interests and other obligations." Lawyers will often say that their ultimate ethical obligations are to their client and their interest. "But legally, that is incorrect," says Vaughan, a former environmental practitioner who now teaches ethics. Other legal principles—integrity, honesty, and independence—also come into the mix.

Vaughan also stressed the need for lawyers to reflect critically on what upholding the rule of law means. "The rule of law as a notion is varied and contested" and has "no universally accepted definition," he said. "We have thinner, more formal accounts of the rule of law — how laws are made and enforced — and then we have thicker and much more expansive definitions which include aspirations about rights, about transparency, about justice, about participation." 

His broader point is that, certainly, lawyers must act resolutely for their clients, but as professionals, they are still bound by commitments to the public interest and the rule of law.

"When you talk to lawyers about the things they're willing to do or not willing to do, and you give them a list, almost everybody has some individual moral ethical red line," said Vaughan. As a practitioner, he drew that line when he was asked to do defence work for a tobacco company. "I just couldn't do tobacco work."

He feels the same way today about the role lawyers are called upon to play in facilitating, on behalf of their clients, the economic activity generating fossil fuel emissions. "We have lots of laws on climate change – at the local level, national level, international level – but actually very little progress in relation to those laws and wide swathes of gaps where the laws aren't efficient," he says. Legal professionals need to reflect more on their commitments in the face of climate change.

For her part, Emilie Taman, a lawyer at Champ & Associates, cautioned that we should avoid conflating a lawyer's personal values with their client's values. She also expressed concern about what appears to be a growing tendency online to shame lawyers who take on unpopular cases. "We all have our own lines, but that's not to imply that the people that do the work on the other side of the line are bad people or unethical," said the former federal prosecutor. Her Ottawa firm represents plaintiffs in a punitive class action against the organizers of the Freedom Convoy last year.

Underpinning our democracy, Taman said, is an adversarial legal system in which we mediate conflicts. Even so, she noted that the right to legal representation remains a principle rooted in criminal law. In civil and commercial matters, "people could be a little more intellectually honest about why they do that work," she said, especially when hired by powerful interests.

Awanish Sinha is a litigation partner at McCarthy Tétrault who runs the firm's political risk practice. He emphasized the challenge of advising clients in an environment where the rules are either fuzzy, breaking down or in the process of being created anew. 

When the system is stable, "you make sure you're a reasonable and decent person to your clients, keep the secrets you're supposed to, follow the rules with respect to money and the way you interact with people and courts and the other side," he said. But turbulent times bring about fundamental changes in our policies and laws, which can disrupt how we approach ethical reasoning. 

A recent example of this is the overturning of Roe v. Wade in the United States – a ruling that had established a constitutional right to abortion for almost half a century. "The determination of what is compliance and what is virtue in terms of what dictates legal ethics is probably a larger conversation for [U.S. lawyers]," said Sinha. In a chaotic environment like this, lawyers must think carefully about "what's in the best interest of the profession, [and how] not to bring the profession into disrepute."

Of course, there are no easy answers. Complicating matters is how increasingly difficult it is for people to agree on the same factual underpinnings that inform our views. "That has major implications for the rule of law," said Taman.

According to Sinha, one way to weather the chaos is for lawyers to remain true to their core values. "But I don't think it's ever not going to be a struggle."

In figuring out what those core values are, lawyers could spend some time reflecting on the role empathy can play in resolving disputes. 

As Marcus McCann, a lawyer at Millard & Company, remarked, three years into a pandemic, it's worth contemplating that opposing counsel and litigants are perhaps not necessarily "at their best." 

"My clients are mostly in crisis," he said. "There's just this kind of hardness, and it's easy to bounce off that and get frustrated. And if you can put yourself in opposing counsel's shoes for a second, then it can help take some of the sting out."

Also, lawyers should be mindful of engaging kindly with people who see the world differently, even as they advocate strenuously for their position. In her work, Taman said she spoke with hundreds of people with strong, albeit sincere, views against vaccine mandates. Though she doesn't share their views, she worries that accusing them of belonging to a fringe minority will ultimately lead them to withdraw further into their ideological camps. 

Sinha agreed, adding that the legal profession is due for a wider discussion about empathetic skills lawyers need to master, on top of other skills demanded of them. "That, now more than ever, is important," he said. "I don't necessarily mean that in a kind of kumbaya way. I mean it in terms of understanding the situation that clients find themselves in and what will likely result in effective results."