Do lawyers have an ethical obligation to represent the unpopular?
This was the topic for the Toronto Lawyers Association 8th Annual Current Topics in Ethics & Professionalism program last year. It’s one of those questions that come up all the time. Most think they know the answer — lawyers should represent the unpopular, that’s part of their job — but some people have nagging doubts. At the TLA program the problem was discussed by a savvy panel — lawyers Saron Gebresellassi, Danielle Robitaille and Carol Hansell, and public relations guru Jaime Watt, chairman of Navigator Ltd., a crisis communications firm (I chaired the discussion).
I think there are two principal reasons (which sometimes overlap) why a lawyer should represent the unpopular or odious client. First, the justice system entitles every person to representation (most need it desperately) and a lawyer has a professional obligation to provide that representation if called upon to do so. Second, there are fundamental principles in our legal and political system — freedom of expression, for example, or freedom of assembly — that a lawyer must defend if need be, and in doing so they may end up representing someone whose beliefs or actions they abhor.
But there also are powerful reasons not to represent an unpopular or odious client. First, it might be a violation of a lawyer’s core beliefs, damaging to his or her personal identity. Second, there may be legitimate fears for the physical safety and psychological well-being of the lawyer and their family. Third, representing an unpopular or odious client may make the lawyer highly unpopular professionally, politically and socially, threatening their career or standing in the community.
How can these competing considerations be resolved? The reasons to represent the unpopular and odious are reasons of belief and principle. The reasons not to do so are personal. In my view, belief and principle should trump personal considerations. There are well-known Canadian examples of lawyers who reluctantly represented odious clients at considerable cost to themselves. Robert Shantz was Clifford Olson’s lawyer. Olson pleaded guilty in 1982 to the murder of 11 children in British Columbia. Shantz has said that his representation of Olson and the public opprobrium he suffered as a result affected his health and damaged his familial and personal relationships. (Shantz died in 2015.) Peter Ritchie defended Robert Pickton, the B.C. pig farmer convicted in 2007 of murdering six women. Ritchie has said, “Sometimes lawyers have to defend highly unpleasant cases, but it’s not because they want to do those sorts of cases.” When he was representing Pickton his office was flooded with hate calls. Toronto criminal defence lawyer John Rosen stepped forward in 1994 to represent Paul Bernardo. Most legal observers give Rosen full credit for doing so, and he finished the case with his reputation enhanced.
Sometimes the cases may be less horrible, but the consequences for the lawyers are still unpleasant. In February 2018, Gerald Stanley was acquitted by a Saskatchewan jury in the shooting death of Coulten Boushie, an Indigenous youth. The trial and its outcome were widely criticized. Shortly afterwards, Stanley’s lawyer, Scott Spencer, left his law firm. It was reported that his partners wanted him gone because of negative publicity stemming from the controversial proceedings. Michael Bromwich, a lawyer for Dr. Christine Blasey Ford in the Brett Kavanaugh September 2018 U.S. Supreme Court confirmation hearings, was forced to resign from his law firm when his partners objected to his taking on Ford as a client. Prominent U.S. litigator David Boies is one of the lawyers representing Harvey Weinstein. He has been doing so aggressively and has been called a thug. He told The New York Times, “You don’t know all the facts when you take on a client, but once you do, you have a duty of loyalty. You can’t represent them halfway.” In the words of the Times, “For the first time in his career, the most vaunted advocate in the United States has been a defendant in the court of public opinion.”
These issues don’t only arise in dramatic criminal or sexual harassment cases. Corporations have been known to behave badly. Pharmaceutical giants may fix prices. Mining companies may exploit cheap labour or violate human rights in South America or Africa. Sometimes companies are called to legal account at home (look at the Ontario case of Choc v. HudBay Minerals). They need — and, of course, get — skilled and aggressive legal representation. But the lawyers who represent these corporations can be severely criticized, increasingly so as society is polarized between the advantaged few and the disadvantaged many.
Then there are lawyers who go to bat, not for a person, but for a principle. Perhaps the most famous modern example is the 1977 representation of the National Socialist Party of America, a neo-Nazi group, by the American Civil Liberties Union. The NSP wanted to march through Skokie, Illinois, a Jewish suburb of Chicago, dressed in Nazi uniforms. The local government issued an injunction prohibiting the marchers from wearing Nazi uniforms or displaying swastikas. The ACLU successfully appealed the injunction, arguing that it violated freedom of speech and assembly rights. The ACLU lawyer who represented the NSP was Jewish. Subsequently, 30,000 ACLU members, about 25 per cent of its membership, resigned. The Canadian Civil Liberties Association has on occasion played a similar role, particularly when it was led by its long-time legal counsel Alan Borovoy, who died in 2015. In the 1980s, for example, the CCLA defended the right of Ernst Zündel and James Keegstra to deny that the Holocaust took place. Borovoy, who was Jewish, argued that “freedom of speech is often most necessary when it creates some level of tension or unrest.”
It takes courage to do this, to stand up for an unpopular or hated person, or fight for a principle in difficult circumstances, but who ever said it was easy to be a righteous lawyer?
A collection of these columns — How to Be Good: The Struggle Between Law and Ethics — was published in 2017.