After his vitriolic attack on the negative state of the legal profession in his book, Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession, Slayton owes his readers a positive analysis of what is to be done to remove the smell from the “state of Denmark.” His suggestion, however, that lawyers abandon their “moral neutrality” and accept or reject cases on their own moral cognizance is not only misleading, but actually damaging to the justice system.
Slayton’s argument for “moral neutrality” is made through the employment of the following analogy: Lawyers, like taxi drivers (apologies to taxi drivers), take their clients where they want to go. Performing this function is the lawyers’ only material concern. Like the taxi driver, the lawyer is unconcerned with the destination.
This is the “morally neutral” position that Slayton identifies as operative in the legal profession and one that must be overhauled. He colourfully suggests that if asked, the taxi driver will take the passenger to a “whorehouse” and in like fashion, the lawyer is equally unconcerned with the character or result of his or her role.
However, Slayton fails to mention there is an ethical code of conduct that is binding on practising lawyers. For example, lawyers in Ontario have a positive duty to not assist in wrongful conducts in accordance with the Law Society of Upper Canada’s Rules of Professional Conduct.
Among other things, the Rules prohibit a lawyer from knowingly assisting in any dishonesty or illegal conduct (Rule 2.02(5)); impose a duty to report the matter “up the ladder” of responsibility within an organizational client which has acted or is acting dishonestly or illegally, and to withdraw service if the wrongful conduct continues (Rule 2.02(5.2)); and prohibit a lawyer from using means that brings the profession or the administration of justice into disrepute (Rule 3.01(2)).
In addition, unlike a taxi driver, a lawyer cannot adopt the stance “what I don’t know won’t hurt me.” A lawyer has a positive duty to be on guard against becoming the dupe of an unscrupulous client (commentaries to Rule 2.02(5)).
Any breach of the Rules may result in disciplinary actions and/or the revocation of their licences to practise. Lawyers in other Canadian jurisdictions are likewise subject to similar rules of ethical conduct.
So much for the misleading analogy, but wither moral neutrality?
If we allow, as Slayton proposes, individual lawyers to accept or reject cases based on personal moral judgments, we are aiding and abetting the lawyers’ personal morality to usurp the legislative process in a democratic society. For it is the legislative process that is the facilitator of equality, not personal fiat.
Not only is individual morality not logically primary in dispensing social justice, the very structure of the legal and democratic process is aimed at circumventing the influence of atomistic moral judgments (on behalf of any one individual) in favour of a broader canon of social equity and justice via the judicial process.
The advocating of “cause lawyers” by Slayton is neither innovative or, in this instance, relevant. Many lawyers choose to work for social and political organizations that advance a wide variety of causes, ranging from pro-life to pro-choice, and pro-union to pro-management.
It is one thing to say that a lawyer is free to work for a particular employer or client committed to a certain cause; it is another to imply that a lawyer has a right to deny someone the democratic right of legal representation by reason of the lawyer’s personal morality.
Slayton’s argument assumes that if his advice were followed, “moral neutrality” would naturally be supplanted by “moral virtue.” However, he provides no evidence as to why this would be the case.
Perhaps it would be less worrisome to accept Slayton’s position if the demographics of the legal profession were more representative of the general public than they currently are.
In “Moral neutrality is no longer enough,” Slayton follows a tendency shared by so many lawyers-turned-writers. That is, they possess a strong tendency to view themselves as modern day “philosopher kings.”
Imagining lawyers as a special class of persons with an attendant super perspicacity of moral discrimination is a popular misconception. But what special moral training have lawyers received, other than a training in the law? To believe that by examining their own conscience lawyers will be able to uncover the moral truth is, at best, naive and at worst plays into a misunderstanding of the broader system of social justice in a democracy.
Nicole Suen Phillips is a lawyer in Toronto. Patrick J.J. Phillips teaches Philosophy at York University. They can be contacted at [email protected].
