Public office and standards of conduct
Mulcair-Laskin: Whose role is it to pass judgment on lawyers who hold public office?
Illustration by ImageZoo / VEER
In April, NDP Leader Tom Mulcair captured headlines by supporting calls for an investigation into allegations about Chief Justice Bora Laskin and the Supreme Court’s patriation decision made by historian Frédéric Bastien. After the Supreme Court unsurprisingly announced that its internal inquiry had not unearthed any relevant information, Mulcair sharply criticized the high court for failing to undertake a broader inquiry. On twitter (@ADodek), I characterized Mulcair’s attack on the Supreme Court as uninformed and dangerous. As a lawyer, Mulcair should have known better.
My question here is whether a higher standard of conduct is expected of Mr. Mulcair because he is a lawyer.
I pose this question because all codes of conduct for lawyers purport to regulate the conduct of lawyers in public office and insinuate that lawyers’ standards of conduct are higher than public officials’.
Thus, the Federation of Law Societies Model Code of Conduct provides: “A lawyer who holds public office must, in the discharge of official duties, adhere to standards of conduct as high as those required of a lawyer engaged in the practice of law.” The rationale for the rule is explained in the commentary: “Because such a lawyer is in the public eye, the legal profession can more readily be brought into disrepute by failure on the lawyer’s part to observe its professional standards of conduct.” This language is based on longstanding provisions in the CBA Code of Professional Conduct.
These codes seem to assert that lawyers in public office should be held to a higher (lawyer) standard than that which applies for other public officials.
All lawyers are instructed to “encourage public respect for and try to improve the administration of justice”. The Federation’s Model Code is explicit that this obligation applies to lawyers generally, however they are acting, and that “a lawyer’s responsibilities are greater than those of a private citizen.”
The provision which could apply to Mr. Mulcair’s conduct is the admonition to lawyers to “take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations.” Lawyers in public life are told to be particularly careful in this regard “because the mere fact of being a lawyer will lend weight and credibility to public statements.”
"Do we really want law societies policing the conduct of lawyers in public office?"
That last statement may be wishful thinking on behalf of the bar. In any event, similar provisions do not exist for the Code of Ethics for Advocates of the Barreau de Quebec and hence would not apply to Mr. Mulcair.
Do we really want law societies policing the conduct of lawyers in public office? I don’t think so.
And, as a general matter, they don’t. In part, this is because courts have told law societies to “back off” when it comes to lawyers in public office.
This dates back to a 1965 incident involving Quebec Minister of Justice Claude Wagner (father of SCC justice Richard Wagner). Minister Wagner made a speech in Drummondville in which he criticized the conduct of a judge. A complaint was made to the Barreau de Montreal. The Quebec Court of Appeal held that the minister was not subject to the disciplinary jurisdiction of the Bar in respect of conduct exercised in the course of his official or Crown functions.
A review of disciplinary proceedings involving lawyers in public office reveals that in almost every case, they are subject to discipline not for their activities in public office but for one of two reasons: either for professional misconduct qua lawyers, for example, forging a signature on a document, deceiving clients, financial misconduct et al; or for criminal convictions.
In short, law societies have shown very little interest in actually regulating lawyers in public office.
And that is a good thing, for a number of reasons.
First, lawyers have to be able to criticize courts and judges (as well as the conduct of other lawyers). In the Supreme Court’s 2012 decision, Doré v. Barreau du Québec, Justice Abella said “lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.” There is a dangerous trend of using the law society disciplinary process to try to silence legitimate criticism of other lawyers. Such use of law society disciplinary processes is protectionist at best and anti-democratic at worst.
Law society disciplinary proceedings may be used to carry over battles from the political forum. We should be concerned about such “policitization of the disciplinary process”. After Belinda Stronach crossed the floor in 2005 to join (and save) Paul Martin’s minority Liberal government, a Conservative MP launched law society complaints against former Ontario premier David Peterson, federal Health Minister Ujjal Dosanjh and the prime minister's chief of staff Tim Murphy for offering her and another Conservative MP, Gurmant Grewal, cabinet positions in exchange for their support in a key budget vote. Those law societies rightly declined to pursue any of those complaints.
"Law society disciplinary proceedings may be used to carry over battles from the political forum."
Similarly, colourful Cape Breton mayor John Morgan battled with the Nova Scotia Barristers’ Society over comments he made that were far more disrespectful than Thomas Mulcair’s. His case went to a discipline hearing. Ultimately, Morgan got off on “a technicality” and the Barristers’ Society took a beating in the press. Morgan had violated no law. The electorate should judge his conduct, not the Barristers’ Society.
Law societies should stop pretending to regulate the conduct of lawyers in public office.
As a lawyer, Mr. Mulcair should have known better than to claim that the Supreme Court had some non-existent power to conduct an inquiry into relations with the executive branch or to demand documents from them. He should have known better than to use the SCC as a political punching bag. But his statements will be judged in the court of public opinion and not by the Barreau du Quebec. That is how it should be for lawyers who hold public office and law societies are fooling the public and inviting mischief by pretending otherwise.
Adam Dodek is a member of the Public Law Group at the University of Ottawa’s Faculty of Law where he teaches a seminar on the Supreme Court of Canada. His book The Canadian Constitution was published in April.