The legal profession is one of the few jobs left where your role is to unapologetically fight. And fighting means throwing punches, taking punches, and having the courage of your convictions.
But we now find ourselves at a legal and societal crossroads, where the social pressure to conform to social justice initiatives is set to undermine the independence of lawyers and rob them of their most prized possession — the ability to fight. To fight without fear, without favour, and without wondering whether there will be repercussions for taking an unpopular stance.
Since I wrote a post on the danger of the Law Society’s re-education efforts for B.C. Lawyers ( http://litigator.blog/re-education-in-the-name-of-social-justice/) I have heard from at least two lawyers who have said they do not wish to be publicly associated with an attempt to resist these efforts, even though they strongly disagree with the Law Society’s re-education campaign. Why? Fear. They fear being “blackballed” or bringing negative exposure to the organizations with which they are affiliated. This is the clearest example yet of how once-independent professionals can be cowed by social and regulatory pressure into towing a line they do not believe in.
But is this the kind of society we want? One where lawyers are afraid of their own professional regulator? Where lawyers censor themselves, afraid to take unpopular positions in public? And if lawyers are afraid to take unpopular positions in public, who else will?
This is a new feeling for many lawyers, but criminal defence lawyers know what it’s like to stand against societal disapproval. Fortunately, we have tough, skilled defence lawyers in Canada who know the value of fearless advocacy. Marie Henein is best known for defending Jian Ghomeshi and earning him an acquittal on all charges of sexual assault in 2016. She understands that real advocacy starts with a willingness to fight hard for your client, regardless of the political or social forces in play.
“We weren’t making cupcakes, we were protecting people’s constitutional rights and trying to save people from a loss of liberty,” she said. “There really wasn’t a lot of time to sugar-coat constructive criticism.” Marie Henein
Our Law Societies seem to have forgotten that being an effective advocate means being an independent advocate. The Ontario Law Society attempted to coerce its lawyers into developing a “statement of principles” that would have required them to sign on to a social justice initiative that was unrelated to the practice of law. The B.C. Law Society is now attempting to do the same with an aboriginal “cultural competency training” re-education campaign: https://www.cbc.ca/news/canada/british-columbia/bc-law-society-lawyers-indigenous-1.5389177
But ask yourself this question: if you’ve been charged with a criminal offence — let’s say it’s a criminal offence against an aboriginal person — how would you feel if every single person involved in your trial — including your own lawyer — had been indoctrinated into a collective guilt mind-set that saw all aboriginal people as victims of oppression, and you as the oppressor? How would you feel about your chances then? Would you feel like you were being given a fair trial?
Social Justice initiatives are fine when they are voluntary. But they become a form of authoritarianism when they compromise individual liberty and cast doubt on the independence of lawyers and the justice system. The fact that some of my colleagues are afraid of publicly speaking against “cultural competence training” is all I need to know that this initiative compromises the independence of lawyers. Apart from that, it is ethically wrong and socially corrosive. Lawyers are part of the justice system, and for that justice system to be seen as fair and impartial, lawyers must also be seen to be independent, untainted by politics, social policy, or social justice. As Marie Henein recently said:
“No person in this country should ever walk into a courtroom and feel like they are fighting their elected government or any sort of political factors at all,” she said.
“There are times you agree with what happens in a court, there are times you don’t, and that’s fine. But what you don’t do is you don’t put your finger and try to weigh in on the scales of justice.”
The Law Society of B.C. is not putting their finger on the scales of justice, but they are firmly putting an ideological thumb on all B.C. lawyers in an attempt to force them into historical re-education. If the Law Society feels that lawyers should read history, they can put a polite message on their Annual Report suggesting that lawyers do so. But mandatory re-education is not part of the Law Society’s mandate, and threatens to compromise every lawyer’s ability to act in the best interests of all clients and the justice system as a whole.