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vility, counselling or behaving dishon- ourably, and misleading the court, have increased to 35 per cent of all complaints in 2008, from 11 per cent in 2004. Ontario leads on the civility issue, although most other provincial law soci- eties, and the Canadian Bar Association, genuflect to the concept. For example, John Hunter, a recent president of the B.C. law society, wrote in a message to his members, with just a slight touch of xenophobia, "Civility and mutual respect are aspects of professionalism that need emphasis in these days of the portrayal of aggressive and preening lawyers on American television." Derry Millar, the LSUC treasurer, says, "The administration of justice depends upon the parties involved treating each other and the proceedings with respect." In recent months, Millar has orchestrated something called the Civility Forum, a series of meetings throughout Ontario supposed to provide an opportunity for members of the legal profession to dis- cuss the importance of civility. Those who are skeptical of the civil- ity movement quickly point out the duty of a lawyer to be a zealous advo- cate for his client. The commentary on Ontario's Rule of Professional Conduct 4.01(1) about a lawyer's responsibility as an advocate, says: "The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case. . . ." Many lawyers believe fiercely that no holds are barred when representing someone, particularly in criminal matters and family law. Whenever I have suggested in these pages that sometimes a lawyer should back off, perhaps because of community standards that stand in the way of what he wants to do, I get lots of e-mails tell- ing me that I just don't understand the job of an advocate. The commentary on Rule 4.01(1) goes on to say: "The lawyer must dis- charge this duty . . . in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy. . . ." Balancing these two apparently coun- tervailing demands — zealous advocacy on the one hand, fairness and courtesy on the other — is the nub of the civility dilemma. A couple of years ago, Alice Woolley, a law professor at the University of Calgary, published an article in the Osgoode Hall Law Journal challenging the civility movement. First of all, argued Woolley, excessive emphasis on profes- sional courtesy and collegiality inhibits the search for truth about another law- yer's conduct. She wrote: "The law of defamation still exists to give protection to lawyers who are unfairly subject to criticism by their colleagues. The addi- tion of law society discipline fosters pro- tectionism unnecessarily and suppresses legitimate criticism." More importantly, Woolley argued the enforcement of good manners may obscure the real ethical principles at play. Often, for example, the focus should not be on whether a lawyer was rude, but on whether he was disloyal to the client or violated his duty to ensure the proper functioning of the legal system. Civility is not a proxy for these more fundamen- tal considerations. Woolley concluded: "What is required is strong and cogent debate about how lawyers can be ethical. . . . The civil- ity movement should be abandoned in favour of this more difficult but ultimately more fruitful and important task." That is how she resolves the civil- ity dilemma: forget civility, and focus on what's underneath. I'm with professor Woolley. Fussing about politeness, as an end in itself, is silly. Sure, we should all be nice to each other, but it's not the end of the world if sometimes we're not, and sometimes we shouldn't be. On occasion, hard things need to be said to people who don't want to hear them. The picture of lawyers and judges getting together and chatting, delicately one presumes, about polite- ness in the law is faintly risible. Where is Monty Python when you need him? OK, I better stop now, before I start get- ting really sarcastic. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com. ntitled-7 1 www. C ANADIAN Law ye rmag.com M AY 2010 19 4/12/10 4:11:36 PM