Canadian Lawyer

16 S E P T E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m Is that always true or does the cal- culus change if a country is in or near a state of crisis? When U.S. President Donald Trump imposed the first ver- sion of his infamous travel ban in Jan- uary, thousands of U.S. immigration lawyers, including lawyers from major firms, went to airports to help those affected. Mostly, this was spontane- ous and unorganized, but some legal organizations — such as the American Civil Liberties Union — had an impor- tant co-ordinating role. Mind you, as interesting as this event was, it fell far short of a partisan and concerted effort by the legal profession as a whole. And the initiative was in response to a par- ticular executive order promulgated by the president and hardly a frontal and comprehensive attack on the Trump administration. But suppose things got a lot worse. Suppose the very rule of law was in jeopardy because of a government's action and attitude. Suppose a govern- ment was trying to suppress freedom of speech. Suppose that part of govern- ment repression was attacking the legal profession itself — perhaps even throw- ing lawyers who opposed the regime in jail. Let's say, in this hypothetical case, it was clear that the government had to be replaced before the situation could improve. What are the ethical obligations of individual lawyers and the organized legal profession in circumstances like these? An individual lawyer is obliged to protect and enhance justice and access to justice (not all do). A bar association, or any lawyers' organization, is likewise obliged to protect and enhance justice (this doesn't always happen). These are fundamental ethical obligations. At the end of the day, this is what being a law- yer is all about. But what kind of action, exactly, in the so-called real world, do these obligations require? Consider Pakistan as a case in point. In that country, the government and the legal profession have long been at odds with one another. In 2007, something called The Lawyers' Move- ment began a complicated and some- times violent series of protests against the suspension, in March of that year, of Chief Justice Iftikhar Muhammad Chaudhry by President Pervez Mush- arraf, who alleged misconduct and mis- use of authority by the chief justice. (The real reason for the suspension s it ever OK for a bar association to be politically partisan? I don't mean making technical criticisms of proposed legislation or that sort of thing. Bar associations are often involved in the government process in that way — it's fine and, indeed, often helpful. I don't think such activity could be described as partisan. No, I'm talking about actively opposing policy in some broad way, being generally opposed to a government and its objectives or supporting opposition to the government. I'm talking about trying to hobble or even replace a government or its leader. Your instinctive response, I'm sure, is that in a country like Canada it's not the job of the organized legal profession to oppose government. Individual lawyers, of course, may be partisan and active politically, but it would be inappropriate, even dangerous, for bar associations to do collectively what their members are free to do individually, to oppose political platforms or policy or to try and constrain or even replace a government. L E G A L E T H I C S O P I N I O N @philipslayton SCOTT PAGE The political tipping point Lawyers in Pakistan have been pushing for regime change. Could or should that ever happen in Canada? By Philip Slayton I

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