Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 8 17 of the law. Our system, they will tell you, depends upon it. There is another way of looking at things. Ten years ago, I got into trouble in these pages when I wrote: "a lawyer, as a well-educated creature of his community, should take into account the values and well-being of that community when he does his work." I had in mind lawyers who shared some responsibility for the 2007/8 financial meltdown. That column garnered a lot of criticism. One distinguished lawyer wrote, "I wonder if your view of law- yer morality would be the same if you needed to retain a lawyer." (A low blow, I thought.) Another correspondent ranted on about "single issue fanatics." I didn't think it was so radical to suggest, as many bar association rules of conduct state, that a lawyer "should not knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable." I still don't. Vigorous representation, yes, but, sometimes, vig- orous representation can go a step too far. Readers will remember that, as a by- product of the Jian Ghomeshi affair, some argued that a lawyer defending a person accused of sexual assault had social obliga- tions that mitigated their responsibility to the accused, obligations that included not embracing myths and stereotypes about women and sex. Then there's the flip side, the dilemma of the defendant. What advice do you give to someone who is accused of sexual harassment, particularly if the accusation seems weak? Should they fight back, all guns blazing, sue for wrongful dismissal and defamation and whatever else, try to cow their accuser and rescue their reputa- tion? Or is it better, as social media does its gruesome hatchet job, to recognize the apparent hopelessness of the situation, no matter what the facts are, to accept defeat and slink away in silence, as so many of those who are accused seem to do even if the allegations don't seem particularly credible? Does it matter whether you, the lawyer, thinks the accusations about your client are overblown or false? I don't understand why most of those recently accused of sexual harassment haven't fought back. Maybe it's because they are completely compromised (par- ticularly when there are multiple accusers) and fighting back seems futile. Better to move to Patagonia and start a new life. Maybe it's because they can't afford to hire a lawyer (although some lawyers may take these cases on a contingency basis). Maybe it's just because they have no stomach for a public fight, which could keep the story alive and further damage their reputation. Savvy libel lawyers often advise that the game isn't worth the candle. It's difficult to know what to do, but here's what I think. Don't represent some- one who wants to go public with highly dubious claims of sexual harassment that will destroy lives and careers. Don't engage in backdoor threats of public- ity designed to extort money. Do put the accused to the test by urging a vigorous defence and counterattack — that's if they truly consider the accusations about them to be false. Philip Slayton's latest book, How To Be Good: The Struggle Between Law and Eth- ics, was published in October. Visit gpllm.law.utoronto.ca Questions? gpllm@utoronto.ca Apply today. ONE YEAR | PART-TIME | FOR LAWYERS AND BUSINESS LEADERS Master the Law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership ntitled-6 1 2017-07-12 1:19 PM

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