When to bow out

Mary M. Cheh recently published a paper for the Social Science Research Network, entitled, “Should Lawyers Participate in Rigged Systems:  The Case of the Military Commissions”.

Professor Cheh argues that these tribunals are governed by rules of evidence and procedure that are fundamentally unfair.  The accused can be convicted on secret evidence, hearsay, and evidence obtained by torture and coercion, and there is no civilian judicial review.  Under such circumstances, Professor Cheh argues that counsel who refuse to participate in proceedings before those tribunals take a stance that is fully defensible from an ethical point of view.

Professor Cheh’s paper raises an interesting question.  The Military Commissions are not the only example in recent memory where participation by ethical counsel seems to be questionable.

Under what other circumstances is it appropriate for a lawyer to refuse to participate?

Recent history suggests three possible circumstances where non-participation is justified:

a.         Circumstances where the system is rigged against the accused;

b.         Circumstances where the applicable law to be applied is fundamentally unjust; and

c.         Circumstances where the tribunal is itself corrupt.

Each of these presents the conscientious lawyer with an ethical choice.

Rigged systems

Professor Cheh’s paper considers one example of a “rigged system” in which North American lawyers may find themselves called upon to participate for the benefit of a detained client.  Regrettably, the U.S. Military Commissions are not the only such system in the post-9/11 era.

The Supreme Court of Canada’s decision in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9 recently struck down parts of the Immigration and Refugee Protection Act because it violated Canada’s Charter of Rights and Freedoms.

Under that Act, the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness were able to issue a “security certificate” declaring that a foreign national or permanent resident is inadmissible to Canada on ground that, among other things, the person named in the certificate poses a security risk.  The “security certificate” generally leads to the detention of the person named in the certificate.

The person named in the certificate is given the right to challenge both the certificate and his or her detention before a Federal Court judge, however the process was mired in secrecy.  Generally, all of the information that formed the basis of the certificate was kept secret both from the person named in the certificate and his or her lawyers.

The security certificate must initially be reviewed by a Federal Court judge within 48 hours.  In the case of a foreign national, detention is automatic.  Foreign nationals named in the certificate cannot apply for review until 120 days after a judge determines the certificate to be reasonable.

There is no appeal or judicial review of the judge’s determination on the reasonableness of the certificate.  If the judge finds the certificate to be reasonable, it becomes a removal order, which cannot be appealed and which may be immediately enforced.

Canada’s federal government has since proposed amendments that would enable the person named in a security certificate to retain “special counsel” from a list of government approved lawyers who have obtained security clearances.  Still, the lack of openness in these proceedings is troubling.

Professor Cheh’s argument is that while ethical codes would not prohibit or compel counsel to participate in these systems, these systems undermine counsel’s ability to provide effective representation.  They do so by preventing counsel from serving the client competently.

Competence is undermined by withholding relevant information from counsel, as seen both in the security certificate cases from Canada, and the Military Commissions from the United States.

In addition, the Military Commissions undermine competence by limiting the resources to which counsel have access, and by so significantly impeding counsel from handling other cases in his or her practice that only the least capable lawyers would be likely to accept Military Commission cases.  In addition, counsel’s participation is conditional upon approval that all conversations between the lawyer and his or her client may be monitored.

In the end, Professor Cheh argues that each individual counsel must make a decision about whether he or she will participate.  The decision involves weighing the amount of good that an individual lawyer can do for the client and the administration of justice under such a system, against any risks to personal safety and the risk of lending credibility to a highly questionable regime for military justice.

Systems of fundamentally unjust law

As Professor Cheh points out, the case of the lawyer acting in a tribunal whose procedures are rigged in favor of one party or the other must be distinguished from the case of the lawyer acting within a system of unjust laws.

Counsel’s very participation in a proceeding that applies law that is fundamentally unjust risks lending credibility to the laws themselves.  Professor Cheh cites the example of French lawyers applying the anti-Semitic laws of the Vichy regime during World War II, arguing over such questions as whether a person with one set of Jewish grandparents and one set of non-Jewish grandparents counted as a Jew.  By acting in such cases, counsel endorses the racially discriminatory laws.

Under our current system, laws of this sort would not likely survive constitutional scrutiny.  The question might still arise, however, in cases where counsel act in a private arbitration, or before a tribunal in a country with a developing legal system.

The question of applying fundamentally unjust law might arise in the course of preparing a legal opinion on whether a detainee may be transferred to another jurisdiction for “harsh questioning” under a program of extraordinary rendition.

As in the case of the rigged system, the ethical cannons do not contain any prohibition against acting in such a situation, nor do they contain any obligation to take such cases.  Counsel must make an individual decision.

A lawyer may choose to do the best that he or she can for the client within the law.  By acting in such a case, counsel may even be able to demonstrate the unfairness in the law.  In the case of human rights violations, counsel might be able to challenge the law against international law, or other constitutional documents.

These measures must be weighed against the risk of appearing to endorse such law, and incurring risks to counsel’s own personal safety.

If counsel conscientiously believes that a particular law is fundamentally unjust - that is to say, not merely unfair or ill-advised, but sufficiently unjust that it offends the conscience - then, in my view, counsel is ethically justified in declining to participate in any application of that law.

Corrupt tribunals

The case of the corrupt tribunal must also be distinguished from the situation discussed in Professor Cheh’s paper.  In the case of a corrupt or unjust tribunal, counsel may be faced with the question of whether to decline participation, not because the procedures are unfair, or the law to be applied is unjust, but because the tribunal itself is corrupt or partisan.

This situation was demonstrated in Pakistan, where General Pervez Musharraf, in a bid to preserve his grip on power, declared a state of emergency in November 2007, and suspended the constitution with a Provisional Constitution Order.

When the Supreme Court of Pakistan convened to issue an order barring the government from proclaiming emergency rule, the justices were detained.  The Chief Justice was summarily fired.  The remaining justices were required to swear allegiance to the Provisional Constitution Order before they would be reinstated.

At one point, the Pakistani government installed justices that were prepared to swear allegiance to the PCO.

The Pakistani Bar responded by threatening to boycott the courts.

Once again, there are no hard and fixed rules that would compel or prohibit counsel from carrying on a proceeding before a court in such a situation.  Counsel is faced with the same dilemma and must make his or her own decision, weighing all of the factors that apply in the first two examples.

In my view, a decision to refuse to participate would be fully defensible from an ethical standpoint, and may even be a wise choice for the conscientious lawyer who is wary of having his or her standing as a lawyer and an officer of the court used to ascribe credibility where none is deserved.

Ethical Guidelines

How, then, should a lawyer proceed, once the decision is made to refuse participation on conscientious grounds?

In Canada, the analysis of how a lawyer may ethically refuse to participate in a proceeding before a judicial tribunal begins with Chapter XIII of the Canadian Bar Association Rules of Professional Conduct.

That Rule states that lawyers should encourage public respect for the administration of justice, and should try to improve it.

The commentary, however, is instructive.  Commentary no. 1 states that they lawyer’s continuance in the practice of law implies a basic commitment to the concept of equal justice for all within an open, ordered and impartial system, but that those institutions will not function effectively unless they command the public’s respect.

The Commentary suggests that to maintain the public’s respect, lawyers must work to constantly improve the administration of justice.

Because of lawyers’ training and experience, lawyers are in a unique position to see the strengths and weaknesses of the present system, and they should take the lead in making the required improvements.  This, naturally, requires lawyers to take a critical look at the system in which they participate.

Lawyers should never hesitate to speak out at injustice; however, what they say must not be petty or intemperate.  A lawyer must take care not to destroy public confidence in the legal system by unsupported and irresponsible allegations of corruption or partiality.

Criticism leveled at the administration of justice must always be made with a bona fide belief that the criticism is justified.  Proposals for change must likewise be reasoned and made in good faith.

Refusal to participate usually means that the lawyer is withdrawing from the representation, and accordingly withdrawal should be made with a view to Chapter XII.  The essence of that rule is that withdrawal should not seriously prejudice the client.

These guideline are echoed in the American Bar Association Model Rules of Professional Responsibility.

Rule 3.5 provides that a lawyer should not engage in conduct intended to disrupt a tribunal.  Rule 8.2 provides that a lawyer must not make false comments about the qualifications or integrity of a judge, adjudicatory or public legal officer, or candidate for election to judicial or legal office.

The common thread is that any objection must be bona fide.  Counsel must conscientiously believe that the position that he or she is taking in refusing to participate is in the best interests of the public.

Counsel’s criticism must be reasoned and considered, with alternatives being proposed that are reasonable and bona fide.

Conclusion

Admittedly, the circumstances under which counsel is likely to be faced with the dilemma of declining participation are extreme.  They are not, however, inconceivable in the post 9/11 era. 

Counsel must never be seen to be the mere mouthpiece of a client.  A lawyer must always be cognizant of his or her role when carrying out a representation and this requires a critical examination of the system in which the profession is called upon to operate.

Under the correct circumstances, and provided that counsel’s refusal is undertaken with a view to all of his or her professional obligations both to the client and to the administration of justice, the decision to decline to participate is one that is entirely valid for a conscientious lawyer, and fully defensible from an ethical standpoint.