On the surface, this seems like a reasonable plan:  why waste money on separate representation when no one is at odds with anyone else?

Everybody’s happy - they are all about to embark on a journey that will net them lots of money, and they don’t need a lawyer to rain on their parade.

These adventures rarely end well.

Take the unfortunate case of Gallop v. Mulatz, 2008 SKCA 29.  Mark Mulatz was a Regina, Saskatchewan lawyer who assisted Joy Gallop in acquiring a commercial piece of real estate in a transaction that can only be described as Byzantine.

Joy’s father, Al Abdoulah, loaned his brother, Oscar, $90,000.  As security for the loan, Oscar was to transfer the commercial property, then the subject of a mortgage in the amount of $263,600, to Al with an agreement that he would “re-purchase” the property once the loan had been repaid.

The rent at that time substantially exceeded the mortgage payments, and so the property was turning a tidy profit each month.  Al decided his daughter should benefit from the transaction by collecting the rents while Oscar was repaying the loan.

 Mark Mulatz cobbled together a loan agreement between Al and Oscar, and side agreement with Joy.  He represented all parties, and apparently sent no one for independent legal advice.

Mr. Mulatz never told Joy that one of the tenants was operating under bankruptcy protection.  He also never told her that Oscar’s promise to re-purchase the property was unenforceable under Saskatchewan law.

Eventually, Joy was subsidizing the property, and Oscar defaulted on the loan agreement and the agreement to re-purchase the property.  Joy eventually re-sold the commercial property at a loss.

Not surprisingly, she sued Mark Mulatz for negligence claiming she would never have embarked upon this transaction had he carried out his duty to advise her of the legal and financial risks involved.

The trial judge awarded Joy over $116,000 in damages.  Both she and Mulatz appealed the decision, and the award was reduced to approximately $84,000.

The most troubling aspect of this case is that it is all too common.  On the surface, Mark Mulatz was acting for a family business.  Presumably, they would all cooperate, and everything would turn out for the best.

Lawyers, however, cannot afford that kind of optimism.  We are paid to worry, and we are paid well to do it.

The profession’s greatest value is in the ability to see the pitfalls and worst case scenarios.

Mark Mulatz had historically taken instructions from Al Abdoulah.  That arrangement should have continued, and both Oscar and Joy ought to have been referred out for independent legal advice.

While that might have appeared to the family to be unnecessary at the time, their view certainly changed when the transaction collapsed.

In the end, it was the lawyer who shouldered the blame.  The lesson is clear:  for your own protection, and for the protection of your clients, don’t try to be everybody’s lawyer.

They allege CNN perpetrated this heinous wrong when Jack Cafferty complained that the United States imports too much Chinese-made “junk with the lead paint on them and the poisoned pet food” and then went on to say the Chinese are ”… basically the same bunch of goons and thugs they’ve been for the last 50 years”.

The damages equate to $1.00 for every Chinese person, according to Liang Shubing, the beautician, and Li Lilan, a Beijing-based elementary school instructor.

Not satisfied with suing only in the Beijing courts, the plaintiffs have brought the same action in New York.

Where do we even begin?

Well, let’s start with the jurisdictional issues.  First of all, I have difficulty understanding how counsel in New York can accept the matter, and file the pleading, knowing that there is a pending lawsuit based on precisely the same act, claiming precisely the same damages in another jurisdiction.  One of the suits is subject to a stay application.

Let’s just assume that the Beijing suit should be stayed.

Secondly, where from where do Ms. Shubing and Lilan derive the mandate to advance the matter on behalf of every Chinese person in China?

Perhaps this is destined to be certified as a class-action.  Let’s assume that too, just for fun.

From where will the evidence come that every Chinese person is aggrieved?

I distinctly remember taking an oath, when I first became a barrister, that I would not bring frivolous and vexatious litigation to the courts.  The bottom line is that this lawsuit probably meets the textbook definition of “frivolous and vexatious”.

Counsel do the profession no favours in advancing it.

Counsel shows up in court, woefully unprepared, and actually states at one point that he “[tries] not to read that many cases”.

I was reminded of an appearance I made once in Master Michael Funduk’s chambers, when he was sitting as a registrar in bankruptcy.

One poor lawyer showed up barely familiar with her client’s case, and started flipping through her materials furiously every time he asked a question.

At one point, he took the lawyer to task.  In front of a full courtroom, he stood the matter to the end of the list and told her to go outside and get prepared.  “It is counsel’s duty to be prepared!” he said abruptly.

He was right.

The least counsel could do is to try to deliver some value for his or her retainer and give the client’s case an honest effort.

Good enough never is.

The title to Ted Frank’s article suggests Nicholas White’s lawyers made their client worse off than he was before he sued.  I disagree.

There is no evidence in the New Yorker article that suggests Nicholas White went to Anguilla on his lawyers’ advice.  Actually, there is good reason to believe otherwise.

Firstly:  According to The New Yorker, Nicholas White returned to his office to find a nasty letter taped to his computer by his colleagues, berating him for disappearing without saying anything to anyone.  If this is what caused White to decide to spend eight weeks away without leave, the loss of his job should not have come as a surprise.

If White’s lawyers got involved when White got back from his extended vacation, they may well have actually made his situation a bit better by obtaining a settlement for him, even if it wasn’t the $25 Million that he demanded.

Secondly:  To advise a client to misrepresent his or her injuries so that it appears that the damages to which the client might be entitled are greater than they are is to falsify evidence.  It would be very surprising indeed if White’s lawyers would risk their reputations and licenses by advising him to take that course of action.

I will say this, however:  Sometimes, clients become so fixated on a course of action that they can’t see that it isn’t in their best interests.  The most valuable service a lawyer can offer is to see what the client can’t.  The lawyer’s highest obligation is to give the advice that they believe, in their best judgment, will protect the client’s best interests.

I have great difficulty believing that Nicholas White’s lawyers would have overlooked that obligation.

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.

The facts of the case are simple:  Mr. Whelan’s teenaged daughters set out to make some French fries.  They put some cooking fat into a large pot and put the pot on their electric stove, leaving the burner turned fully on.  Then they went upstairs to their room and started fixing their hair, forgetting completely about the fat on the stove.

Soon, the fat caught fire, and the girls ran screaming out of the house to their father, who had been working on a vehicle in the driveway.  He ran back into the house and was able to put out the fire.

He called his insurance company and told them what happened, and then went out to his lawn to recover from the smoke and fumes.

A neighbor happened along and told him that if it was a fat fire that had been the cause of his loss, then his insurance company wouldn’t cover the loss.

What happens next is what I find disturbing.

Mr. Whelan goes back into the house, takes the pot off the stove and hides it in the garage.  When he gets back, the fire in his kitchen re-ignited, and the house was destroyed.

When the police arrived that Wednesday night, he told them he didn’t know what caused the fire, but that he put on an electric kettle for tea, and when he came back, he found the fire on the stove.  He told the same story to his insurance adjuster on Friday.

By Saturday, he was beginning to worry about having lied to his insurance company.  On Monday, he called the insurance company back and told them what really happened.

The insurance company denied the claim.  The trial decision ordered payment of the claim, however in my opinion, the case is wrongly decided.  The fact is that the insurer is within its right to deny coverage on any misrepresentation made on an insurance claim, by virtue of the principle that an insurance contract is a contract of utmost good faith.

Nevertheless, the question for our profession is this:  Why didn’t Mr. Whelan check out his neighbor’s advice with a real lawyer?  There is no answer to that question in the case report.

He had plenty of time to do so.  The fire seems to have happened on a Wednesday, and he only gave his insurance adjuster a statement on the following Friday.

Unfortunately, I’ve met too many people who would have done exactly what Mr. Whelan did - shy away from consulting a member of the profession.  They do it because they think no lawyer cares unless they stand to charge a fee.  Or they think their question is too insignificant.

From an ethical standpoint, when so much is at stake for a client in Mr. Whelan’s position, the proper way to deal with the question is to meet with the client and get all the facts.

I would hope most lawyers would recognize the importance to him and take the time and care to give him an answer - even at a fairly low cost.

The problem is that most people don’t think that would happen.  We need to work to correct that perception.

The issue involves a two year old murder case that has not yet been tried.  The accused’s original defence counsel had sought an adjournment on the basis that the Georgia legal aid system could not pay their $95 per hour fees and the anticipated expert fees at trial.

The prosecutor suggested that rather than have two private attorneys represent this accused, the judge could order their substitution with two public defenders salaried by the state.  The judge agreed.

The new lawyers moved to be relieved of their new assignment, on the ground that forcing this new file on them puts them in the position of defending the accused at the expense of their existing clients, since their current workload is excessive already.

In addition, the considerable work that the original attorneys had put into the case would be lost.

Also of concern would be outside counsel’s willingness to properly defend future clients if they must be concerned that a judge will substitute them at some later date.

What also appears to be at stake in this case is when a client’s choice of lawyer be overruled, and at whose instance.  It is well established that a client’s choice of counsel should be overruled only in the clearest cases.

In this case, the judge made the substitution at the prosecutors’ suggestion.  If a prosecutor can successful move for the removal of a defendant’s counsel because another one would be cheaper, the potential for abuse and distrust for the legal system should not be overstated.

One can only hope this unfortunate decision will be reversed on appeal.

What makes this case interesting is that at the same time he carried on the affair over which he is now being sued, Mr. Hunter sat on a disciplinary panel for the Law Society of Upper Canada that also dealt with allegations of sexual involvement between another Ontario lawyer and that lawyer’s client.  That lawyer was disbarred.

Now, I am not privy to the particular facts before each committee.  There may well be very good reason for the vastly disparate treatments.  Indeed, the news reports indicate that the disbarment case is still before the courts.

The case did, however remind me of this paper that I wrote back in 1995-96, when I was in my third year in law school at the University of Alberta.  This paper is over 10 years old, and the writing is that of a third year law student so it isn’t my to my standard for an academic publication, and the authorities are not up to date.

The basic premise, however, stands.  Back then, I argued that the Canadian Bar Association ought to adopt a specific rule prohibiting sexual involvement between lawyers and their clients.

At the time, neither the Canadian Bar Associations Rules of Professional Conduct, nor the American Bar Association Model Rules of Professional Responsibility contained specific rules.  In 2001, the American Bar Association adopted Rule 1.8(j), which provides that

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

The last time the Canadian Bar Association debated the question was in 2004, at a divisive meeting where the majority shouted down the recommendations of its Standing Committee on Ethics and Professional Issues, calling them “paternalistic”.  The Committee offered 2 options: the first was a rule based on the American Bar Association’s approach, while the second was based on the approach taken by the Nova Scotia Barristers’ Society.

Nova Scotia was the first Canadian province to institute a rule dealing with sexual relations between lawyer and client.  Nova Scotia’s rule 7.5 from the Barristers’ Society Legal Ethics Handbook contains the standard wording that prohibits a lawyer from acting in a conflict of interest.  The commentary to the rule provides as follows:

Sexual Relations with Client
7.5  Rule 7(a) is intended to prohibit, inter alia, sexual exploitation by a lawyer in the course of a professional representation.  Often, based upon the nature of the underlying representation, a client exhibits vulnerability.  The lawyer must not take advantage of that vulnerability.  The solicitor-client relationship frequently creates an imbalance of power in favour of the lawyer where a client exhibits dependence upon the lawyer.  A lawyer owes the utmost duty of good faith to the client.  The relationship between a lawyer and client is a fiduciary relationship of the very highest character and all dealings between a lawyer and client that are beneficial to the lawyer will be closely scrutinized with the utmost strictness.  Where lawyers exercise undue influence over clients to take unfair advantage of clients, discipline is appropriate.  In all matters, a member is advised to keep clients’ interests paramount in the course of the member’s representation. [footnotes omitted]

This is substantially the same approach taken by Ontario and British Columbia.  The remaining Canadian provinces do not deal have a rule that specifically addresses this topic.

For all the allegations of paternalism, the approach taken by law societies of Nova Scotia, Ontario and British Columbia remains permissive, leaving it open to a lawyer facing disciplinary proceedings to argue that the relationship was not exploitive.

The difficulty with this approach is that it necessitates an inquiry by the disciplinary panel into the nature of the relationship and the dynamic that existed between the lawyer and client both in their professional relationship and in the romantic one.  This inquiry detracts from the primary issue - the lawyer’s conduct.  This is intrusive, and will tend to discourage clients from reporting inappropriate conduct by their lawyers.  This leaves the impression of an opaque disciplinary regime that protects its own.  In the end, the profession pays the price with the erosion of the public’s trust.

In addition, as my paper argued back in 1996-1997, the lack of a specific prohibition leads to uneven disciplinary results, as exemplified in the Hunter case.

Historically, the professions have excluded all vocations except the clergy, medicine and the law, yet the medical and clerical professions have not objected to far more prohibitive restrictions than even the approach taken by the American Bar Association.

In the medical profession, all jurisdictions strictly prohibit sexual relationships between doctor and patient.  Indeed, this proscription is seen even in the Hippocratic Oath.

The Ethics Manual of the American College of Physicians is explicit:

Issues of dependency, trust, and transference and inequalities of power lead to increased vulnerability on the part of the patient and require that a physician not engage in a sexual relationship with a patient. It is unethical for a physician to become sexually involved with a current patient even if the patient initiates or consents to the contact.

Even sexual involvement between physicians and former patients raises concern. The impact of the patient-physician relationship may be viewed very differently by physicians and former patients, and either party may underestimate the influence of the past professional relationship. Many former patients continue to feel dependency and transference toward their physicians long after the professional relationship has ended. The intense trust often established between physician and patient may amplify the patient’s vulnerability in a subsequent sexual relationship. A sexual relationship with a former patient is unethical if the physician “uses or exploits the trust, knowledge, emotions or influence derived from the previous professional relationship”. Because it may be difficult for the physician to judge the impact of the previous professional relationship, the physician should consult with a colleague or other professional before becoming sexually involved with a former patient. [footnotes omitted]

While Canadian Medical Association’s Code of Ethics is somewhat vague, all of the provincial Colleges of Physicians and Surgeons contain prohibitions not unlike that seen in the Policies and Guidelines of the College of Physicians and Surgeons of Nova Scotia:

The therapeutic relationship is not to be used to further the physician’s own needs, nor is it ever appropriate for the physician to attempt to meet a patient’s sexual needs. Sexualizing the physician-patient relationship has no therapeutic value. Patient consent is never an acceptable rationalization. Even when the patient has made sexual advances, it is the physician’s responsibility to reassert the appropriate boundaries. Because the physician holds the more powerful position in the relationship, the physician must set and control the limits.

Similar proscriptions are seen in the ethical codes of all medical disciplines.

The clergy are well known for prohibiting sexual contact between clients and pastors, as can be seen in the code of ethics for both the American Association of Pastoral Counselors and the Canadian Association of Pastoral Counselors.

It might be argued that many of the lawyer’s clients are not in as vulnerable a position as a doctor’s patients or a clergyman’s parishioners.  While that may be true in certain circumstances, what must be at all times at the forefront of a lawyer’s mind when conducting the affairs of his or her clients are the client’s best interests.

Proper legal representation requires the exercise of clear and dispassionate judgment.  That judgment necessarily becomes clouded when dealing with close personal relations.  Even the somewhat vaguely worded proscription in the Canadian Medical Association’s Code of Ethics requires that physicians refrain from treating themselves and members of their immediate families, except in emergencies or when no other care is available.

Members of the legal profession suffer from the same human frailties.

The approach taken by the American Bar Association strikes an appropriate balance of the particular nature of legal practice and the human frailties that are at play in all professional relationships.  Members of the legal profession in Canada would be well served by adopting a similar rule.

See also:
National Post - Saturday, January 05, 2008

This particular editor hailed from Belarus - a nation not well known for its tradition of freedom and democracy. 

We don’t, however, need to look that far.

Right here in Canada, lawyer and news magazine publisher Ezra Levant is defending himself against a complaint lodged against him by a radical Calgary imam for doing exactly what his unfortunate Belorussian counterpart did:  he had the temerity to publish the now infamous Danish cartoons in his own publication, the Western Standard.

Ezra, however, is not one to back down.  He has posted video of the Alberta Human Rights Commission’s initial investigatory interview with him on his website.  What we see is a government inquiry into why he felt he should publish the cartoons, and what he was thinking when he did it.

This is Orwellian.  Does it really matter why he did it?  What he was thinking?

Is Ezra not entitled, in a secular society, to provoke a debate about whether violence and destruction is a reasonable response to the publication of some cartoons offensive to no one but a few religious fundamentalists?  Are we really so afraid of offending them that we are prepared to trade away the basic freedoms upon which our society is based?

That Ezra is not the only writer facing this kind of inquisition in Canada should give us pause.  Mark Steyn is facing a similar inquistion after the Canadian Islamic Conference complained to other human rights commissions over publication of an excerpt from his book that, they feel, insults Islam.

This, however, is a blog about the ethics of lawyering, and in this regard, Ezra deserves singular praise.  Freedom of speech, the right to a hearing before an impartial tribunal, procedural due process - these are all the fundamental values of a free and democratic society.  When the law purports to limit these freedoms in a way that stifles social and political debate, then surely it is the duty of a lawyer to speak out.

Where most lawyers are prepared to engage in this debate only in an abstract way - perhaps at most, only in the course of representing a client - Ezra has placed himself at the centre of the maelstrom.

His vocation, since shortly after graduating from law school, has been as a publisher.  Perhaps that is the legal profession’s loss.

Why indeed?

I have argued that even though administrative tribunals in Canada, such as the Canadian Nuclear Safety Commission, are entitled only to as much institutional independence as their enabling legislation grants them, given the language in the Nuclear Safety and Control Act, S.C. 1997, c. 9, including the fact that the legislation refers to that tribunal as a “court of record”, the CNSC is entitled to a great deal of independence from interference by government.

Where a tribunal is given that kind of independence, the members of the tribunal have a corresponding duty to defend that independence.

Ms. Keen’s decision not to testify before the parliamentary committee set up to inquire into the events giving rise to her dismissal is unfortunate.  It is, in my view, an abdication of her responsibility to defend the independence and integrity of the tribunal on which she continues to sit.  In addition, it deprives Canadians of the opportunity to hear and be educated on the functioning of administrative tribunals which occupy a growing part of the justice system in Canada.  Finally, it sweeps under the rug some questionable behaviour on the part of this government.

I agree with the writer in this editorial that if need be, she should be summoned to appear.  I do, however, hope that it does not come to that.  I hope that Ms. Keen will continue to do what she had done so well up to this point, and defend the independence of her tribunal.