On the Sidelines, No Place for Lawyers

As we watch the Ford government’s attack on the impartiality and competence of Ontario’s adjudicative tribunals, it is time to refresh our understanding of the legal profession’s obligation to defend the justice system.

The obligation of lawyers to defend the the justice system in both its judicial and administrative aspects is both implicit and explicit.   The implicit obligation arises because of the privileged, exclusive, and central role the law accords to lawyers in the administration of the justice system.  The explicit obligation is defined in the Law Society of Ontario’s Rules of Professional Conduct (and in the Federation of Law Societies of Canada’s Model Code of Professional Conduct).

Lest anyone should think that this post is mistaking a lawyer’s obligation to defend adjudicative tribunals in our administrative justice system  for those owed only to the courts in our judicial justice system, note that in its treatment of these issues, the Rules of Professional Conduct speak not of “courts” but only of “tribunals”.  And, in the Rule’s definition section [section 1.1], “tribunal” is defined as including “courts, boards, arbitrators, mediators, administrative agencies, and bodies that resolve disputes, regardless of their function or the informality of their procedures”.

A lawyer’s professional and ethical obligations to defend our adjudicative tribunals, as those obligations are explicitly defined in the Rules of Professional Conduct, may be seen to fall into two separate categories that can be usefully labelled the “ONE-OFF” obligations and the “REFORM obligation.  The former encompasses the obligations particular lawyers owe to particular tribunals and their particular members on particular occasions; the latter, the obligation that all lawyers have, at all times, to defend the system of justice including the system of administrative justice.

This post will address only the professional and ethical obligation that may be seen to fall into the category of “reform” obligations.

The obligation to defend – to champion – our tribunal justice system is addressed in a number of places in the Rules of Professional Conduct.

The backdrop obligation against which the reform obligation falls to be assessed generally is to be found in the Chapter 2 of the Rules devoted to Integrity (Section 2.1). Section 2.1-1 reads as follows (emphasis added).

 “A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.”

And the “Commentary” for that Section includes this:

“[4.1] A lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice…”

The explicit obligations respecting the administration of justice appear in Chapter 5, entitled “Relationship to The Administration of Justice” and particularly in Section 5.6 entitled “The Lawyer And The Administration Of Justice – Encouraging Respect for the Administration of Justice”, and in that Chapter, section 5.6-1 provides that (emphasis added):

A lawyer shall encourage public respect for and try to improve the administration of justice”.

Most significantly, the Commentary under section 5.6-1 includes the following (emphasis added):

[2] The admission to and continuance in the practice of law implies on the part of a lawyer a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system. However, judicial institutions will not function effectively unless they command the respect of the public, and because of changes in human affairs and imperfections in human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it.

As they watch the Ford government continue, in plain sight, to undermine the impartiality – and competence – of Ontario’s adjudicative tribunals, lawyers and their institutions have to know that their professional and ethical responsibilities are demanding a response.

What is that response to be?

And, if not now, when?



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