Lawyer independence and the rule of law

President Craig Ferris and Jon Festinger discuss what it means for lawyers to be independent, why lawyers must represent their clients’ interests, and what could happen if lawyers are threatened for just doing their jobs. 

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Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode three, Lawyer Independence. We'll be talking about what that means and why it's necessary in a free and democratic society. This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host.

Jon Festinger

I'm your host Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee and have been for quite a few years. I'm also a lawyer and I teach at UBC's Allard School of Law and the TRU Faculty of Law. I'm pleased to again welcome President Craig Ferris of the Law Society back for this episode.

Craig joined us for our pilot episode in September and introduced listeners to the concept of the rule of law and why the Law Society is producing this podcast. Craig is no stranger to talking about the independence of the bar. He was on the team that represented the Canadian Bar Association in the Supreme Court of Canada. That was in the case AG Canada vs. Federation of Law Societies of Canada where the court decided that requiring lawyers to provide client information to FINTRAC would violate solicitor client privilege.

In today's episode, we are talking to Craig about what it means for lawyers to be independent, why lawyers must represent their client's interests particularly and even when those interests are perceived as wrong or wrong-headed or are simply incredibly unpopular, and most important what could happen if lawyers are threatened for just following their duties and doing their jobs. Craig, the issue of lawyer independence came up in the recent Cullen Commission Inquiry into Money Laundering in BC. Can you tell us a little bit about that?

Craig Ferris

Sure Jon, thanks for this. The reason it came up is it comes up because it's a fundamental question which is why are lawyers regulated independently and not by government and it's a question for the Cullen Commission to look at. But why it's important is because the right of lawyers to be independent is a client's right; it's not a right of lawyers. And why is that important? It's important because a client needs to know that their lawyer represents them, not anybody else, and they're not beholden to anyone else, they're not beholden to government.

And so when you look at it in the regulatory sphere, which the Cullen Commission is looking at, you look at well, why do you have effective regulation. You have effective regulation because lawyers can investigate lawyers and can look at what is secret information between the lawyer and the client so that information would not be available to a government. But the Law Society can look at that and can more effectively regulate the lawyer because they know what went on between the lawyer and the client but that information is kept away from the government, it's kept away from anyone else, it is kept secret with the Law Society.

Jon Festinger

So what you're saying is that you know even though there tends to be a lot of focus in the media on the independence of lawyers, making it sound like it is a lawyer's right and a lawyer's privilege, it's in fact all about the client, it's all about the citizens' independence from the state, using the lawyer for that purpose then the lawyer being a completely independent agent. Have I got that right?

Craig Ferris

That's right Jon and so when you look at what's called solicitor client privilege, again people sort of say well you know lawyers have this right to speak with their clients in a secret way, again that's not the lawyer's right, that's the client's right.

When you look at what's happening in the Cullen Commission and you look at the independence of lawyers, it's lawyers defending the client's right to have their information secret from the government and it's the lawyers defending the client's right to have an independent lawyer, someone who's not beholden to anyone but simply acting in their best interests, that that's the right the lawyers are defending. So it all comes down to a citizen's rights to have independent representation when they're under investigation or prosecuted by the state.

Jon Festinger

The other piece that I want to tease out a bit more is how self-regulation of lawyers fits into that because if it's a client's right not a lawyer's right, what's the direct justification for self-regulation as opposed to state regulation? Is it simply that the state would then get in behind or in between the lawyer-client relationship or is it more than that?

Craig Ferris

Well I think it's more than that and so self-regulation means that the standards are again not set by the government, that the standards are set by the people who actually know how to practice law and know how to represent people. Then the investigation is done by those people who know the standards but it's based on complaints made by the client so if a client has a problem with a lawyer, the client can come directly to the Law Society and the Law Society will do that investigation on behalf of the client to ensure those standards are met. But then you get to the third point which you raised which is the Law Society, because it's a legal body independent of government, can get at the complete lawyer's file. The lawyer can't say well there's a secret in here that my client told me that you shouldn’t be able to look at. The lawyer has to open up the whole file and the Law Society then can evaluate those facts and come to a conclusion on behalf of the client. So the self-regulation really fits hand in glove with the client's rights.

Jon Festinger

Yeah, so from a client's perspective, if government were directly regulating lawyers as opposed to an independent Law Society, government would actually need access to the full file in order to regulate lawyers effectively which would put the client's information directly in the government's hands which is the risk factor in a free and democratic society. So let's turn from that to another issue that I think is always fascinating and always creates discussion and reaction and often, interestingly enough, from government officials and I can think of an example last year in the UK which you and I have talked about in the past. And that is what happens when lawyers represent very unpopular clients, clients who perhaps have not acted in the state interest. Should lawyers represent people who have committed heinous crimes because lawyers become very unpopular when they do, very unpopular in the media, very unpopular with the public, and very, very unpopular with government. So can you talk a little bit about lawyers' independence and how that ties into representing anybody and everybody who might need representation no matter who they are.

Craig Ferris

Well I'll come back to a real life example that's sort of unfolding before us right now in a moment but simply put, we have a Charter of Rights that says that everybody has basic rights and so everybody should have those rights defended regardless of who you are or what you've done, the lawyers, and lawyers have the right and the obligation to do that. And you know to identify a lawyer with what the client has done is just simply wrong. Lawyers have a duty, an ethical duty to represent everyone zealously in their best interests and to make the best case they can for them. And if the state can't overcome that case, well that's the state's problem. But the lawyer will move from that case to another case and they may be representing somebody you think is great in that case and then to another case. And the lawyer has no personal interest in the matter other than doing their ethical job. And so it's just simply wrong to identify the lawyer with what the client has done and hopefully people understand that.

I'll give you a real life example of that which may not be all that popular but right now, the government is instituting no fault insurance for motor vehicle claims. And whether you agree with that or not is really beside the point. The problem, and we've written to the Attorney General on this, is the justification for no fault is that lawyers are making, you know doing too much on behalf of their clients, that this is a lawyer problem. And you know we've written the Attorney General and said to them look, lawyers are doing their best on behalf of clients and they're representing these clients and they're getting them the best results they can. That's their job and they shouldn't be criticized for that and that shouldn't be used as a policy justification for no fault. You know no fault may be good, may be bad, I'm agnostic on it right now, but what I'm not agnostic on is that it's the lawyers' fault. Lawyers are doing their best within a system and you just simply shouldn't tar them for doing that.

Jon Festinger

Or I suppose tar their clients who are getting more presumably because they are represented and that makes it unpopular because there is sort of a financial cost. I mean I don’t think it's a secret that ICBC is not the healthiest Crown corporation and that does cost taxpayers money but is that the lawyer's problem and more importantly, more significantly, is that the client's problem? Put yourself in the shoes of the client who we all can be.

Let me sort of ask you a more general question. When you think about lawyers being independent of the state, do you have an image that comes to mind, you know either from a movie or from a real life event or something that you look at as kind of the archetype of the lawyer acting independently in the best interests of the client?

Craig Ferris

Well there's a relatively recent, and it's almost incredible situation that played out in Australia where recently it came forward that the defense counsel for people, again people who we might not want to have dinner with, but that defense counsel was actually a police agent and was actually recording the clients and giving the information to the government, privileged information where the person thought that they were dealing with their own lawyer and the police were using that to prosecute people, to investigate, to locate crimes that were happening. And it caused a scandal in Australia that somebody in that position and that the police in that position would think that this was the correct thing to do. So you know that's the type of abuse that can happen if we start to allow lawyers to be coerced by government or to become beholden to government in these types of situations is that you just have a completely unfair process and people don't have the rights to defend themselves against government. 

Jon Festinger

And you know so compromises the administration of justice at a time kind of in our evolution as democratic societies at this particularly dangerous time where we can ill afford that kind of compromise and that kind of taint. You know you hear a lot from certain quarters about the deep state. There's a perfect example of what deep state actually looks like and how dangerous it is and it's dangerous not to lawyers but to the individual liberties of the citizens. And I guess that's really the point that you keep trying to make and that ultimately this is about citizens' rights, not lawyers' rights.

Let's just deal with one last topic. When we talk about lawyers and think about lawyers, lawyers are people too, not to kind of overuse that phrase. We bring our viewpoints, our perspective, our lenses, our personal biases to every case that we deal with because we're human. And we do that while we're providing legal services even though we're trying to be as objective as possible. From a Law Society perspective, from the perspective of a very accomplished litigator, Craig, how do you address those biases? How do we address those biases as lawyers, how should clients understand their lawyers and their lawyer's own personal viewpoints on things?

Craig Ferris

Right. So you know a lawyer has an obligation to act in the best interests of clients, in a court situation to be a zealous advocate for the client and so if a lawyer's not doing that, the lawyer's not fulfilling their duty. And so at the Law Society, we have a Code of Ethics which frankly is almost universal across the country, almost identical, and if a lawyer's not doing their job because of their personal biases or their viewpoints well that's something that's wrong and the lawyer should be disciplined for that. If the lawyer doesn't feel that they can be objective and dispassionate with respect to a case, then they shouldn't have the case and they certainly shouldn't compromise the client's interests in their representation because of your own personal biases. And so you need to be objective with yourself and if you can't do the job don't do it, refer them to somebody who can. But we at the Law Society make sure, through our investigations, that lawyers are doing that and they're doing it correctly. 

Jon Festinger

It's such a delicate topic because part of what makes certain lawyers effective is their view of the world but when we're acting for a client, and I guess this is the bright red line that runs through this entire conversation today, the job of a lawyer is to put the client first, is the interests of the client. And that's why lawyers' privilege is really clients' privilege. That's why lawyers' independence is really clients' independence. So with that, let's look at the Rule of Law in the news, kind of what's going on in the world right now and Craig, do you have a couple of real life examples, as I believe you do, of threats to lawyer independence around the world over and above the ones that you've already mentioned?

Craig Ferris

Yeah, so you can sit here in Canada and think that we're all, the world's pretty good and that lawyers are, you know who would ever attack lawyers. You know it's not really something that we think about a lot in Canada because of the nice society that we have. But if you get on Google and you insert you know arrest of lawyers, you'll come up with thousands of hits. It's pervasive, it's throughout the world and you know I could, we could talk for two hours about it if you wanted to but I'll just give you a couple of examples. Turkey, for the last couple of years, has been incredible. There's been thousands of lawyers arrested and detained in Turkey for doing nothing other than their job, they just seem to be representing people that the government doesn't think are good people but that's a lawyer's job. And so in Turkey, lawyers representing what's called the Kurdistan Workers Party, who the government doesn't like their opposition to their policies, are routinely rounded up and I think there's been over 2000 of those lawyers arrested. And the government has taken steps to take over bar associations so they can regulate who actually is, can call themselves a lawyer again to try to restrict representation of people that they don't like. And that's just fundamentally wrong and there's lots of organizations throughout the world who are trying to take steps to correct that wrong. Another example I can give you, this one from Zimbabwe, again a human rights lawyer in Zimbabwe, a lady named Beatrice Mtetwa, she's been persecuted for doing her job, for representing people that the government believes are opposed to the government and so they just lump the lawyer, again someone doing their job representing people who have persecuted by the government, they arrest her and put her in jail. And so that just has to be wrong and you know we, again, I could give you many, many more examples but those are sort of examples in the news right now of people who are being you know jailed for being lawyers.

Jon Festinger

This is the 30th anniversary of the UN Basic Principles on the Role of Lawyers and there's been a renewal of those principles which is kind of maybe the fitting capstone for this episode of Rule of Law matters. Can you tell us a little bit about that?

Craig Ferris

Yeah, so one of the great things about being President of the Law Society is you get invited to you know consider things, and one of the things we were asked to do was to sign on to a renewal of the UN Basic Principles on the Role of Lawyers. This was originally created by the United Nations Human Rights Council in 1990 and so 2020, apart from being a very odd year in lots of ways, is also the 30th anniversary of those basic principles. And so it was brought forth in Geneva this year, back to the UN Human Rights Council to renew those basic principles which they did. There were 50 odd bar associations and Law Societies from across the world who supported it and sent it on to their own missions to the UN to make sure that those missions supported this renewal. And the Law Society of BC was one of the organizations that did that.

And so you know I won't read them to you but if you go through and read the basic principles of lawyers, it's you know it's client right after client right. It starts with that everyone has the right to access representation when they're subject to criminal prosecution by the state. And all of the things that the Rule of Law podcast I hope we'll talk about, in particular the independence of lawyers, are fundamental and embedded in those basic principles on the role of lawyers. So it's a great thing. It hopefully can help people who are trying to defend those lawyers like we just talked about in Turkey and Zimbabwe and other places, can help them through a UN organization and principles, get those people to stop being prosecuted and hopefully get them released and allow them to do their jobs.

Jon Festinger

I suppose from my perspective, when I look at world events, which you've talked about, and I look at the UN Basic Principles, what's really striking is that these issues are seen as fundamental issues worldwide directly tied to free and democratic societies, directly tied to the fair administration of justice. And yes, you know as you raised you know every jurisdiction including BC has its own fight around the independence of lawyers but really we've got to get some perspective that this is a fundamental worldwide issue and when we look at the world, and if we look at it clearly, we can see the danger to lawyers and therefore clients and therefore the citizens right here at home and that's what we need to be bringing home, not just the particular issue in the particular moment. Craig, before I sum up, just any last words from you and thank you very much for joining us again.

Craig Ferris

Well, you didn't ask me for a sports analogy and I'll just leave you with this. Can you imagine the outrage if people found out that Travis Green was actually working for the Las Vegas Golden Knights in the middle of the playoffs and that's sort of what we're talking about here, that the coach should be working for the Canucks, shouldn't be working for the opposing team and that’s what the independence of lawyers is.

Jon Festinger

Well you might remember earlier this hockey season, because it's been such a strange year we're going pre-COVID, the backup goalie that was called up during a, for the Carolina Hurricanes, they had to bring in a special goalie because their other goalies had gotten injured during a game with the Toronto Maple Leafs. That goalie who was I think in his forties actually happened to work as a Zamboni driver for the Toronto Maple Leafs and I remember my screen lighting up with people saying okay, he's gonna now throw the game and the Leafs are gonna win. And what happened was rather miraculous. This goalie beat the Leafs, which as a Canucks fan really did my heart good, and it was a wonderful moment but what was really clear was that if he had not beaten the Leafs, the whole administration of NHL fairness was very much at risk. So thank God he beat the Leafs and rose to the occasion and was rightly celebrated for it. But to take your sports analogy to the next level, he had no choice but to beat the Leafs because if he had not beaten the Leafs then if he had let in shots, which he was likely to do, we're talking about basically a fourth string goaltender, then everything the NHL stood for in terms of fairness was being undermined. And that's just kind of a small example by metaphor of what can happen in a very much more important playing field which has to do with the liberty of individuals represented by lawyers.

So thanks for that Craig, and thank you for joining us today. I'm gonna try and sum up in a few sentences.

If lawyers were beholden to anyone other than their clients, our justice system simply wouldn't work. You would never know if your lawyer was representing your best interests which is crucial. It's important that a lawyer's job is to pursue every legal means possible to help our clients no matter how unpopular that cause may be. In a free and fair society, everyone deserves the opportunity to have a lawyer. It's a right that can't just apply to some people, the privileged, and not to others. So it's a right that you have, a right to a lawyer, a right that everyone must have.

With that, I'd like to thank everybody for listening today. We look forward to more discussion on the rule of law in a free and democratic society. If you want to find more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. Vinnie Yuen was our very capable producer today. This is Jon Festinger signing off for now