Respecting and Maintaining Professionalism as a Lawyer
14 March, 2020
True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures. There is little of all that we do which the eye can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men and women’s burdens and by our efforts we make possible a peaceful life.
– John Davis, former United States Solicitor General
When a client is unhappy with a decision of either a court or a tribunal, they may try to blame their lawyer for the unfavourable result. Blaming your lawyer for unfavourable decisions is neither appropriate, reasonable or productive. To be clear, it is only the failure to achieve the expected result that is at the heart of the complaint. Any other interpretation is simply a disingenuous attempt to recast events to serve a client’s own purpose of expressing dissatisfaction with the result. A result over which we have no control.
This is what I refer to as results-oriented reasoning. While a very understandable and human thought process, it is, unfortunately, faulty reasoning. The role of the lawyer is that of an advocate for the client. As my client’s advocate, I cannot guarantee a certain result. What I can do, is use my skill, expertise and experience to influence the best possible outcome in the circumstances. This means taking on my client’s burden and attempting to smooth out their difficulties. When a client, attempts to bully me into advocating a certain way, usually against my better judgement and conscience, that hinders my efforts to advocate for them. Once I am placed in a position where I have to act in my defence, I am no longer free to advocate dispassionately for my client’s interests above my own. By bullying me into a certain course of action, my client is actually sabotaging their own case.
So what is bullying? Bullying can take many forms. From the familiar aggressive menacing tones to outright threats or even extortion, such as:
“Give me my money back because I didn’t get my visa, or I will report you to the law society”
“If you don’t tell the other side lawyer what I asked you to say, I will fire you”
“If we don’t win the application, I won’t pay you”
“If you don’t do what I want you to, I will fire you and give you a bad review”
“If we don’t win, you better do the appeal for free or else I will tell everyone what a terrible lawyer you are”
“Tell me how to lie, or else I will make sure to put you out of business”
“If I don’t win, you’re going to be in trouble”
“If you don’t become much more verbally aggressive with my opponent, then you’re fired”
As a matter of ethical practice, I refuse to work with any client who attempts to bully me into advocating a certain way. A healthy exchange of views is encouraged and desirable. Moreover, the case belongs to the client, not to me. Ultimately, I am bound by my client’s instructions to me, unless of course, they are unreasonable or designed for an improper purpose. I will not allow bullying of anyone whether it be me, anyone in my office or an opponent. Bullying only foments discourse, builds resentment and rarely achieves a desirable result. Aside from the ethical and personal considerations, the Law Society of Ontario rules of professional conduct prohibit me from engaging in such behaviour.
A lawyer must act professionally at all times. I would restate that phrase as a lawyer must conduct themselves with professionalism and respect of others at all times. This is most important to remember during the times when we are under attack by our own clients. This is the moment when it can be difficult to hold our emotions in check and remember that our client is reacting adversely to the situation that brought them into your office in the first place.
So why do client’s bully their lawyer? For clients who are charged with criminal offences, the stress they are facing is often a persistent, crushing load on their minds. To be charged with a crime that could potentially ruin your life is devastating. I admire the strength and courage of those people, who despite this heavy burden, are able to continue functioning as if life were normal. I always see a great sense of relief on my client once the criminal process is completed.
Similarly, clients going through family law proceedings are usually experiencing a very high level of emotional distress. Their intimate life has crumbled and the sanctuary of their home has been disrupted. The death of a relationship, like any death, requires time and the ritual of finality to heal. In the meantime, their stress is real and palpable.
The appeal process
For criminal and family law clients, the remedy for an unfavourable decision is an appeal to a higher level of court. The appeal process is governed by statute, such as the Criminal Code or Divorce Act, and the rules of Court. The appeal court will review the decision for correctness on the merits and either allow or dismiss the appeal.
With administrative tribunals such as an immigration visa officer, the situation is very different. This is because the application is a request for a status, such as a visa, to which the client is not entitled to as of right. The application process is one where the client must demonstrate that they have earned the privilege of obtaining the requested status. This is a process which is deceptively simple but requires a great deal of background knowledge and experience to understand how to complete the application forms correctly. Clients seeking an favourable administrative decision are often frustrated at the complexity, the length of time it takes for a decision to be made, the lack of access to a decision maker, and the uncertainty surrounding the entire process.
The remedy for an unfavourable administrative decision is also very different. On December 19, 2019, The Supreme Court of Canada reiterated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, that decisions of Government officials that are arbitrary, capricious and unreasonable should not be allowed to stand. The court stated that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. This means that sometimes an unfair decision may still be considered reasonable by the court. The Vavilov decision, however, has changed how those decisions are to be delivered, expressed and reviewed. As a matter of practice, this means that judicial review may be a viable option for an unfavourable decision.
Whatever the outcome that are you seeking, working with your lawyer is a far more successful strategy than attempting to bully them into doing their job your way. Alienating the one person whose role it is to assist and advocate for you, will only ensure that you never get to achieve your desired result.
Hans John Kalina is a partner at Kalina & Tejpal and can be reached at (416) 900-6999 or firstname.lastname@example.org