A False Start in Constitutionalizing Lawyer Loyalty in Canada (Attorney General) v. Federation of Law Societies of Canada
Supreme Court Law Review, Forthcoming
19 Pages Posted: 22 Jul 2016 Last revised: 16 Aug 2016
Date Written: July 21, 2016
In Canada (Attorney General) v. Federation of Law Societies of Canada, a majority of the Supreme Court of Canada recognized a new principle of fundamental justice pursuant to section 7 of the Canadian Charter of Rights and Freedoms: a lawyer’s duty of commitment to a client’s cause. This article critiques the majority’s choice to recognize this new principle of fundamental justice after first reviewing the Court’s reasons and their background.
In brief, it is argued that elevating a duty of client commitment to a principle of fundamental justice results in a muddled analytical framework under section 7 given that the constitutionality of a law is attempted to be evaluated by a principle that itself recognizes legality as a legitimate boundary. Although the idea that a lawyer ought to be a zealous (or resolute) advocate is well-recognized, there is agreement that a lawyer's commitment to a client must be exercised within the limits of the law. Stated otherwise, there is no foothold in the concept of zealous advocacy itself from which to adjudge other laws, as the concept takes such laws to trump its requirements and permissions, merely due to their existence.
I argue that a better route to capturing what is at stake when the government intrudes on the lawyer-client relationship is to use independence of the bar as the applicable principle of fundamental justice and to understand independence of the bar to only justify those government intrusions on the lawyer-client relationship that are directed to protecting or promoting the integrity of the legal system and the lawyer’s role in providing clients appropriate access to the legal system. To the extent that the government wishes to regulate lawyers in order to pursue other policy ends (like, for example, preventing and detecting money laundering and terrorist financing) and the regulation engages the lawyer’s life, liberty or security, the regulation should be viewed as a violation of section 7 and the legitimacy of the government’s pursuit of these other ends be considered under section 1.
Keywords: Legal Ethics, Zealous Advocacy, Section 7, Principle of Fundamental Justice, Money Laundering, Independence of the Bar
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