As worldwide governmental agencies pore over the financial and corporate information leaked from the Panamanian law firm, Mossack Fonseca, conversations have turned from the tax-dodges of the rich and famous to the ethics of lawyer participation in unlawful behaviour of all kinds. Previously, in the popular TV series, Breaking Bad, attorney Saul Goodman provided both comic relief and lessons in abuse of professional privilege by using his storefront office to launder drug money and counsel assassinations. Legal ethics has become the surprisingly sexy topic of dinner conversation.
As with any field unexpectedly caught in the public spotlight, the legal profession has proven unready. Its rules appear hard to understand, at best, and at worst protectionist, placing lawyers at the crime scene. Recent commentary on legal ethics arising from the leak of the Panama Papers cover a broad range of issues. The ICIJ site which received the leaked data depicts a lawyer with his back to the public, hard at work setting up shell companies and hiding money.
Peter Henning, in the New York Times, talked about lawyers straddling the line between actively blind facilitation of unlawful financial schemes and knowing participation. At the other end of the range, prosecutors are bound by local bar codes of conduct not to delve into protected lawyer-client communications. In Canada, the prosecutorial dilemma of information collected from a law firm harkens back to the Supreme Court decision in Celanese Canada Inc. v. Murray Demolition Corp., a civil procedure case dealing with a commercial dispute. The case stands as leading authority for the proposition that counsel could be prevented from acting if the lawyer even inadvertently reviews a privileged document. Such a miscue in a criminal or tax court context could jeopardize a prosecution of tax cheats. Somehow the principles expressed in Celanese appear innocent and naïve, like asking the authorities to observe the traffic rules of a harbourmaster while raiding a pirate ship.
Legal ethicists tend to get hung up on the definitions of dishonest or dishonourable conduct. For example, s. 5.1-2 (b) of the Law Society of Ontario’s Rules Of Professional Conduct states that lawyers shall not “knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable.” Is failing to open a negotiation with one’s final position, with the hope of settling a civil suit or criminal plea bargain, dishonest? If so, then the best practitioners would be disbarred, leaving only the incompetent and mediocre to serve the public. Is it dishonourable for a lawyer to counsel a client to leave a husband or wife in order to lay the groundwork for divorce proceedings? After all, most marriage vows still contain the words, ‘till death do us part.’ These examples prove either the admonition against reductionism or Wittgenstein’s theory that all legal questions are doomed to be constrained by lexical limitations. Somehow, we know we must not rush to print the fine terms when we still do not know the purpose of the text.
Stepping back from the legal profession’s subjective rules of conduct, and the language used to articulate them, we should find more essential and imperative the role of the lawyer as intermediary between normative rules (laws, customs, international tax regulation …) and the violators of such rules. Does the legal profession have the moral authority to sanction its members’ conduct, or invade the privilege enjoyed by their clients, on the basis of facilitation of unlawful or dishonourable conduct?
The necessity of this question arises from the licence given to lawyers to help confessed criminals avoid penal sanction by putting the state to its prosecutorial burden (Ont. Law Society Rules, s. 5.1-1 Comm. 10), provided the confessional is the lawyer’s office or other meeting room. Given that most contested criminal proceedings proceed without the accused testifying in his or her defence, the fetter that ties the defence lawyer’s conduct of a defence is usually not that burdensome. Provided the criminal does not instruct the lawyer into a positive act of deception, eg. a false positive defence such as an alibi, the rules allow the lawyer to continue on the record while keeping the secret confession. The court’s pursuit of the just result and the desire of the guilty client to avoid justice are conflicting mandates, where the lawyer is an officer of the court and receives instructions to seek acquittal from a confessed offender. As long as the legal profession tries to deny or finesse this conflict, the public will consider our position unworthy of its trust.
The rule permitting the defence lawyer to impede a prosecutor from meeting the state’s burden of proof means the lawyer could help the client be acquitted of a charge of which the client has confessed to being guilty. In contrast, the rules require a lawyer, either outside or in-house, to advise a client about compliance with law and then, if the advice is not followed, resign from acting or from being employed. There is no option to give the advice and stay on, if the client proceeds with the questionable activity despite the advice.
The framers of these rules do not adequately explain why the rules protect the lawyer’s brief after the client is caught in the dragnet but forbid the brief of the lawyer whose client comes for advice and representation to avoid getting caught. Usually one must resort to an extraneous non-ethical factor (i.e., a cop-out). In the pre-Charter days, the common law formulation known as the Wigmore rules protected the lawyer’s privilege and client’s right to representation by the lawyer on the basis of public policy. The policy of a fair trial was considered valuable enough to justify the preservation of the lawyer-client relationship, even if it meant the lawyer could help the confessed guilty client evade charges. Similarly, the sanctity of marriage was considered to be a social value that trumped truth and justice, such that a murderer could not be convicted if the proof of the elements of the offence could only be provided by the accused’s legal husband or wife, and if that spouse refused to testify. In contrast, a doctor’s confidentiality could, in most cases, be breached by the judicial process because of the self-interest of patients to give disclosure to a doctor in order to preserve life or health despite the possibility of the doctor being compelled to testify against the accused.
These days, Canadian discussion about the sanctity of privilege in the post-charge stage focuses on right to counsel because s. 10 of the Charter guarantees it only on arrest or detention. The right to counsel in the planning of a crime is not so protected. But this rationale has more to do with preventing Canada from becoming a police state than it has to do with the actual ethical implications of someone learned in the law fulfilling a “legal need” of a person who wants to preserve his or her liberty while (a) planning a tax offence or (b) having been caught for a tax offence. The right to counsel here arises from the need to protect against abuse or prosecutorial error by the Crown. We must acknowledge that by giving heed to a factor outside the scope of the ethical question whether a lawyer should offer any help to the accused who has confessed only to the lawyer, we condone help that would reasonably lead to acquittal. Lawyers who navigate this rule well are not disciplined but, rather, receive peer acclaim.
Stepping back from the text of the rules and considering their principled bases, we can start to see that the double standard relies on factors that are extraneous to concepts of lawyer honesty or honour. Otherwise, there is no functional or purposive difference between Breaking Bad’s Saul Goodman, scorned for using privilege to allow crimes to be unprosecuted, and the well-respected lawyer who uses skilful cross-examination of Crown witnesses to sow doubt about the evidence against his or her guilty client to secure an acquittal.
Once the extraneous distinctions between the pre-charge and post-charge scenarios are put to one side, we are introduced to a condition of moral equivalence – that third rail of any ethical discussion, similar to the posters put up by vegetarians in Toronto’s subways and asking riders why they love dogs and eat pigs. Once we admit we don’t really have an answer to the question, we have made the first step toward coming up with one.
If the next step to the answer is to amend the rule and require the lawyer to withdraw from representation of a client who has privately confessed but wishes to put the state to the burden of proof, that would place the pre-charge and post-charge scenarios on an equal principled footing. What follow, after harmonizing the ethical rule, are necessary changes to criminal procedure to preserve the accused’s right to counsel and a fair trial. Until the bar and the judiciary either confronts this challenge or disproves the need to require lawyer withdrawal in both scenarios, this aspect of law and ethics will remain incongruent and the public will continue to see lawyers as helping the guilty evade penal sanctions. Only after we develop consistent rules based on core ethical considerations can the legal profession possess the moral authority to put an end both to the facilitation of offences and to the intellectually dishonest defence of the guilty.