Lawyers have an integral role in the maintenance of the reputation of the administration of justice. However, in situations where the administration of justice is already in disrepute, the role that lawyers can play is not entirely clear. Clients may ask lawyers to provide advice regarding actions that violate the letter of the law in furtherance of making a change to law or policy. In these cases, lawyers’ professional ethics are challenged.
The Law Society of Upper Canada (LSUC) Rules of Professional Conduct stipulate that a lawyer “shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct or instruct a client or any other person on how to violate the law and avoid punishment.”
Interestingly, in the commentary to the rules provided by LSUC there is an exception for bona fide test cases “so long as no injury to the person or violence is involved, a lawyer may properly advise and represent a client who, in good faith and on reasonable grounds, desires to challenge or test a law and the test can most effectively be made by means of a technical breach giving rise to a test case. In all situations, the lawyer should ensure that the client appreciates the consequences of bringing a test case.”
However, this is a limited exception. This only allows a lawyer to advise a client looking to challenge a particular law by violating it based on a technical breach. The exception works well in cases where there is justiciable law that can be challenged through a judicial process.
The exception does not account for situations where a client is looking to change policy or expose government action. Ostensibly Edward Snowden was not looking to challenge the law of treason or espionage, but to expose government policy, which required the violation of law. While Mr. Snowden's predicament is a rare and extreme case, lawyers in Canada may find themselves retained by clients who look for advice on advocacy through civil disobedience.
Civil disobedience forms a unique challenge for legal ethics. Broadly, civil disobedience involves the actions of normally law-abiding citizens seeking to change public policy by illegal means or interferance with the lawful interests of other citizens. This includes various activities ranging from public protest to vandalism and assault.
A plain reading of the Rules of Professional Conduct would prohibit a lawyer from directly advising a client to perform an act of civil disobedience. A lawyer may be able to advise a client on the consequences of violating the law, but not advise her or him to actually violate it in furtherance of a cause.
Moreover, the Courts have indicated their discomfort with civil disobedience. Justice Wagner of the Supreme Court of Canada, writing in dissent in Morasse v. Nadeau‑Dubois in the context of civil disobedience as a form of free expression, stated:
[E]nsuring compliance with orders made by the courts, and thereby maintaining the authority and credibility of the courts, has the effect of reinforcing the rule of law and, by extension, our fundamental freedoms, including freedom of expression:
Over the centuries our laws have been built up to give the greatest protection to all classes of our society and only through the medium of the freedom and independence of the courts are these privileges protected. Once our laws are flouted and orders of our courts treated with contempt the whole fabric of our freedom is destroyed. We can then only revert to conditions of the dark ages when the only law recognized was that of might. One law broken and the breach thereof ignored is but an invitation to ignore further laws and this, if continued, can only result in the breakdown of the freedom under the law which we so greatly prize. [Citation omitted.]
This formulation of the rule of law is a thin conception based on ruling by law. It ignores the possibility that the law could be a mechanism to undermine fundamental freedoms. Under this thin understanding the role of the lawyer would always promote compliance of the law. This can lead to disastrous consequences.
Consider the following quote from Arthur Chaskalson, former Chief Justice of South Africa:
[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”.
Justice Chasklason is advocating a substantive notion of the rule of law, stronger than that of Justice Wagner. A substantive conception of the rule of law would contemplate the permissibility of civil disobedience. In fact, some jurisdictions in Canada, such as British Columbia, allow the Crown some leniency in determining whether to prosecute acts of civil disobedience or contempt of court orders.
Furthermore, one could argue that employing a strong and substantive understanding of the rule of law that protects fundamental freedoms would enable a lawyer to advise the violation of law in furtherance of freedom. Perhaps a discussion on advising civil disobedience is one the legal community should have.