LSESU AMNESTY INTERNATIONAL

Radmila Yarovaya

The legal framework provides one with a clear framework as to how to change unjust laws, represent one’s interests and push for societal change through individual cases. However, most can never take advantage of this as when they come face to face with the legal system, the ordinary citizen realizes that the law, which they have customarily obeyed their entire lives, is obscure and fundamentally unknowable. This is because law is fundamentally about power. Whoever controls law, the knowledge behind it, and the power to interpret and wield it, controls all of the power in our society. A further issue arises when one realizes that the legal profession is not as diverse, transparent or dispassionate as many think it is or would like it to be. In order to combat this and bring into being a more equitable legal system that is able to work for the benefit of all individuals of society, lawyers must let who they are in the world impact their legal practice and the decisions they make within it. By engaging with the work of Constance Backhouse, Trevor Farrow, and Duncan Kennedy, as well as taking into account personal experience that arose out of the class exercise, this essay will make an argument that the dominant model of lawyering and legal practice that views lawyers as dispassionate advocates, only upholds the status quo of dominant social groups and harms the objective of a just and equitable society. 

Although the legal profession and practise of law is restricted to a small group of individuals that is often not representative of society at large, the legal decisions that arise out of it, affects all people living within the particular legal framework. What happens in a courtroom or within the walls of law firms, broadly affects a large number of individuals who have no say when certain decisions are being made. This means that lawyers, who are the main actors within the legal system, have a broad obligation to, if not ensure the well-being of society at large, then at least consider the consequences that their actions will have upon it. As Trevor Farrow points out, “… lawyers, as self-regulated professionals, have been given the opportunity and responsibility to act not just in the interests of their clients but, more fundamentally, in furtherance of the ‘public interest.’” (Farrow 71). The idea of the “public interest” is fundamentally elusive and subject to a variety of opposing ethical discourse. However, a lawyer – with all the wealth of their training should have a grasp on what actions and decisions will distort the law and go against the rights and interests of groups that may fall within the purview of the particular case they are litigating. Not everything legal is moral. For example, while evicting tenants out of subsidized housing in order to build elite condominiums in their place may be legal, it would doubtless cause immense harm to not only the individuals being evicted but to the basic tenets of society that purport that all individuals are equal and have “the right to life, liberty and security of the person” (Canadian Charter, 1982, s 7). In his speech to the graduating class of the Washington College of Law, Duncan Kennedy talks about just that, “While it’s true no one should blame you for refusing to represent a client whose activity you disapprove of, that’s not enough. You should feel guilty, and we should disapprove of you, if you go ahead and argue a cause you think will do more harm than good. You shouldn’t take the case if you think it would be better for society, or more moral, for the client to lose. You shouldn’t take the case if you think the client shouldn’t be in court in the first place, for example, because the client should morally have made recompense even though he has a technically good legal defense. You shouldn’t take the case if your client is enforcing his legal rights, but is using his legal rights in a bad cause.” (Kennedy 1158). However, there is a flip side to this coin as well. If you as a lawyer think that doing something like this is perfectly normal and ethical then you should have the right to take on a client that seeks this course of action and work on their behalf. However, it is vital to acknowledge both the impact that this will have on individuals outside of your clients as well as your personal views at play when taking on such a task. 

This acknowledgement of personal biases as well as your own position in the world is crucial for a lawyer to have if they wish to engage conscientiously in the legal process. As briefly mentioned previously, the law is power and the legal profession has historically been closed off in order to control access to this power. In her essay, Constance Backhouse goes into great detail about the legacy of these exclusionary practices that have often been hidden under the guise of dispassionate professionalism. She points out that “The very notion of professionalism embodied the image of a tightly knit community, with shared culture, traditions and expectations” (Backhouse 5). Furthermore, the education needed to enter the legal profession was available to only the upper echelons of society. Even if someone not belonging to the dominant Anglo-Protestant group managed to pursue legal education, they were treated abominably under the guise of preserving a traditionally professional setting. Backhouse aptly writes that “The fact that so many lawyers were drawn from the ranks of privileged white males also affected their understandings of the world when they later became judges” (Backhouse 23). What this achieved was a largely homogenous group that was both resistant to changing from the inside and unable to see alternate perspectives not belonging to the group and social outlook that they inhabited. A result of this is that often lawyers who are not personally privy to an issue or experience that their client is dealing with, are not able to aptly deal with their concerns and represent them in the most effective manner. For instance, “When Aboriginal clients were represented by white lawyers, almost every effort to put the jurisdictional question on the record was misconstrued by counsel, unheard or mangled. White lawyers seem to have been simply incapable of comprehending the complex Aboriginal political and justice systems that had been operating for centuries before contact, or of imagining that the Euro-Canadian system was not the only option. The basic questions of sovereignty, then, were never truly considered or adjudicated.” (Backhouse 22). A diametrically opposite result can be observed when examining the conduct of Justice Corinne Sparks, the first Black Canadian woman to become a judge in Canada. While her decision to acquit a Black teenager of assaulting a white police officer was heavily criticized at the time by the legal establishment, even resulting in accusations of a reasonable apprehension of racial bias, her decision was later praised, as “Numerous official reports have documented racial inequities within the Canadian legal system, and many commentators have suggested that Judge Sparks’s decision actually reflected her sensitivity to the racism within the community, rather than ‘racial bias’ against the police.” (Backhouse 19). This incident illustrates the importance that a diversity of personal experience has on legal decision making as well as its ability to shape the law and gain new insights into it. The law is not only a matter of interpretation but also of practice. Duncan Kennedy purports that “lawyers are often—maybe usually—more than just legal technicians. They shape deals and they make law. They invent new forms of social life, they fill gaps, resolve conflicts and ambiguities. They mold the law, through the process of legal argument, in court, in briefs, in negotiations.” (Kennedy 1160). If a homogeneous group of people have been practicing and thereby developing the law for the majority of the existence of the legal system, then it can only benefit a small group of privileged individuals. 

It is crucial to allow lawyers to be able to let their experiences and opinions shape the way they practice, for only that way can new ideas and interpretations be added to the legal system and the law can grow to represent the society it is imposed upon. Doing so will allow lawyers to be more mindful of their own views and biases and “… not allow the lawyer morally to ‘insulat[e]’ herself ‘within her role’ from the justice or injustice of the client’s cause.” (Farrow 73). The lawyer should be morally implicated as this is the only way to ensure effective representation and equitable interpretation of the law. If lawyers fail to do so then “… the morality that ‘holds sway’ over their professional deliberation, that morality is ‘forced into the background, where it is not susceptible to exploration by the client.’ As such, the dominant model of lawyering is a fiction and is ‘not a harmless fiction, for it facilitates the tendency of clients to equate legality with permissibility’” (Farrow 74). This also opens the door for the dominant and traditional views and opinions to seep into legal decision making. Since it has been the go to mode of legal practice, it has become the default and breaking out of it requires both courage and a conscious effort on the part of lawyers whose views differ from the traditionally accepted ones. No legal activity is in and of itself neutral, every argument, motion, and decision made relies on years of previous decisions and legal theory. In his address, Kennedy writes “…your activity is not neutral, and the better your legal skills, the less neutral you become. Lawyers think up new rules, ideas, arrangements and arguments. Which ones win, which ones judges and juries and legislatures adopt, is a function of who has the legal talent on their side, as well as a function of the justice of the position” (Kennedy 1160). Therefore the acknowledgement of one’s own perspectives and lived experiences, as well as how they shape the way you view and practice the law, are vital. However, acknowledgement is not the only thing that must be done. One can acknowledge all this and decide not to act on their instincts and views of what is just. The opposite must occur. If all lawyers act on their views – within reason and making sure that they adhere to legality – then the law will be enriched with multiple perspectives, often opposing one another, which will allow for it to become more equitable and representative of the population at large. 

A telling example of this approach can be observed during the in-class activity. Although neither myself nor my classmates were actually in the position of practicing lawyers whose livelihoods depended on the clients they took on, the way that our outlook and legal reasoning was shaped by the roles we were given is quite telling. As government counsel tasked with representing the Ministry of Indigenous and Northern Affairs, as well as being given information that our client was worried about the precedent this case might set for other land claims across the country, one might have expected my group to take a hardline stance on the topic. Instead, we decided that the best path moving forward was for the government to adopt a position of reconciliation. One of the motivations behind this was the fact that according to our roles, we belonged to an indigenous group whose territories bordered on the lands next to the ones of the protestors. Another consideration that lead us to adopt this view was the realization that while we were working for and retained by the government of Canada, the government itself works for its citizens which gave us freedom to not strictly adhere to what the INA wanted us to do.Not only did we push our own views forward, we interpreted the law based on our views as well as what was best for our client. We decided that based on the path of reconciliation that the Canadian government has embarked on over the past decade, it would be in the interest of our client to keep pursuing this path. Nothing that we did or said went directly against the law. Rather, we held that the basic principles of justice as well as the government’s current stance and conduct was not compatible with the previous decision to sell unceded land to Blenco. The holistic, forward thinking approach that was adopted allowed us to more effectively negotiate with counsel representing the Indigenous protestors and imagine a mediation process that did not adhere to the Euro-centric judicial process that had previously brought harm to the community. 

While a reservation of this approach may be that due to liberal ideals imposed upon the developing brains of lawyers, no one will be left to represent big corporations such as Blenco, this was proven false during the activity. While taking the same class as counsel of other groups, Blenco counsel valiantly represented their client’s interests, spurred in part by the compensation they were to receive.

While this model of legal conduct is one which this essay argues for, a concession must be made that it is idealistic and somewhat utopian. Unfortunately, it can only function if we allow diversity within all levels of legal practice. If this is not the case, then a dispassionate advocate or hired gun approach, as set in its ways as it is, would be more equitable and beneficial. While this approach would not allow for a diversity of views and legal opinions, it presupposes “Lawyers as champions of client freedom militate against a tyranny of the majority or of the executive (in line with de Tocqueville’s observations about lawyers) which is particularly important in the context of a legal profession that essentially has a monopoly over the provision of increasingly complicated and necessary legal services” (Farrow 65). While this approach will still fall prey to the inability of lawyers belonging to a dominant group to effectively represent clients from a group whose struggles they know nothing about, it is better than the same lawyers refusing to represent clients due to the fact that they do not agree with their position. This would deny already marginalized groups further access to the legal system and agency over their lives. If there is no alternative within a homogeneous system, then dispassionate advocacy would seem to be the only way to move forward. However, this would simply be like putting a bandaid on a gunshot wound. The problems that plague our society run deeply and the only way that we can hope to solve them is through systemic change, “Major structural changes are required to set things right” (Backhouse 26). This is why it is so vital to ensure that legal education is available to everyone and that marginalized groups are allowed to practice freely within the legal profession. 

The legal system is an important aspect of living in society. Yet, due to historically discriminatory practices that sought to consolidate power in the hands of one dominant group, a variety of individuals has been excluded from practicing and influencing law. One way to combat the dominant narrative and views inherent in the current law and its interpretation is to allow the lived experiences and view of lawyers to impact how they practice law and which cases they take on. This will expand the purview of the legal system and make it more equitable and representative of a diverse society. 

Works Cited

Backhouse, Constance. “Gender and Race in the Construction of ‘Legal Professionalism’: Historical Perspectives.” October 2003, p. 1-26.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.

Farrow, Trevor C. W.. “Sustainable Professionalism.” Osgoode Hall Law Journal vol. 46.1, 2008, p. 51-103.

Kennedy, Duncan. “The Responsibility of Lawyers for the Justice of Their Causes.” Texas Tech  Law Review, vol. 18, 1987, p. 1157-1163.