The secret lives of judges – Part I

For a professional person, the notion that one’s professional life can be insulated from one’s personal life is pure fiction.

That will undoubtedly be the lesson Justice Lori Douglas, and her husband, lawyer Jack King take from the embarrassing circumstances in which they now find themselves.

Justice Douglas is presently the subject of a complaint filed with the Canadian Judicial Council by her husband’s former client, Alexander Chapman. Mr. Chapman has also filed a complaint with the Law Society of Manitoba over Jack King’s conduct while he represented Mr. Chapman in a divorce proceeding.

The allegations are that Mr. King showed Mr. Chapman nude pictures of his wife and solicited him to have sex with her. Mr. King had also posted nude pictures of his wife engaged in various sex acts on a website whose purpose seems to have been to facilitate interracial sexual encounters.

The story raises important questions about the duties of judges and lawyers to the administration of justice. As the CBC’s Cecil Rosner put it:

We believe this story about the judge whose lawyer-husband had published nude photos of her on the internet has important implications for the public.

The issues here deal with a lawyer’s duty to a client; the duty of other legal professionals to report matters of concern to the relevant professional associations; the duty of a potential judge to disclose pertinent matters in advance of his or her selection; and the responsibilities of judicial selection committees as they make their choices.

Also of concern here is what the public is entitled to know about all these things.

Mr. Rosner is entirely correct, and contrary to the sentiments of some members of the Bar, the CBC was entirely justified in publishing the story.

Whether or not Justice Douglas knew how her compromising photographs were being used, there is no question that she must resign.

There are two reasons: Firstly, the photographs reflect poorly on her, and on the judiciary; secondly, there are serious questions about how Justice Douglas answered important questions in her application for appointment to the bench.

I plan to explore these reasons in two parts. This post will deal with the first reason.

In making these arguments, I am not suggesting that judges, or that persons in professional life generally, have no entitlement to privacy. They certainly do, but there are certain risks one assumes in personal life that impact upon a lawyer’s ability, and a judge’s ability, to continue in his profession.

A poor reflection on the judiciary

Every code of professional conduct for lawyers contains language to the effect that a lawyer must not engage in conduct outside professional life that reflects poorly upon him, the legal profession, or the legal system. In the Canadian Bar Association’s Code of Professional Conduct, Commentary no. 1 under Chapter XIX states that:

Public confidence in the administration of justice and the legal profession may be eroded by irresponsible conduct on the part of the individual lawyer. For that reason, even the appearance of impropriety should be avoided.

Commentary no. 10 goes further:

The lawyer should try at all times to observe a standard of conduct that reflects credit on the legal profession and the administration of justice generally and inspires the confidence, respect and trust of both clients and the community.

The American Bar Association‘s Model Rules of Professional Conduct contains similar language, at Rule 8.4(d).

While Canada does not have a binding code of judicial conduct, the commentary under chapter 2 of the Canadian Judicial Council’s Ethical Principals for Judges provides

5. Given the independence accorded judges, they share a collective responsibility to promote high standards of conduct. The rule of law and the independence of the judiciary depend primarily upon public confidence. Lapses and questionable conduct by judges tend to erode that confidence. As Professor Nolan points out, judicial independence and judicial ethics have a symbiotic relationship. Public acceptance of and support for court decisions depends upon public confidence in the integrity and independence of the bench. This, in turn, depends upon the judiciary upholding high standards of conduct.

The Supreme Court of Canada commented on the role of judges in society in Re Therrien, 2001 SCC 35. As the Court observed in that decision, society invests judges with important powers and responsibilities. In their role, they are asked not only to uphold the ideals of Truth and Justice, but to embody them.

In that role, society expects the conduct of judges to be above reproach. The Court went on to state that as persons whose role it is to judge the conduct of others, their own conduct must be beyond the judgment of others. They are expected to show an exceptional level of wisdom and propriety, and it is inevitable that an appointment to judicial office entails the loss of a certain amount of personal freedom.

Lori Douglas is probably not alone in having consented to having sexually explicit pictures taken of her. Karen Busby, a law professor at the University of Manitoba is quoted as saying she ventures that “…most people have sex pictures out there somewhere…”.

I venture that’s bunk.  While she may not be alone in having had “sex pictures” out there, she is not “most people”.  She is a sitting justice of a superior court.

In any event, people may well allow sexually explicit images of themselves to be made, but society is less than accepting of that practice, particularly when those images appear on the internet.  It is behavior that might be expected from teenagers, or an immature Hollywood starlet; it is not something society accepts from those whom it expects the most serious character, and the most sober minded wisdom.

That those pictures may have been posted without her consent is immaterial. They were posted, and certainly, at least one member of the public excluding her husband, now has them.

The nature of legal proceedings is that they create winners and losers. Litigants might walk away from court feeling dissatisfied with their outcome, but the system depends on their respect for the main players in it – particularly the judges. If judges lose the confidence of the system’s end users, their decisions lose their legitimacy.

And contrary to Christie Blatchford‘s suggestion that “A judge’s credibility depends on legal knowledge, fairness, experience and courtroom manners, not what he does with his member, or what she does with it”, the public rightly scrutinizes every aspect of a judge’s character.

Whether or not society has become more accepting of the fact that some people might enjoy making racy home movies and photo albums, persons in responsible public office run the risk that if thoses pictures become public, societal mores and norms will mean they can no longer lay claim to the public confidence necessary to properly carry out their duties.

Judges cannot afford the luxury of a sex scandal.