Ethical or Unethical: An angry letter to the Judge

This session, the Supreme Court of Canada will hear an interesting appeal involving the case of Maître Gilles Doré.

Me. Doré is a Quebec lawyer, who wrote a personal letter to a judge complaining about how the judge had treated him in court. The judge then apparently then gave the letter to the Chief Justice of the Court, and the Barreau du Québec, which regulates lawyers in Quebec.

The Barreau suspended Me. Doré for 21 days.

Interestingly, the Canadian Judicial Council, to whom Me. Doré had also complained, issued the judge a severe reprimand, which suggests that Me. Doré’s complaint had merit.

Me. Doré appealed the Barreau’s finding to the Quebec Court of Appeal on constitutional grounds. He argued that if Quebec’s Professional Code, which governs lawyers, makes him subject to discipline for harshly criticizing a judge in a personal letter, then the Code violates his constitutional right to freedom of expression. The Court of Appeal disagreed, and upheld his suspension. Now, he’s taking his argument to the Supreme Court of Canada.

Me. Doré makes an interesting point.

I’ve written previously about the need for civility among lawyers, and I remain of the view that a lawyer who cannot separate himself from his client’s emotions about the file is generally of little use. Practicing law while antagonizing the other lawyers and parties in the matter is ineffective, and tends to suggest a competence issue.

In addition, the ethical codes in most jurisdictions contain provisions requiring lawyers to behave respectfully toward each other and the court. The violation of those rules diminishes counsel’s effectiveness, and tends to undermine the public’s respect for the profession, and faith in the rule of law.

But what of the situation where it was the judge whose conduct has tended to undermine counsel in a particular case, and the rule of law generally? Must lawyers always take a subservient attitude toward the court?

I think there is a real argument that lawyers, in their capacity as officers of the court, are fully within their rights in contacting a judge to express concern about having been unfairly treated, provided that the complaint is well founded, and the lawyer properly observes all of the ethical rules that apply to discussing particular files in the absence of opposing counsel. In fact, doing so might actually be better, both for the individual lawyer and for the administration of justice.

The Ontario Court of Appeal has said that the Courts need not be treated like fragile flowers that will wither in the heat of controversy. Those comments were made in the context of contempt proceedings taken against a lawyer who said “[t]he courts and the RCMP are sticking so close together you’d think they were put together with Krazy Glue.” Should the lawyer answering a disciplinary complaint arising from the private, though infelicitously worded complaint to a judge be held to the same standard?

It is difficult to see why not.

In this case, the letter was made public not by the lawyer, but by the judge. In fact, the letter itself said that the lawyer saw the dispute as being private and personal, and states explicitly that there is no need for it to be broadcast. Accordingly, there is no indication that the letter was calculated to scandalize and embarrass either the recipient judge, or the Court.

The wording of the letter is certainly harsh, but the impact of that choice of wording is not likely to have an impact wider than counsel’s own relationship with that judge. If the judge has a personal bias against counsel, then the judge likely has a duty to recuse himself from matters involving that lawyer. Hence, there is not likely to be any impact on either counsel’s own ability to serve his clients, nor on the profession or on the administration of justice generally. If that is the case, then there likely isn’t any need for professional sanction.

If there is no need for professional sanction, then Me. Doré appears to have a good argument that his Charter right to freedom of expression is being violated.