Two South Africans in Canada made international headlines recently when they successfully asserted that whites are a persecuted minority in their native country.
But while efforts by Ottawa immigration lawyer Russell Kaplan resulted in a surprising victory for his client Brandon Huntley before the Immigration and Refugee Board, Kaplan is now in a conflict of interest and should withdraw from the case as the federal government seeks a judicial review.
Kaplan made two critical mistakes in the case. First, he offered his sister as a witness. Second, he released the IRB’s decision to the media and failed in his attempt to black out the information about his sister and other members of his family.
Now that this information has become public knowledge, Kaplan finds himself and details of his family at the centre of controversy.
As a result, Kaplan is left simultaneously trying to protect his family’s privacy and the interests of his client. Kaplan should now help his client get a new lawyer.
All clients are entitled to the complete and undivided loyalty from their lawyer, a notion the inspiring words of Lord Brougham at the 1820 trial of Queen Caroline spelled out: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.
To save that client by all means and expedients, and at all hazards and costs to other persons and, amongst them, to himself, is his first and only duty . . . .”
This duty of “zealous advocacy” requires lawyers to do such things as keep client confidences and avoid conflicting interests. Other responsibilities, such as candour and fairness that the lawyer owes to the courts, also come into play, but the advocacy duty remains the dominant paradigm in Canada’s legal profession.
Thus, Kaplan shouldn’t be faulted for raising the argument that his client faced persecution if he returned to South Africa. What is shocking, of course, is that the board actually accepted his assertions, particularly since the IRB doesn’t have a reputation for being very receptive to novel claims of persecution.
In many cases, lawyers are frustrated by the board’s refusal to accept claims supported by human rights reports from organizations such as the U.S. State Department, Amnesty International, and Human Rights Watch.
Of course, none of these organizations have produced reports on the persecution of whites in South Africa, so Kaplan did what any diligent lawyer would do: he looked for the best evidence he could find to support his client’s claim by finding a white South African who was willing to testify about the alleged persecution she had experienced.
The problem was that this witness is his sister.
In legal ethics, we often talk about “a gut check” or, even better, “bar stool ethics.” What would ordinary people sitting in a bar think of this? In Kaplan’s case, many people are recoiling from his revelation, and I think they’re right to do so.
No rule prohibits a lawyer from representing a family member or from using a relative as a witness. This doesn’t mean that doing either is a good idea. Lawyers are supposed to exercise independent judgment to give their clients their best advice.
Their ability to do so is in jeopardy when family comes into the mix because their personal concerns for their loved ones can get in the way of their duties to their client.
This has now happened as a result of Kaplan’s second mistake: providing the documents to the press while unsuccessfully attempting to block out three sentences that identified not only his sister but other members of his family.
In attempting to block out this information, which only the IRB or a court can order be kept secret, Kaplan was looking out for the interests of his family. That, in turn, begs the question of whether he is acting in the best interests of his client or his relatives.
Because of his actions, Kaplan has become part of the story and part of his client’s legal problems.
Under domestic and international pressure, the federal government has announced its intention to appeal the decision. Surely, Kaplan’s actions and the testimony of his sister will come under scrutiny in that appeal.
Kaplan has now become part of his client’s case rather than an advocate for it. The best thing he can do now for his client is to step aside and help him find another lawyer.
Adam Dodek is an associate professor at the University of Ottawa. He can be reached at [email protected].
