Imagine two potential civil litigation clients. Both present you with problems well within your expertise and both satisfy your financial retainer requirements. Neither ask you to do anything unethical or underhanded.
The first is a quiet, respectful person who appreciates the limits of the law and wants you to pursue a clearly valid claim. The other is an unpleasant, extreme individual with a warped view of justice and a claim that is marginal.
You explain the law to both clients together with the likely results of litigation. Both ask you to go ahead and issue a claim. What do you do?
The new lawyer’s oath to be taken by lawyers in Ontario says: “I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client.” The new oath is, in this regard, the same as the barrister’s oath and mandates that a lawyer accept any non-frivolous case. On the surface you are ethically obliged to assist the pleasant and the unpleasant client.
As Lord Edward Pearce said in
Rondel v. Worsley: “It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case.
Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”
Everyone is entitled to justice. It is easy to see that when representing, say, an accused charged with a brutal crime. Memories of
To Kill a Mockingbird and
Atticus Finch spring to mind. It is less obvious when dealing with a civil client who is claiming something that seems unjust or excess. But civil clients are entitled to access to the courts as much as any other clients.
Especially in a time when the self-represented client is commonplace, the need for a lawyer to represent that unpleasant civil litigant is even more important. The unpleasant litigant will go ahead and litigate whether represented or not - at least when a lawyer is involved there is some hope the case will be decided on its merits.
This last point is of considerable importance - the unrepresented client will often lose because of procedural errors and for cases to be decided on process rather than merit is a scandal to justice. Fairly put and honestly argued, even the unpleasant client’s case may have merits the lawyer does not see.
The lawyer’s job is not to judge but to advocate, and to advocate on behalf of all who properly seek the lawyer’s service. It is the client’s case and not the lawyer’s case. There are not two judges in Canadian courts - our judges are well able to decide the merits of cases and that is their role.
If all lawyers subscribed to the ethic that they would only represent “causes that contribute to the common good” (as some have said is the proper ethical position) our system would collapse.
A judge is to judge; that is not the lawyer’s job.
All that said, the unpleasant client will bring you no glory. You will probably lose and you will probably be blamed for losing. Some will think you lack “common sense” for bringing a problematic claim. The money from fees will not redeem the heartache and sorrow. You will spend hours on the telephone explaining why the process is as it is. Your task will be thankless.
But it is your duty. Being a lawyer comes with privileges but also responsibilities; the duty to take the unpleasant client is one of those duties.
James Morton is a litigation lawyer with Steinberg Morton Hope & Israel LLP. He teaches evidence at Osgoode Hall Law School and blogs at www.jmortonmusings.blogspot.com. He can be reached at [email protected].
