Friday, April 06, 2012

The transcendent civility of verbal eunuchs

The case with the most amusing facts in a long time is Doré v Barreau du Québec, 2012 SCC 12 (22 March 2012). A judge was rude to counsel and counsel was rude to the judge. Both received reprimands from their respective disciplinary bodies.

The odd thing about this case is that whereas the judge was rude to counsel in open court, counsel was only rude to the judge in a private letter to him.

Another thing, not quite "odd" but at least strange, is that after setting up a fine sort of conceptual structure for the review of administrative decisions when Charter rights are involved, the Court's application of it to the facts is shrouded in mystery. The answer pops out, but because the private nature of counsel's letter was not taken into account we can't be sure why it didn't go the other way.

Valuable aspects of the judgment concern the duties of judges and of counsel as far as behaviour in court is concerned:

Judges must show respect for officers of the court (counsel), they must not be impatient and they have a duty to listen calmly to the parties and to counsel. They must respect the dignity of every individual who argues a case. Comments must not be immoderate. [14]

Counsel are bound by rules of professional conduct, and these include a requirement to behave respectfully and not undermine the processes of the court or the dignity of the judiciary. But at the same time counsel have rights of free speech, and a role in ensuring the accountability of the judiciary [64], and the protected tenure enjoyed by judges increases the threshold for the lawyers' expressive rights [65]. The balance between criticism and upholding dignity is fact-dependent and a discretionary administrative exercise. Criticism is measured against "the public's reasonable expectations of a lawyer's professionalism" [69] and must not overstep 'the generally accepted norms of moderation and dignity" [70].

The Supreme Court agreed with the conclusion of the disciplinary tribunal that had censured counsel.

In reality, the policy of discouraging a flood of vigorous personal correspondence between bar and bench may well have been the elephant in the courtroom.

"Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer's equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint." [68]
In this case one is tempted to suggest that the proper outcome would be to gather the judge and the lawyer together, get them to laugh a little, and send them off for brain scans, as ill-temper can be a symptom of tumours.