By: David Tanovich Published on Thu Nov 06 2014
As a law professor and one who teaches legal ethics, one of the most troubling parts of the Jian Ghomeshi story for me is the question of the ethics of the civil lawsuit filed by his lawyers against the CBC for a staggering $55 million.
There are serious systemic problems in our justice system surrounding the treatment of sexual assault complainants. There is a culture of intimidation, denial and blaming by police, lawyers, judges and juries that plays a significant role in explaining why so many women do not report their assault and why there are more acquittals in sexual assault cases than for any other offence
In my view, lawyers have played a significant role in the silencing of sexual assault. Anyone familiar with the criminal justice system will tell you, if they are honest, that lawyers appear willing to be more zealous in defending a client charged with sexual assault than for any other offence. Indeed, one prominent Ottawa lawyer once told a group of young budding lawyers that their role in cross-examining a sexual assault complaint is to “whack the complainant … if you destroy the complainant … you destroy the head … you’ve got to attack the complainant hard with all you’ve got.” More recently, a senior member of the bar told a group of lawyers that their job was to “kill” the complainant in cross-examination.
That then brings me to the Ghomeshi lawsuit. Is it another example of the complicity of lawyers in the silencing of sexual assault complainants? If yes, is it ethical for lawyers to follow the instructions of a client to accomplish that purpose?
A number of leading employment lawyers in Canada have been quoted as saying that the lawsuit is frivolous and has no chance of success. Brian Radnoff of Lerners has said that “the document reads more as a publicity stunt than a serious legal challenge.” Howard Levitt of Levitt & Grosman is quoted as saying that “as a unionized employee, [Ghomeshi] has no recourse to sue — and that he and his lawyers must know that.” In other words, the law only grants Ghomeshi the right to seek a remedy pursuant to his collective agreement and not through the civil courts.
So why was it filed? Levitt gets it right, in my opinion, when he notes that the lawsuit is about “intimidating women from going public with allegations of assault at Ghomeshi’s hands” and that “his interest lies in doing his best to ensure both that his narrative prevails and that those with a different tale to tell are silenced. This multi-million-dollar action, however frivolous legally, might just accomplish both.”
None of these senior lawyers, however, have publicly questioned the ethics of the lawsuit notwithstanding their recognition of its chances of success and purpose.
While it is true that lawyers owe a duty of loyalty to their client, lawyers also owe a duty to the profession and the public and to ensure that their conduct does not bring the administration of justice into disrepute.
In Ontario, all lawyers must swear an oath (like the Hippocratic oath doctors swear) before they are eligible to practice law. Part of the oath contains the following commandment: “I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretenses.” The Rules of Professional Conduct also prohibit a lawyer from “instituting … proceedings which, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party.”
Now thinking about ethics rarely permits a definitive conclusion on any set of facts. For example, notwithstanding the prohibition on filing frivolous lawsuits, there may be a broader social purpose in doing so. A test case is one example. Another might be to draw attention to a systemic problem. None of those appear to be the case here.
If the purpose was to silence, in my view, the lawyers should have refused to accept the brief. This is a fundamental issue and an important part of our public discourse surrounding this case.
Lawyers and the public need to hear from our regulatory bodies about whether the profession is prepared to accept this as business as usual.
David Tanovich is a professor of law at the University of Windsor where he teaches and writes in the areas of criminal law, evidence and legal ethics.
