Tom Jarmyn

Limitations on Special Advocates

This article from the Ottawa Citizen reports a decision of Judge Noel in the Harkat case with respect to the ability of special advocates to test the case against the individuals whose interests they are representing in security certificate proceedings.  The text of the decision is not yet posted.

Special advocates are appointed in security certificate proceedings pursuant to section 85 of the Immigration and Refugee Protection Act. Special advocates, once they are appointed, are supposed to test the government's case against the subject of a certificate but are prohibited from communicating with the subject.  Note that I do not suggest the special advocate is representing the interests of the subject because section 85.1(3) says that the subject is not the client of the special advocate.

Justice Noel's decision arises from an application by the special advocates to access the personnel files of the first agent who interviewed Mr. Harkat.  This agent was dismissed from service when it was found that she was romantically involved with an individual who was under investigation by CSIS.  The other application that was dismissed was a request to cross-examine, in a closed court, human intelligence sources whose evidence was highlighted in the files.  Justice Noel denied the request because covert sources are necessary to intelligence gathering and requiring those sources to testify, even in closed court, would adversely affect national security.

Presumably these are sources who are not third parties and are under the control of the government.  Prohibiting counsel from questioning individuals who are under the control of the government seems like a further unjustified fetter on the ability of the special advocate to test the case.  They are already prohibited asking the subject anything about the file and are therefore testing the case in circumstances in which they have no real knowledge of how they subject's circumstances.

One wonders if there will come a time that teh special advocates realise they are being fettered to the point of becoming ineffective in these matters.  I continue to ask whether these lawyers are acting ethically in accepting these restrictions - I realise that they are trying to make the best of a bad situation but if they cannot effectively accomplish the task that is set to them why should the accept it.

If the government was not able to obtain lawyers to fulfill these roles then it would not have the fig leaf of these appointments to justify secret hearings.

Ethics versus Productivity

This article by Kirk Makin in the G & M on Wednesday suggests that there is a conflict between billing requirements for junior lawyers and a decline in ethics in the legal profession.  While I have many critical things to say about the way the legal profession organizes itself and seems to encourage certain responses I have to say that I find it amusing when junior lawyers complain about how much pressure they are under to produce.  Where else would a first year professional even contemplate a salary of $90,000 a year? 

Yet this 2007 survey from Lawyers Weekly indicates that first year lawyers at mid-size to large law firms will receive salaries ranging from $65,000 to $90,000 and that the range for lawyers with 1 to 3 years experience is from $65,000 to $117,000.  People who earn those types of wages are expected to produce.  Firms that paid their associates less than market but offered a better professional development experience often find themselves passed over by the very same talented associates who claim to look for a lifestyle but in fact want the top dollar.

There is lots of information about firms out there and it is easy to find out which firms demand production and which will provide a good experience.  It is incumbent upon these young lawyers, who are advising clients on very difficult matters, to make the personal choices that will allow them to become the lawyers they want to be and not rely upon others to make those choices for them.

The other interesting element of this article is its tendency to conflate the concepts of professional skill and competence with ethics.  Professional skill may, and I emphasise may, be a subset of ethics but it is by no means all or even a majority of the elements of legal ethics.

Lawyers - Virtue Ethics, Utilitarian Ethics or Kantian Ethics

There is a common belief that the ethics of the legal profession is based upon a virtue ethics model.  Namely that our goal is to be the best lawyer that we can be based upon a concept of what the perfect lawyer is.  There is a focus on the pursuit of justice as a primary aim among other things.

The problem with that conception is that it does not provide us with a basis to balance our obligations to a number of parties within the system.  How do we choose when there is a conflict between various obligations to parties.  What do we do when a lawyer's duty to a client conflicts with broader obligations to either society or the court.

I think there is a realistic argument that we could, instead, use a utilitarian ethics model in which we assess our individual obligations based upon a utility model aimed at achievement of justice. The problem with this approach is that it would require us to evaluate these procedures on a step by step basis rather than having a broad set of rules and therefore there would be concerns about uncertainty.  One method of resolving this would be to use the two step utilitarian analysis of Richard Hare - develop a broad set of rules but acknowledge there are circumstances of conflict in which one value or another may have to be given up.  If there is a consistent patter of sacrificing one rule then we will end up having to modify the rule.

However, I think that there may be a model based upon duty ethics that could work and this will be something that I intend to explore over the next few months.  In the long run I would like to test the duty ethics model against the utilitarian ethics model and determine how they will resolve issues of privilege and confidentiality.