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| Michael D. Lucas |
To give meaning to the rule of law, lawyers must not be identified with their clients or their clients’ conduct when agreeing to represent a client. Lawyers must be able to represent any client they are qualified and competent to represent, and a client has a right to choose who represents them without fear of threat or sanction. This basic principle upholds the independence of the bar and protects the rule of law by allowing the unfettered provision of legal advice to those who need it, including those whose interests may diverge from those in power. Otherwise, lawyers could be coerced by powerful interests into limiting their provision of legal services only to clients who those in power deem acceptable for representation.
Government targeting of lawyers or law firms based on who they may represent or, even worse, who they have represented in the past represents a grave danger to the rule of law. This tactic is used in dictatorial autocracies such as Russia, China and Iran — all nations that eschew the rule of law in favour of government control at the cost of their own people.
President Trump’s actions against Perkins Coie and other firms may not (as yet) directly target any individual lawyer’s liberty or security. For now, his methods of coercion and threat remain economic — he will go after the law firm’s bottom line. But at the end of the day, the message is clear: don’t represent people who President Trump doesn’t like or who may oppose his government or its policies. If you do, things will be difficult for you.
Lawyers must be permitted to perform their services regardless of who the client may be. The rule of law requires that everyone be held accountable before the law, and that everyone may benefit equally and fairly from its protections. No state should have the sole power to determine who can and cannot provide legal services, or limit who has access to those services.
What is happening in the United States highlights the reasons the Law Society of British Columbia is challenging the provincial government’s Legal Professions Act, which was passed last year. That legislation will give the government the ability, if it chooses, to overwrite rules set by the regulator relating to the licensing and discipline of lawyers. This could give government the power to determine who can become and who can remain a lawyer, thereby impacting the independence of the bar that is essential to preserving the rule of law. If at some future date a populist, autocratic and perhaps insecure party leader were to become premier, what are the chances they could use their powers to threaten or limit the abilities of lawyers to act for all who need legal advice? Saying that could never happen in B.C. sounds less convincing than it used to, especially as we glance to our south.
Michael D. Lucas, KC, is general counsel and senior policy counsel for the Law Society of British Columbia.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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