Re: IN THE MATTER OF A HEARING REGARDING THE CONDUCT OF ROBERT P. LEE, A MEMBER OF THE LAW SOCIETY OF ALBERTA
To: Law Society of Alberta
From: Brian M. Samuels, Barrister and Solicitor (BC) & Gail Davidson, Executive Director, LRWC
Date: 2009-07-06
This letter of support is provided by Lawyers’ Rights Watch Canada (“LRWC”). LRWC is a committee of Canadian lawyers that provides support internationally to lawyers in danger and promotes the application and enforcement of international human rights standards. LRWC has Special Consultative Status with the Economic and Social Council of the United Nations.
This letter is provided because, based on the facts described in the written reasons dated May 1, 2009 (the “Reasons”) issued by the Hearing Committee, LRWC believes that Mr. Lee is deserving of support for the following reasons:
1. Mr. Lee typically represents clients who have grievances against the Alberta Government (para. 1 of the Reasons);
2. The charges against Mr. Lee were all brought by complainants who work directly or indirectly for the Alberta Government (Reasons, para. 2); and
3. There is a risk that lawyers may be discouraged or dissuaded from accepting cases against the Alberta Government if inappropriate disciplinary measures are imposed.
ABOUT LRWC
Much of LRWC’s work is on behalf of advocates who are attacked or threatened by their own governments for representing people who are involved in politically sensitive causes or cases.
It is rare that LRWC finds it necessary to support a Canadian lawyer against threat or attack by his own provincial government. Most of LRWC’s work is focused on lawyers who are under threat in countries without the strong legal protections that we are privileged to enjoy in Canada.
The disciplinary proceedings against Robert Lee do not appear to involve typical complaints against a lawyer. Rather, the complaints underlying the proceedings appear to be part of an attempt by the Alberta Government to silence or punish a lawyer who frequently acts on behalf of people with claims or complaints against that government. That is one of the reasons this case has drawn the attention and support of LRWC. As described below, the conduct of the Alberta Government brings this case directly within our mandate, which is to support lawyers who take on cases against their government and who face retaliation by that government through intimidation, interference with the right to earn a livelihood, or interference with clients’ access to counsel.
In support of Mr. Lee, we suggest that the Law Society should consider, in determining sanctions and costs, the facts and principles set out below.
ROBERT LEE’S PRACTICE
As stated, Mr. Lee typically represents clients who have grievances against the Alberta Government, primarily those who have been involved with child welfare. He has practiced as a sole practitioner, “taking hard cases for people who would have difficulty obtaining representation.” (Reasons, para. 18). Mr. Lee has a reputation for being passionate about representing children who have been victims of sexual assault (Reasons, para. 118). Mr. Lee takes on such cases even though the clients may be abusive or difficult (Reasons, para. 132). Mr. Lee is highly regarded by the native community, because he is one of the few lawyers who will take cases for members of that community (Reasons, para. 130) (emphasis added).
Mr. Lee acts as a magistrate and Justice of the Peace, and is known to be ethical, honest, and “interested in wanting the legal system to be more accessible to poor people.” (Reasons, para. 124).
Mr. Lee is counsel in a class action suit against the Alberta Government, regarding children in care (Reasons, para. 128). Mr. Lee’s principal adversary, the Alberta Government, has unlimited resources and time (Reasons, para. 154). It is apparent that the Alberta Government uses those resources to frustrate legitimate attempts to secure justice (Reasons, para. 151 – 152, and 158).
In summary, the cases in which Mr. Lee acts on behalf of clients may be described as being:
a) principally against the Alberta Government;
b) on behalf of disenfranchised and vulnerable members of society, mostly abused children;
c) cases that do not pay well;
d) cases take a very serious emotional toll on everyone involved; and
e) cases that, for all of these reasons, most lawyers are not willing to accept.
THE CONDUCT OF THE ALBERTA GOVERNMENT
Given LRWC’s purpose, as described above, we believe that the involvement and conduct of the Alberta Government is a relevant factor in determining penalty and costs.
As stated above, the charges against Mr. Lee were all brought by complainants who work directly or indirectly for the Provincial Government (Reasons, para. 2). We are advised that initially, there were 19 complaints made against Mr. Lee by employees or agents of the Alberta Government, and that 12 of these complaints were considered baseless so as to be dismissed without referring them to the disciplinary committee.
The Alberta Government also sought to prevent Mr. Lee from fully defending himself. For example, at Mr. Lee’s disciplinary hearing, a representative of the Alberta Government attempted to prevent Mr. Lee from speaking with witnesses, and to prevent those witnesses from testifying (Reasons, para. 8 – 11).
In defending against claims advanced by Mr. Lee on behalf of his clients, the Alberta Government has relied on specious, intellectually dishonest, and absurd arguments, and has withheld and willfully refused to produce relevant documents (Reasons, para. 26 – 30). Further, the Alberta Government routinely obtains counsel for children in criminal, family, youth and motor vehicle matters, but NOT where the government is implicated in causing harm to the child (para. 125).
The Alberta Government has interfered with Mr. Lee’s right to earn a living, by threatening to withhold funding from the Alberta Association for Children and Families (AASCF), an organization principally funded by the Alberta Government, unless it cancelled a contract with Mr. Lee for a speaking engagement (Reasons, para. 127 – 128). The Alberta Government has sought to prevent individuals in custody from speaking with or retaining Mr. Lee (Reasons, para. 158).
In summary, it is apparent that the Alberta Government perceives and is treating Mr. Lee personally as its enemy, because he acts as an advocate for those who have claims against it. In other words, the circumstances surrounding this matter are an unfortunate example of a lawyer being “brought to heel” by a government that is intent on discouraging lawyers from representing people with claims or complaints against it.
APPROPRIATE DISCIPLINARY MEASURES
It is clear that the Law Society of Alberta has an obligation to govern the profession and, in appropriate cases, to discipline lawyers who violate its Rules. However, those Rules were put in place in order to assist both lawyers and the justice system in upholding some basic and fundamental principles that govern the administration of justice and the practice of law. Those principles are brought into focus by this case. It is important not to lose sight of those principles when applying the Rules and considering what disciplinary measures may be appropriate. These basic principles include:
- the right of both victims of abuse and persons accused of crimes to be represented by a lawyer empowered to effectively protect rights and achieve justice ;
- the right of lawyers to perform their professional functions without intimidation, harassment or improper interference ; and
- the prohibition against identifying lawyers with their clients’ causes. It is a basic principle of our legal system that a lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
It is a time-honoured principle that lawyers should be free and independent from government interference, so that they may fully and vigorously represent clients within the provisions of law and ethical standards that govern the legal profession. A bar that is free from direct or indirect threats of all kinds, including economic threats, is essential to the administration of justice.
These principles must be kept in mind, and enforced, a fortiori, in cases where the client is disenfranchised, without resources, indigent, or otherwise vulnerable. That is precisely the situation in this case.
The independence of the legal profession is fundamental to the development and maintenance of the rule of law in a democratic society. The UN Basic Principles on the Role of Lawyers articulate the critical importance of ensuring the right and duty of lawyers to represent clients’ rights vigorously. The UN Principles state that all persons are entitled to protection of human rights and fundamental freedoms, and to “effective access to legal services provided by an independent legal profession” (Preamble). Accordingly, lawyers are not to be “identified with their clients or their clients’ causes as a result of discharging their functions” (Article 18). The UN Principles require governments to ensure that lawyers are able to perform their professional functions “without intimidation, hindrance, harassment or improper interference” (Article 16), and that lawyers are not subjected to or threatened with “prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics” (Article 16). The UN Principles are explicitly based on the Universal Declaration of Human Rights (UDHR) as well as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which emphasizes the obligations of States under the UN Charter to promote universal respect for, and observance of, human rights and freedoms (Preamble). Canada has ratified the ICCPR and the ICESCR. The UN Principles on the Role of Lawyers also state that codes of professional conduct for lawyers must comply with national law as well as international standards and norms (Article 26).
Thus, LRWC respectfully maintains that the Rules of the Law Society of Alberta must be read and applied so as to uphold the independence and autonomy of the legal profession (Article 1). In disciplinary hearings, lawyers have the right to a fair and fair and impartial hearing in accordance with recognized standards and ethics of the legal profession (Article 27). LRWC respectfully urges that this means the Law Society of Alberta in its deliberations must act to protect the public’s right to honest, competent and vigorous legal representation and resist influences that would impair a lawyer’s duty to so act.
The citations for which Mr. Lee was convicted are very minor in nature. For example, one of the citations (Citation 6) is for shouting at a meeting. None of the matters involves alleged dishonesty. Nor do they reflect adversely on his competence. If anything, they reflect well on his willingness to devote himself to the protection of his clients’ rights. Nor do any complaints suggest a failure by Mr. Lee to promote and protect his clients’ interests. The convictions result from a lawyer dealing with numerous emotionally charged cases, which sometimes involved obstructionist tactics by the Government. In these very difficult circumstances, on a few occasions Mr. Lee showed an emotional response. The conduct for which Mr. Lee was found guilty is at the lowest end of the spectrum of misconduct.
It is also relevant to consider that lawyers should be actively encouraged by the Law Society to represent the kinds of clients for whom Mr. Lee acts. Those people are among the most vulnerable in Canada, and the most in need of legal counsel and assistance. Their personal circumstances and their cases are among the most difficult imaginable. To impose a severe punishment on a lawyer who takes on such clients and their causes and who, on occasion, shows an understandable if not excusable emotional response to very difficult circumstances, will discourage lawyers from taking on these challenging but important cases. It is of the utmost importance to achieve a proper balance between the interests at stake: those of the complainants and those of the administration of justice.
Mr. Lee has already been subjected to the punishing cost of a very lengthy hearing, much of which dealt with citations that were dismissed. He has also incurred the cost and expense of having to deal with the numerous complaints that were deemed so baseless as to not merit any hearing. The financial cost to Mr. Lee for having to defend himself against those charges is a penalty that has already been imposed on him.
It is important to achieve a balance between the public interest in punishing Mr. Lee with the public interest in protecting and maintaining the right and duty of Mr. Lee and other lawyers to engage in vigorous advocacy –not circumscribed by rules of etiquette–free from interference. In Mr. Lee’s case, the public interest clearly demands that no further punishment be imposed.
COSTS
The disciplinary hearing took more than two weeks. It took a serious financial (as well as physical and emotional) toll on Mr. Lee. Considering that Mr. Lee was found guilty of only the least serious of the citations, no award of costs should be made against him. To order costs against Mr. Lee in these circumstances would have a chilling effect on the capacity and willingness of Mr. Lee and the few other lawyers willing to take on cases of the type described above against the Alberta Government.
We hope that this letter of support will assist the disciplinary panel in its deliberations.
