by Jack Giles, QC
The question is, what is the fundamental idea that makes necessary the existence of an organized body of men and women known as “the Bar”? The answer is as simple as it is profound. If individual human freedom under law is to survive, each member of such a Bar must be kept free to truly stand in the shoes of anyone in want of access to the law and act as their “legal mind.”
There is nothing new about this idea. It is reflected by the fact that self-government has been exercised by the English Inns of Court since the middle of the fourteenth century. It has been recognized since Roman times that no one may be excused from their legal obligations by any lack of knowledge or understanding of the law – ignorantia juris neminem excusat. If this were not so, the rule of law would soon be unseated by the fact that most people do not and cannot be expected to know and understand the law. The rule of law would soon disappear if such ignorance could be a basis for escaping legal obligations. It follows that the preservation of the rule of law is not possible without an organized body of men and women who are competent to know and understand the law and available to assist anyone needing to access it. As the Supreme Court of Canada put it: “There cannot be a rule of law without access.” (BCGEU vrs AG (BC) 1988, 2SCR p214 @ 230).
While the fundamental idea is not new, the constitutional character of all its implications have only come to be fully recognized in more recent times. It is now recognized that all members of the Bar are constitutionally guaranteed the independence necessary to truly stand in the shoes of anyone in want of access to the law, and to act as their legal mind.
The public perception of this independence is as essential as its reality. It can be neither attained nor maintained unless:
- Each member of the Bar is required to afford every client undivided and non-waiveable loyalty as well as freedom from all conflicting interests, and;
- There is a guarantee of permanent confidentiality covering everything the lawyer learns about a client or potential client (whether privileged from admissibility in evidence or not) without which the necessary disclosures to the lawyer would and could not take place.
Anything less than independence of this character would mean that fair and effective access by every member of the community, not only to courts of justice, but also to the whole world of law, would not be available. In consequence, the rule of law would be displaced by a rule not of law, the proper administration of justice defeated, and a free and democratic society under law impossible to maintain. John Locke put it in five words: “Where law ends, tyranny begins.”
For these reasons no consideration should ever be given to the scope of questions having to do with lawyers’ independence, conflicts of interest, loyalty, and confidentiality in isolation from each other, and most importantly in isolation from the fundamental idea that gives rise to their constitutional character. In particular, recent well-intentioned suggestions that the necessary constitutional requirements respecting lawyers’ obligations to be free from conflicting interests be modified because they are too great a “burden,” or “out of step with modern practise” are hopelessly irreconcilable with the constitutional guarantee of an independent Bar necessitated by the fundamental idea.
Jack Giles, QC (retired) has been a member of the CBA (now honorary) since 1958. He has been much involved in the fight to protect the independence of the Bar.
This article was published in the June 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.