Mayor clears space for lawyers
A three-member panel of the Nova Scotia Barristers’ Society decided to have it both ways when it rendered decision this week in the professional disciplinary case against lawyer John Morgan, mayor of the Cape Breton Regional Municipality. The panel got its licks in, declaring that remarks Morgan had made in a radio interview in April 2008 about Nova Scotia’s justice system and senior judiciary were inappropriate and even offensive, but then absolving him of professional misconduct.
In his initial reaction to the Cape Breton Post, Morgan declined to comment directly on the ruling, suggesting that he didn’t want to “get exposed to additional complaint filings from political opponents.” Here and in a subsequent interview he suggested that even though he technically won, the experience could have a chilling effect on the freedom of speech of politicians who are lawyers.
The panel had no trouble finding that Morgan’s radio comments were out of bounds when considered as the words of a certified lawyer. The panel noted in particular that his comments on Justice John Murphy’s decision throwing out the Cape Breton Regional Municipality’s constitutional case against the province were “intemperate unsupported allegations and ... contrary to a lawyer’s duty to encourage public respect for justice and to uphold and try to improve the administration of justice.” In the interview, Morgan had included Murphy as “part of the political structures that are endemic in the province of Nova Scotia.”
The escape hatch for Morgan, and one could say for the society as well, is the panel’s acceptance of his argument that the conservative professional guidelines on how lawyers must speak of courts and judges didn’t apply here because he was speaking as a mayor and not a lawyer. This is a common sense finding that most people likely approve, however much they take issue with what he said.
However, this outcome upsets an assumption many lawyers had held that professional ethical guidelines, including the requirement that comments about the justice system be temperate and respectful, applied both on and off the field. Back in November, barristers’ society executive director Darryl Pink, one of Nova Scotia’s leading lawyers, declared that “a lawyer cannot hide behind the fact that he or she is speaking in some other capacity if he breaches the rules that govern all lawyers.” Clarence Beckett, counsel for the society, put that position as strongly as he could in Morgan’s disciplinary hearing.
But if this was true before, it isn’t now. The decision implies that a lawyer can remove his lawyer’s hat and speak in another capacity, as a political leader or indeed a private citizen, and be guided only by the far more expansive constraints defining contempt of court or slander.
Chilling effect? Hardly. The Morgan case appears to establish new speech freedom for lawyers speaking outside their professional capacity. Call it Morgan’s revenge.