Mayor clears space for lawyers

Cape Breton Post - - COMMENT -

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.

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