Lawyers and the Rule of Law: Independence of the Bar, the Canadian Constitution and the Law Governing Lawyers

Abstract

This paper analyzes independence of the bar as a constitutional principle. It argues that Canadian law does not generally demonstrate strong judicial support for the constitutional status of independence of the bar. This paper also argues, however, that constitutional protection of the rule of law mandates judicial recognition of independence of the bar. Drawing from Jeremy Waldron’s work on the rule of law, it suggests that independence of the bar, when defined as the citizenry’s access to independent advocacy, advice and arguments from lawyers, is essential to accomplishment of the rule of law. The paper then uses that definition of independence of the bar, and the animating concept of the rule of law, to assess the approach to the role of the lawyer in Canadian law. It argues that independence of the bar warrants constitutional protection and that state interference with the lawyer-client relationship is only warranted where it ensures that lawyer advocacy or advice respects legal boundaries, where it furthers other rule of law values or, in exceptional cases, to protect other overriding moral or substantive legal norms. Ultimately, however, the paper sounds a cautionary note about relying on judicial enforcement of constitutional principles for sustaining lawyer independence. Every entity charged with regulating lawyer conduct, including individual lawyers as well as law societies and courts, bears responsibility for ensuring that the citizenry has the access to the advocacy and advice of lawyers on which the accomplishment of the rule of law depends.