Not Everyone’s Lawyer?


Not Everyone’s Lawyer?

Should law societies impose gender or age-based restrictions on a lawyer’s practice? Stated otherwise, is it appropriate to permit a lawyer to continue to practice on conditions that restrict their interaction with women (or men) or minors? For the reasons that follow, I believe that the answer to both of these questions is “no”.

The issue of practice restrictions of this sort first caught my attention several years ago when a Connecticut lawyer received a lifetime ban on representing women. This lawyer had been the subject of multiple misconduct allegations by female clients which included accusations of unwanted sexual advances and offering to waive fees in exchange for massages.

Around the same time, the College of Physicians and Surgeons was under scrutiny for permitting doctors who were accused or found guilty of sexual abuse to continue practicing under a condition that they not treat patients of the same gender as their past victim(s), or do so only with supervision. In 2014, the Toronto Star reported that there were 21 doctors in Ontario who were practicing subject to gender-based restrictions, 20 of whom were male doctors restricted from treating female patients (the remaining one was a male doctor restricted from seeing male patients) (see here, here and here for some of the Star’s coverage). One of the Star’s articles discussed an Ontario pediatrician who was subject to both gender-based restrictions (i.e. “hav[ing] a female health professional with him if he is interacting with female patients or female caregivers of patients”) and age-based restrictions (“restrict[ed]… from treating anyone over the age of 18”). In 2017, legislation was passed to prevent colleges that regulate health professions in Ontario from imposing gender-based restrictions. This reform was part of a broader package of measures aimed at “strengthen[ing] the prevention of, and response to, incidents of patient sexual abuse, increas[ing] supports for victims of sexual abuse by regulated health professionals and improv[ing] regulatory oversight and accountability of health regulatory colleges.”

More recently, my interest in this issue as it relates to lawyers was revived as a result of two cases. Earlier this year, an Ontario lawyer was found to have engaged “in conduct unbecoming a lawyer licensee by committing the criminal offences of possession of child pornography and accessing child pornography” and suspended from practice until March 1, 2023. If and when he returns to practice, he will be subject to several conditions including being “restricted from representing or appearing on behalf of any person under the age of 16 years old.” Last year, a Manitoba lawyer entered that “he will not contact [without prior written authorization from the Law Society] any woman who is a member of the [Manitoba Law] Society, a legal assistant or an employee of the courts, Manitoba Justice, Justice Canada or Legal Aid Manitoba…by FaceTime, text, email or other direct messaging or video communications application, for any reason that is not strictly about a work-related matter.” The circumstances prompting this undertaking are not public, although the Law Society of Manitoba has said that, in the context of an investigation into the lawyer’s conduct, “it was determined that it would be in the public interest to impose restrictions upon his practice.”

The imposition of gender or age-based restrictions on Canadian lawyers does not appear common. However, the two recent examples discussed in the above paragraph reveal that such restrictions do, in fact, occur on occasion.

The main motivation of gender or age-based restrictions appears to be risk reduction: because of alleged or past proven behaviour, a professional is deemed to be at risk of harming a certain group of people and, as such, the regulator is only comfortable allowing them to practice if they are prevented from engaging with that particular group (or otherwise have their engagement with that group restricted). The underlying goal seems to be to finding a way for the professional to maintain a law practice in a manner consistent with the public interest.

There are legitimate empirical questions to be asked as to whether gender or age-based restrictions are effective as risk-reducing measures. The Connecticut lawyer mentioned above had been previously subject to a court order banning him from representing women in family law or domestic violence cases. He was accused of violating that order in the context of receiving his lifetime ban (see here for more details). A November 2014 Toronto Star article reported that an Ontario doctor who was “under investigation for sexual misconduct had his licence suspended…after allegedly continuing to treat female patients while prohibited from doing so.”

Even assuming, however, that gender or age-based restrictions can be generally effective in preventing future specific acts of harm, there are additional public interest dimensions to be considered. Because age-based and gender-based restrictions target particular groups of individuals on the basis of their characteristics – characteristics that are prohibited grounds of discrimination – this type of restriction is fundamentally different than other, more common types of restrictions placed on lawyers, like prohibitions from practicing in certain areas (e.g. real estate) or requirements that lawyers generally practice under some sort of supervision.

Given our social and legal commitments to provide individuals with equal access to services without discrimination, it seems problematic for law societies to be in the business of licensing, for example, “adult only” lawyers. It is true that those who are denied service because of gender or age-based restrictions will most likely be able to find alternative representation. But what does it mean for the dignity interests of women or youth when law societies issue orders premised on the notion that their right to equal access to legal services is less important than allowing a lawyer who might harm them to continue to practice? The common refrain that being a lawyer is a privilege and not a right, comes to mind. While, in the criminal context, court orders that restrict access or contact with a particular group are regularly imposed (for example, prohibitions on contact with anyone under the age of 16), the decision-making matrix is completely different here: the harm in having one’s liberty deprived is (obviously!) not the same as harm arising from not being able to practice law.

If a lawyer poses a real risk of engaging in sexual abuse or harassment—a risk so concerning that the regulator believes that the lawyer needs formal restrictions from engaging with women or children—perhaps they should not be able to practice law at all? Shouldn’t the ability to refrain from sexual abuse or harassment be an essential pre-condition to practicing law in any capacity? In response to gender-based restrictions on doctors, one expert stated “[t]he single most important asset which a physician has is trust…Anything that a physician does that violates that bond of trust is potentially devastating for the practice of medicine.” Is not the same true of lawyers? Maintaining a high level of public confidence in lawyers seems inconsistent with allowing lawyers to practice under gender or age-based restrictions. Commentary in the professional conduct rules states “[i]f a client has any doubt about his or her lawyer’s trustworthiness, the essential element in the true lawyer-client relationship will be missing” (Model Code, rule 2.1-1, Commentary [1]).

My proposal is a simple one: if a law society decides that a lawyer poses a continuing and concerning risk to members of group defined by characteristics protected by human rights legislation, then this lawyer should not be permitted to practice. The risk should not be addressed by saying that the lawyer can practice under restrictions in relation to that group. This is not to say that any past misconduct (or allegations thereof) should be disqualifying in relation to the practice of law. The relevant question is how to deal with a lawyer that poses some ongoing risk. If the lawyer in question does not pose a risk to members of the public, then gender or age-based restrictions would appear to be regulatory over-reach and unnecessarily stigmatizing.

All this hinges, of course, on the ability of law societies to adequately determine and assess risk. But, surely, engaging in risk assessments in relation to lawyers’ practice is a fundamental mandate of law societies, given that law societies are in the business of assessing suitability for practice. If law societies are uncertain about their ability to adequately evaluate risks, they should take the necessary steps to become more capable and confident in this area. Resorting to gender or age-based restrictions is not an appropriate policy response.


Tags: Law, Star, Connecticut, Facetime, Legal Ethics, Ontario, Manitoba, Toronto Star, Law Society of Manitoba, College of Physicians, Legal Aid Manitoba, Manitoba Law, Manitoba Justice Justice Canada

Source:  http://www.slaw.ca/2021/02/23/not-everyones-lawyer/



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