Friday, July 25, 2014

Lawyers warned against saying "Fuck you!" in courthouse

"A lawyer and a gentleman" -- Is it possible for one man [or woman? Ed.] to be both? The Law Society of British Columbia apparently thinks it is not only possible but mandatory. In a ruling issued last February concerning one Martin Drew Johnson, a disciplinary panel opined that "a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, avoid even the appearance of impropriety, and uphold the standards and reputation of the legal profession".

Agent 3, who brings this matter to our attention, feels that the LSBC may have overestimated the "reputation of the legal profession". Do we really believe, he asks, that lawyers are courteous to the point of saintliness, to the point of turning other cheek when provoked by judges, witnesses, or -- heaven help us -- agents of Her Majesty?

Turning the other cheek, it seems, is what Martin Johnson failed to do, thus "letting down the side" in the minds of his gentlemanly colleagues. Back in March of 2011, Mr. Johnson, a veteran criminal defence lawyer, was at the Kelowna BC courthouse representing a man accused of assaulting his wife. During a break in the proceedings, he asked the investigating Mountie if his client could be escorted back to the family home to retrieve a few personal items. A not unreasonable request, but the police mentality is such that whatever the defence asks, they refuse, and that's what "Officer B" did.

Before long, the two men were having a shouting match in a courthouse corridor. It was then that Mr. Johnson dropped the F-bomb. "Fuck you," he yelled at the copper.
"You don’t scare me, you big-shot lawyer," replied the Mountie. "[Saying 'Fuck you!' is] assaulting a police officer!" Mere moments later, Mr. Johnson found himself being "escorted" -- "paraded" was the word his lawyer used -- down the hallway like a common criminal.

Of course no charges -- of assaulting a peace officer or anything else -- were ever laid. Instead, Mr. Johnson found himself accused of professional misconduct, the respondent in a disciplinary hearing before a panel of the Law Society. The nub of the case is a question every courtroom lawyer must wrestle with at some point in his/her career: Is it ever excusable for counsel to curse on the job? In other words, does hurling a profanity always constitute professional misconduct, or are there circumstances in which a lawyer can be so provoked that blurting out a "Fuck you!" or other dire imprecation can be forgiven?

At least, that's how Mr. Johnson's counsel saw it. Agent 3 would concur. But the blue-stockings at the LSBC disagreed. Two of the three panel members said the only issue to be determined is whether or not the use of "Fuck you!" as an insulting interjection, spoken in anger to a witness in a courtroom hallway, constituted professional misconduct. Provocation, they said, was not an issue. Whether anything the sacrosanct police might do could push a lawyer to the breaking point, they said, was irrelevant.

So Mr. Johnson was found guilty as charged. The LSBC is still thinking about an appropriate sanction. Perhaps they will order him to write "I will not say 'Fuck you!' to police officers" 1000 times on the blackboard.

That concludes our report except for one very important thing. The majority decision of the panel contains, at Paragraph 8, an interesting disquisition on the use of the word "fuck" in contemporary society. Although they expect lawyers to be too good and proper to let the F-word cross their lips (in the courthouse, at least), the panel did acknowledge the widespread and unremarkable use of the word in the discourse of the rest of us mere mortals. Here's what they said.

Obviously, we recognize that the use of the word “fuck” in its various word combinations and permutations isn’t as taboo as it used to be. For good or for bad, it is not uncommon to hear the word in its various forms on television or in the movies. Despite the argument that it is still “profane”, we all know it is used in everyday conversation harmlessly and innocuously, although one probably would not use it with one’s mother or with small children in the room.

It is used in humour, literature and music. It is used when one stubs one’s toe, falls down skiing, makes a mistake, or even as a form of self-deprecation. It is used by athletes in sports, and by disappointed or excitable fans. It has been used by presidents, prime ministers, Nobel laureates and Academy Award winners. Its use is not going away, and nor should it. Consequently, we wish to make it clear that our decision is not meant to deny the use of a word in the English language that people may hear or use all the time, or otherwise interfere with one’s freedom of speech.

Rather, we wish to make it clear to members of the profession, that insults or profanity, if uttered in anger (whether using the f-word or not), directed to a witness, another lawyer, or member of the public in the circumstances and the place in which it was used by the Respondent, are not acceptable and can constitute professional misconduct.

What was it Shakespeare said about the law? Oh yeah...

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