As the conversation around sexual assault and how the legal system deals with it continues, a law professor at Dalhousie University’s Schulich School of Law is airing her concerns about the ethics of how many criminal defence lawyers advertise their services in that area.
“I think this is an important issue that law societies should pay attention to,” says Prof. Elaine Craig, whose research topics include sexual assault law.
“The rules don’t reflect the reality of how lawyers advertise today.”
In a forthcoming paper in the UBC Law Review, Craig raises concerns about a number of aspects of defence lawyers’ online promotion of their sexual assault services. The concerns include web sites that she says promote the acquittal of clients who appear to be factually guilty; those that imply aggressive advocacy or appear to trivialize sexual violence; advertising the use of particular trial strategies; and inaccurate or misleading accounts of the law.
The paper follows Craig’s review of the web sites of criminal defence lawyers in Toronto, Ottawa, Winnipeg, Calgary, Edmonton, Lethbridge, Alta., Vancouver, Kelowna, B.C., and Brampton and Hamilton, Ont. She performed Google searches for the terms “sexual assault lawyer” and “sex crime lawyer” for each of the cities and examined the web sites of those with top results. In compiling the paper, she looked at 40 web sites.
The thrust of her criticism relates to ethical concerns about the way many lawyers with the top Google rankings market themselves. “Unfortunately, a significant subset of the criminal defence bar advertises online in a manner that may be inconsistent with one or more of the ethical rules established by the law societies — in particular the marketing rules, the rule requiring lawyers to encourage public respect for the administration of justice and to conduct oneself in a manner that reflects favourably on the legal profession and that inspires the confidence, respect and trust of the community, the duty to maintain client confidentiality and to uphold the reputation of the legal profession, the duty of competence, the obligation to communicate in a manner that is consistent with the proper tone of a professional communication from a lawyer, and the requirement that public statements by a lawyer concerning a client’s affairs are in the best interests of the client and not for the purpose of publicity or self-promotion,” she wrote in the paper.
A big focus of the paper is on web sites that Craig found promote acquittals of those who appear to be factually guilty. One case described in the paper, R. v. L.H., came from lawyer Sean Robichaud’s web site: “All parties were drinking at a New Years Eve Party. The Complainant became intoxicated and unconscious. The Complainant’s partner and L.H. placed the Complainant in L.H.’s bed due to her intoxicated state. The Complainant became ill, thus her partner and L.H. cleaned up both the Complainant and the area where she became ill. The next morning the Complainant alleges L.H. sexually assaulted her in her sleep. DNA analysis was completed on the Complainant’s underwear and tested positive for L.H.’s DNA. Results: Jury acquitted Mr. L.H. of all charges.”
Craig then noted some of her concerns: “Individuals cannot consent to sex while unconscious. By describing this sequence of events, and then noting that the accused’s DNA was found in the complainant’s underwear but not offering any other details of the case besides the acquittal, this advertisement may leave the reader with the impression that the client was factually guilty. No other information about the case is given.”
In an interview, Craig notes the lawyers in the cases she describes aren’t invoking legal arguments such as breaches of the Charter of Rights and Freedoms as the basis for the acquittals. “They’re not invoking the Charter,” she says, adding “it’s reasonable” that someone reading the cases described would feel the lawyer got the person off despite being guilty. And in her view, while defence lawyers are providing important services in defending their clients and holding the state to account, that doesn’t necessarily extend to how they market themselves.
“The justification for vigorously defending an accused that is known to be factually guilty is that to do so preserves the integrity of the criminal justice system by ensuring fair process through partisan, adversarial roles,” she wrote in the paper.
“In the context of the culpable defendant, the defence lawyer performs a role-based public service intended to protect an important social process. The acquittal of a factually guilty accused is a byproduct of, rather than the function or objective of, this important public service. . . . The justification is role based. It does not extend beyond the
context of a particular case or proceeding and it certainly should not extend to a lawyer’s marketing strategies. Arguably, defence lawyers that advertise by promoting the fact of unexplained or inexplicable acquittals of individuals that are implied or appear to be factually guilty of harmful offences are not encouraging the public to respect the administration of justice.”
Craig also takes issue with lawyer web sites that imply aggressive advocacy in sexual assault cases, a sensitive topic in light of the current debates around the reticence of victims to report sexual assaults. In her view, implying aggressive advocacy may contravene law society rules on marketing. She noted, for example, the web site of law firm Adler Bytensky Prutschi Shikhman, which pointed out that “in many sexual assault allegations, the only evidence comes from a single complainant. It is therefore critical that your lawyer be capable of conducting a thorough and exhaustive cross-examination. Depending on a host of factors, this may call for light suggestive questioning or aggressive confrontational examination.”
According to Craig, even if lawyers have a duty to engage in aggressive cross-examination, “that shouldn’t translate into your marketing platform.”
“No one is constitutionally entitled to any defence possible,” she continues.
“Whatever we rely on as the legal profession to justify that kind of conduct, that doesn’t apply to marketing.”
For his part, Edward Prutschi, a lawyer at Adler Bytensky Prutschi Shikhman, emphasizes defence counsel’s duty to be as effective as possible. “If we don’t do that, we’re faulting our client,” he says, noting his firm adopts the style of cross-examination that’s appropriate for the circumstances. In some sexual assault cases, he says, the complainant may be honest but mistaken while in others may be deliberately lying. His firm’s lawyers adjust their strategy based on the situation at hand, according to Prutschi.
Another lawyer named in the paper who spoke on condition of anonymity says he suspects Craig’s concerns “reflect a general underlying disapproval by society . . . of the type of work that defence lawyers sometimes do.”
“Naturally, lawyers will want to advertise that they have experience in this area of the law and that they have in fact obtained favourable results for many of their former clients,” he says.
“While the author takes issue with such advertising sometimes appearing to cross the line or, at least, be in a grey area, I, for one, can say that there is certainly no intention on my part to violate any of the rules of the law society,” he adds.
Davis LLP’s Gavin MacKenzie, a lawyer who has written about ethics in the legal profession, says Craig’s paper makes a “valuable contribution to the discussion of how our profession’s rules of professional conduct and their enforcement must be continually monitored and updated to adapt to both changing public expectations and technological developments.” He says that while amendments to the rules have included commentary suggesting aggressive advertising may contravene them, “I am not sure that advertising that implies that the lawyer is aggressive should necessarily be prohibited. I read in this morning’s newspapers that our newest Supreme Court of Canada justice is known as an ‘aggressive’ litigator, and it was undoubtedly meant as a compliment. In my experience, clients involved in litigation want their lawyer to be aggressive, in the sense of assertive or vigorous, rather than in the sense of belligerent or quarrelsome. But there is a difference between being aggressive and boasting on your web site about how you have succeeded in having sexual assault charges being withdrawn by intimidating a complainant by threatening to introduce evidence that is in all likelihood inadmissible.”
MacKenzie agrees with Craig’s concern that the rules are out of date when it comes to the prevalence of online marketing versus traditional avenues like phone directories. “Web-based marketing has changed the landscape significantly as it allows for lengthy blogs, testimonials, and accounts of prior cases on which the lawyer acted,” he says. “Word counts and space limitations are a thing of the past. I agree with Prof. Craig that the regulation of commercial expression by lawyers should be reassessed in the Internet era.”
Among Craig’s other concerns are lawyer web sites she says appear to trivialize sexual violence. One web site, for example, noted a client had had a “wardrobe malfunction” that caused his “penis [to] escape.” The client, she noted, got a conditional discharge in exchange for a guilty plea.
“Advertising by lawyers that invokes outdated assumptions about sexual violence, such as the notion that sexual assault is perpetrated by lascivious men unable to control their natural sexual urges, and that refers to ‘bedding women’ in the context of a sexual assault allegation, may not be consistent with the requirement that marketing by lawyers be demonstrably true and in keeping with high standards of professionalism,” Craig wrote in summarizing her concerns.
Craig’s paper, of course, comes at a sensitive time when it comes to the issue of sexual violence, something she says “the law has played a significant role in perpetuating” the stereotypes about.
For his part, one of the lawyers whose web site is subject to the paper’s criticism says that while defence counsel do an important job in protecting the rights of their clients, Craig also has a right to air her concerns. “If the author takes offence with criminal defence lawyers doing this for a living and occasionally winning cases involving persons who appear to be morally guilty but in the end are found to be legally not guilty and then advertising that fact in order to promote themselves, then I cannot fault her or anyone who shares this belief,” he says. “After all, we are also entitled to freedom of speech.”
Craig, who emphasizes her goal was to raise the issue rather than target individual lawyers, notes several people have already removed some information from their web sites. “When you see lawyers doing that, you see it’s striking a chord with them,” she says.