“A lawyer must encourage public respect for and try to improve the administration of justice.”[1]
This is a rule from the Model Code of the Federation of Law Societies of Canada. The commentaries to the rule identify a more specific component duty to defend judges and other tribunal members from “unjust criticism”, because there is no way for them to appropriately defend themselves.[2] But the rule would also apply to unjust criticism of lawyers, especially those who, like judges, cannot defend themselves, particularly Crown attorneys.
This rule may appear to be aspirational. Indeed, Harry Arthurs has characterized this rule as, among other things, “meant not to control lawyers’ behaviour but to offer symbolic reassurance to the public.”[3] This rule also illustrates my discomfort with aspirational rules as essentially an oxymoron. Aspirations have their place, as do rules, but it seems problematic to mix them together and not clearly indicate which is which. In reality, at least as enforcement goes, this particular rule appears to be more of a negative duty than a positive duty – a duty to not discourage respect for the administration of justice, as opposed to a duty to encourage that respect. Nonetheless the longstanding language ostensibly imposes a positive duty.[4]
While most lawyers have ample opportunity to discourage respect for the administration of justice, few have a meaningful opportunity to actively encourage that respect. For most lawyers, this rule might manifest merely in helping clients or victims understand why judges or other lawyers do the things they do. High profile lawyers might have the opportunity to catch media attention. Consider here lawyers in private practice who can attract media attention like the late Eddie Greenspan, or lawyers with famous or infamous clients, or Attorneys General. Moreover, this is one way that non-practicing lawyers with high profiles – be they politicians, political commentators, business leaders – can play a special role in fulfilling the obligations of the profession.
For these high-profile folks, and all the more so the rest of us, I appreciate that these efforts may seem futile: because the media may not care, or because the public perception of the administration of justice has been so aggressively warped by politicians, but also because those stereotypes are so embedded in the echo chambers of modern public discourse that it seems nothing an individual lawyer could do would change anything. And any noble efforts might attract scorn or abuse or even threats to a lawyer’s personal safety. It is easy and understandable to despair.
On the other hand, sometimes duties are hard. That difficulty does not mean that the rule can or should be ignored or repealed. Status as a lawyer comes with serious obligations, and the mere fact that they seem pointless or futile should not, in itself, be a complete answer.[5]
For these reasons, the rule is best fulfilled through collective action, i.e. by advocacy organizations like the Canadian Bar Association and its branches, or the Advocates’ Society.[6] They have the media savvy and the profile to make their comments heard. (Although I’m quite idealistic and would love to see the law societies become involved, I understand the principled reticence as regulators.) Much less obviously, sometimes the most needed and powerful such efforts come from the associations of Crown attorneys or government lawyers that represent them in collective bargaining with their employers. Consider here the recent statement by the Ontario Crown Attorneys’ Association responding to politicians and others accusing the Crown attorneys involved in the sentencing of freedom convoy participants of carrying out a political vendetta.[7] This collective action is an effective, and most likely sufficient, way for lawyers to fulfill this individual obligation.
We – in the profession, the academy, the media, and the general public – should rightly expect the leaders of the profession to fulfill this duty and hold them accountable for their shortcomings. Most of all, we should rightly expect Attorneys General to fulfill this duty when the Premier or other members of Cabinet unjustly attack judges, prosecutors, lawyers, or the justice system.[8] Indeed, perhaps the greatest shame for an Attorney General comes when they remain silent in such a situation and judges are left to defend the administration of justice themselves.[9] It is similarly shameful when employee organizations are left to defend their members themselves. The failure of Attorneys General to fulfill the various forms of this duty makes it even more important for lawyers to do so through collective action.
The justice system and the lawyers and judges within that system are certainly not beyond criticism.[10] But lawyers are well-placed to help the public understand what constitutes inappropriate criticism and why, as well as helping them to understand why judges, Crown attorneys, and government lawyers cannot defend themselves publicly. They can also understand the laws and constraints that guide such judges and lawyers in carrying out their duties.
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[1] Federation of Law Societies of Canada, Model Code of Professional Conduct (Ottawa: FLSC, 2009, last amended April 2024) [FLSC Mode Code], r 5.6-1, online: <https://flsc.ca/wp-content/uploads/2024/11/2024-Model-Code-of-Professional-Conduct.pdf>: “A lawyer must encourage public respect for and try to improve the administration of justice.”
[2] Ibid, r 5.6-1, commentary 3: “[W]hen a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal, both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater public understanding of, and therefore respect for, the legal system.”
[3] Harry Arthurs, “Why Canadian Law Schools Do Not Teach Legal Ethics” in Kim Economides, ed, Ethical Challenges to Legal Education and Conduct (Oxford: Hart, 1998) 105 at 114, as discussed e.g. in Andrew Flavelle Martin, Legal Ethics and the Attorney General: A Canadian Analysis (Toronto: University of Toronto Press, 2025) at 28.
[4] See e.g. Law Society of Alberta v Rauf, 2018 ABLS 13 at para 115 , aff’d on appeal 2021 ABLS 3: “[t]he obligation to so encourage public respect is a positive obligation of membership in the [law society]”, as quoted in Andrew Flavele Martin, “The Lawyer’s Professional Duty to Encourage Respect for – And to Improve – the Administration of Justice: Lessons from Failures by Attorneys General” (2023) 54:2 Ottawa Law Review 247 at 268, note 70.
[5] See FLSC Model Code, supra note 1, r 5.6-1, commentary 1, which reads in part: “A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements.”
[6] See e.g. statements on judicial independence by the Advocates’ Society, online: <https://www.advocates.ca/TAS/TAS/Advocacy_Pages/Judicial_Independence.aspx>.
[7] Donna Kelway, President, Ontario Crown Attorneys’ Association, “Open Letter: Prosecutorial Independence and the Rule of Law” (29 July 2025), online: < https://www.ocaa.ca/prosecutorial-independence-and-the-rule-of-law/> perma.cc/TZ8U-MD48
[8] Andrew Flavelle Martin, “The Attorney General and the Duty to Encourage Respect for the Administration of Justice” (27 May 2025), Slaw (blog), online: <https://www.slaw.ca/2025/05/27/the-attorney-general-and-the-duty-to-encourage-respect-for-the-administration-of-justice/>. See also Martin, Legal Ethics, supra note 3 at 49-57.
[9] See e.g. Michael H Tulloch, Chief Justice of Ontario, Court of Appeal for Ontario; Geoffrey Morawetz, Chief Justice Superior Court of Justice; & Sharon Nicklas, Chief Justice, Ontario Court of Justice, “Public Statement by Ontario’s three Chief Justices regarding Judicial Independence” (30 April 2025), online: <https://www.ontariocourts.ca/coa/public-statement-by-ontarios-three-chief-justices-regarding-judicial-independence-april-30-2025/> perma.cc/TPC4-6MVD.
[10] FLSC Model Code, supra note 1, r 5.6-1, commentary 3, which reads in part: “Proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers.”
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