The Limits of Professional Regulation in Canada: Law Societies and Non-Practising Lawyers

The Canadian rules of professional conduct constrain lawyers’ speech. Among other things, the rules impose on lawyers a duty to ‘encourage public respect for and try to improve the administration of justice’. The commentary to this rule specifies that ‘a lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its real merit’. It asserts that ‘in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or criticism’. Moreover, it explains that this duty ‘is not restricted to the lawyer’s professional activities but is a general responsibility resulting from the lawyer’s position in the community’. The rules also impose a more general duty of civility. Existing jurisprudence recognises that lawyers have ‘a pivotal role in ensuring the accountability and transparency of the judiciary’, a role that will sometimes include public criticism of courts and tribunals. However, these rules against improper criticism have been determined to constitute a justifiable limitation on the constitutional right to freedom of expression contained in the Canadian Charter of Rights and Freedoms – at least when applied to practising lawyers.