March 2008 Archives
Sunday night, 60 Minutes aired a report on an innocent man who was in jail for 26-years while two lawyers refused to disclose evidence that he was innocent. (Read it here.) The general theory of the story was that the lawyers should have said something, but "felt they had no choice". Unfortunately, the story did not properly explain why the lawyers had no choice.
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A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.
If you follow this link to Rule 2, you can find an official commentary by scrolling down. The basic idea is that clients need to be able to trust their lawyers. If a client has to worry that admitting guilt to a lawyer will result in the lawyer telling the police, then clients will withhold such evidence and lawyers will not be able to do their jobs properly.
Some might argue that would be a good thing. Why should guilty people be protected from the truth? For one thing, you have to consider that if you change the rule, then clients will no longer tell their lawyers the truth. As a result, the truth will still remain hidden. The only difference would be that lawyers might go to court believing their clients to be innocent when they are not really innocent. Some guilty people will benefit from that while others will not. Ultimately, we are unlikely to have any more "truth" in the system.
However, if you get beyond theory and consider the specifics of this case, you have to wonder why an innocent man should lose 26-years of his life for a matter of legal principle. Our system is based on the theory that we would rather let 10 guilty people go free than jail one innocent person; we do not believe that we should let 10 guilty people go free and jail one innocent person.
At the same time, you have to wonder what value there would be to the lawyers disclosing the confession. Perhaps their client was just boasting and did not actually do it. Perhaps he was hoping to get a deal for telling the truth. Perhaps he was friends with the accused man and wanted to help him. That is unlikely since the man did not allow his lawyers to disclose the confession, but if they had disclosed it 26-years ago then those sorts of theories would have been considered in weighing the evidence. Ultimately, the lawyers would have discredited their own ability to maintain the confidence of their clients while gaining little for the innocent man.
Many people do not understand the ethical obligation of lawyers. Our job is to represent our clients to the best of our ability and allow the court system to decide guilt and innocence. We have this obligation because our society believes that individuals have the right to defend themselves to the best of their ability. When an innocent man goes to jail because two lawyers did not disclose confidential evidence, you should not blame the lawyers. Instead, you should look at the rules that govern the lawyers and decide whether they are justified.
Facebook has become the new email. Not quite everybody has it, but we all know what it is and we feel like we should have it. For the first time in human history, we can create real communities that bear no relation to location, yet operate in real time. If you fail to adapt, then you will fall behind.
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This raises a number of legal issues. Is the Facebook group any different than in-person study groups? Would the university punish smaller study groups in a similar manner if it were as easy to find them? Would it be relevant if the group was a secret group? Can you hold the administrator of the Facebook group responsible, when over 140 students were using the group? Did any member of the University administration, or a teaching assistant, know the group existed?
The matter is still part of the internal disciplinary process in Ryerson. Even if Ryerson ultimately punishes their student, other universities can make completely different decisions. Universities each have the right to form their own disciplinary policies. For example, the
If the Ryerson student is unhappy with the end result, he can try to appeal to the courts. However, he can only appeal the process itself. Did he break a rule that was known or knowable to him? Did he and Ryerson follow the official disciplinary process? Did he see the entire process through to the end before appealing to the courts? However, this appeal to the courts is not often successful. There is even a good argument that the courts have no jurisdiction to review internal disciplinary proceedings in the first place.
In that case, perhaps the student would want to sue the University for breach of contract. Presumably he paid his tuition and has decent marks. If the University expels him, he could argue that they had no right under their contract for an education. If successful, the student's damages might include his costs of education up to this point, time lost studying for a degree that would be denied him for indefensible reasons, perhaps even lost opportunity if he turned down other universities when he began his studies.
Students need to be careful to comply with disciplinary policies while using Facebook. We are now growing up with this powerful technology and it is starting to become second habit to treat Facebook like a private conversation among many people. However, we need to remember that we should never put anything in writing - even online - unless we are prepared to see it in the newspaper the next day.
In turn, Universities need to recognize this new reality and adapt their policies to allow for the new technologies. Some will choose to allow more information sharing. Others will specify in their rules what can and cannot be done online. Whatever direction the universities take, they are quickly being pulled into the new legal world of the Internet by their tech savvy students.
On Monday, March 3, Prime Minister Stephen Harper sent the leader of the opposition, Stéphane Dion, a "libel notice". (Story here) (Libel notice here [PDF])
Libel is when one person, a publisher, damages the reputation of another person, the complainant, in a newspaper or a "broadcast". Broadcasts include television, radio and Internet.
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This is an important stage in any claim for libel, because it gives both parties a chance to come to a settlement. Once a publisher receives a libel notice, that person can immediately publish a retraction. Online, the publisher can even amend the original comment or delete it all together. This helps both parties, because it minimizes the damage to the complainant's reputation and minimizes the damages that the publisher might have to pay if the complaint is valid.
The libel notice also gives some advantage to the publisher. If the publisher is convinced that there was no libel, then the publisher can report on the threat of a lawsuit. In some cases, this can make the complainant seem like he or she has something to hide. In other cases, the increased rhetoric may force the complainant to drop the matter so that the libel lawsuit does not spread the story even further.
In Stephen Harper's case, it probably made sense to send libel notice immediately if he truly believes that he was libelled. This is because the attacks of the Official Opposition are unlikely to go unreported. Mr. Harper had to attempt to protect his reputation as soon as possible.
However, in many cases people believe that they have been libelled by bloggers. If nobody has read the blogger's website, then it might not be worth sending a libel notice. As soon as the blogger publishes the notice, it becomes much more likely for media to pick up on the story. In such cases, the complainant must consider very carefully whether it is worth the risk of sending a libel notice. Normally, it will make more sense to phone the person first and ask for a retraction before sending anything official.
