Supreme Court this morning: "lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained ...to do so with dignified restraint"

Doré v. Barreau du Québec 2012 SCC 12 deals with the right of lawyers to express themselves freely but their duty to use that right of expression in a professional manner. 

A lawyer was strongly, and perhaps ill-advisedly, criticized by a judge.  The lawyer then wrote a private letter to the judge calling him loathsome, arrogant and fundamentally unjust, and accusing him of hiding behind his status like a coward, of having a chronic inability to master any social skills, of being pedantic, aggressive and petty, and of having a propensity to use his court to launch ugly, vulgar and mean personal attacks.  As a result the lawyer was reprimanded by the Barreau du Québec.

The Court upheld the reprimand saying the lawyer was entitled to write to the judge but his letter was unprofessional and went beyond that which is proper.  Specifically, a reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system.  Such criticism, even when it is expressed vigorously, can be constructive.  However in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism.  The lawyer’s displeasure with the judge was justifiable, but the extent of the response was not.

To this writer’s mind the decision of the Court is proper.  The letter to the judge was unprofessional – all the points made could have been made in far more temperate language and they should have been so made.

The Court writes:

[68]                          Lawyers potentially face criticisms and pressures on a daily basis.  They are expected by the public, on whose behalf they serve, to endure them with civility and dignity.  This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case.  But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility.  On the other hand, lawyers should not be expected to behave like verbal eunuchs.  They not only have a right to speak their minds freely, they arguably have a duty to do so.  But they are constrained by their profession to do so with dignified restraint.

[69]                          A reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system.  As discussed, such criticism, even when it is expressed robustly, can be constructive.  However in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism.  As the Disciplinary Council found, Mr. Doré’s letter was outside those expectations. His displeasure with Justice Boilard was justifiable, but the extent of the response was not.