Duty to Represent?

Law is Cool just posted a blog entry about the lawyers' duty to represent even the unpleasant client.

Imagine two potential civil litigation clients. Both present you with problems well within your expertise and both satisfy your financial retainer requirements. Neither ask you to do anything unethical or underhanded.

The first is a quiet, respectful person who appreciates the limits of the law and wants you to pursue a clearly valid claim. The other is an unpleasant, extreme individual with a warped view of justice and a claim that is marginal.

You explain the law to both clients together with the likely results of litigation. Both ask you to go ahead and issue a claim. What do you do?

Prof Morton argues that lawyers have a duty to represent every client, even those who are unpleasant, as every person is entitled to justice. It is hard to find anything to say against that.

However, I can't say I completely agree with what is being argued in the article. My first reaction is that lawyers are the providers of a service, and as such, should have the freedom to chose who they want to do business with.

On the other hand, the right to justice is one of the most fundamental rights, and everyone should have access to a lawyer to defend these rights. It is very easy to make a parallel between lawyer and doctors, and the natural question to ask is "Should a doctor be allowed to pick and choose his patients, then?" Let's leave this topic for a potential later post, as it is not an easy comparison to make, and besides, it's not particularly relevant for our present purpose.

I think the main problem I have with this is not only with this idea of having a duty to represent someone, but also with the way the problem has been presented.

First off, this idea of duty seems rather strange to me. I understand that a lawyer might have a duty to defend the best interests of his clients, and do so to the best of his abilities. However, I can't really agree with having a duty to take a case just because someone wants you to. I don't think that just because you agree to meet with someone to discuss their case makes makes you obligated to defend them. In short, I don't want to be stuck with such a duty just because someone comes for a consultation.

Then, there's a problem with the way the situation is being presented. See, there are 2 clients: the good one, and the bad one. The Good Client, Good Case, vs the Bad Client, Bad Case. What about the 2 middle ones? What about the Good Client, Bad Case, and the Bad Client, Good Case? Certainly, the goodness of a case is independent from the pleasantness of the client.

However, from the way the question is asked, there is no distinction between a bad client, and a bad case. Such a confusion does little to help solve the ethical problem at hand.

If a client has a bad case, the normal reaction of any lawyer would be to advise him/her against going to court. This has nothing to do with how likeable the client is. But what if the client insists? The above article seems to say that lawyers (at least in Ontario), due to their oath to "neglect no one’s interest and [...] faithfully serve and diligently represent the best interests of [their] client," have a duty to launch a lawsuit and go to court should the client so demand.

I beg to differ. I think that "faithfully serve and diligently represent the best interest of the client" does not equal going to court whenever the client wants to. Indeed, if, as a lawyer, I consider going to court to be against the best interests of the client, either due to the high costs involved, or to any number of valid reasons, then it seems to me that it would be against professional ethics to launch the lawsuit. If I know that a case seems desperate, and that the client is likely to invest a huge amount of time, effort, and money into a lawsuit that s/he will very likely not win, then I would certainly think that it is not in my client's best interest to pursue the matter. If I pledge to serve my client's "best interests", then I don't see how I would have a duty to sue whenever the client asks me to.

This is certainly what happens when a client arrives with a bad case, be it a pleasant client, or an unpleasant one. Correlating bad client and bad case is just oversimplifying the issue. At worst, it is intellectually dishonest, because you then don't separate the consequences of having a bad case, with those of being an unpleasant client, and act as though lawyers who refuse bad cases do so because the clients are unpleasant.

[tbc...]

Small Claims this week...

St-Pierre v. City of Pohénégamook
from Jugements.qc.ca

First off, yes, it's an actual place, and no, I don't know how to say it either.
For some reason, I seem to be developing a fondness for litigation involving municipalities.

The plaintiff is asking for $6000 worth of damages.

The dispute: August 2008, lots of rain. Inadequate drainage duct contributed to the overflowing of water. The water crossed the road and caused damages to the plaintiff's property.

The water picked itself up, and went "F*** this, I'm crossing the road". Why did the water cross the road? Well, apparently, it seemed to have malicious intentions towards the plaintiff's basement.

The defendant contests, because they weren't expecting that shitload of water to fall on their heads on August 2nd and 3rd.

Proof shows that the City has installed a drainage duct, which had a right-angle bend. The diameter was insufficient. There was an overflow, which damaged the plaintiff's property.

According to the plaintiff, the City was at fault by installing and maintaining the ducts. Moreover, the diameter was inadequate, and the overflow stopped as soon as the duct was removed.

After the events, the City conducted some major work in that area, and rearranged the draining system.

The City argued that the amount of rain received on August 2nd was exceptional (89 mm, vs 33 and 25 for the day before and after). On Aug 2nd and 3rd, the storm drains on Rue Principale overflowed. These drains belong to the Ministry of Transports. The other streets (Pignon and St-Laurent) belong to the City.

Proof has shown that the City has had problems with the drains before, and has replaced some with wider-diameter ones on certain streets. The City knew that the ducts had to be replaced.

JUDGE'S ANALYSIS
Water that caused the damage came from higher grounds, which belongs to the City.
The duct was the cause of the water overflow, which caused damage to the plaintiff's property.

Proof shows that the formation of blockages was highly predictable. The City knew that the diameter was not wide enough.

When a municipality executes work on streets or trenches, they must avoid modification of the natural water flow, or plan an effective drainage system for the water in order to avoid floods.

The defendant has not taken reasonable measures to avoid floods. The City has not acted with prudence and diligence.

The Defendant claims Force Majeure (ss 1470 CCQ), because of the truckload of rain they received. However courts have established that rain, even by the truckload, did not constitute force majeure.

So the lesson is: you should always provide for the deluge.

What happens in the Metro...

I guess I haven't really been following the news lately, because I totally missed what is probably the biggest controversy of the week, namely, the lady getting fined for not holding the handrail in the metro.

My initial reaction upon reading the headlines ("Woman fined for not holding handrail" and the like) was, of course, What The Fuck. But upon reading the article, I have to say that I really can't see anything wrong with what the police did, and I don't particularly sympathize with the lady.

First off, she wasn't only "fined for not holding handrail". Sure, she was. But in my opinion, that fine is only incidental to the real issue, which was obstructing police, for which she got a $320 fine. People shouldn't focus on the handrail, and demonize the police officers because of that. For instance, if the police stops you for a broken headlight, and you assault the police officer because of that, I don't think it would be quite fair to report "Man arrested for broken headlight".

Then, people say that it's stupid to fine people for such a trifle, and the police should have left her off with a warning. However, according to the police, they did warn her multiple times, and he refused to comply. After which they ticketed her. What's a "warning"? No warning would be "Miss, you were not holding the handrail, here's a $100 fine." A warning is: "Miss, you should hold the handrail, please hold the handrail." Or, if you really wanna be thorough with it: "Miss, the law says you have to hold the handrail. You are not holding the handrail. Please hold the handrail (NOW) or you'll get a fine." Here's your warning. So I would say that if you don't start holding that handrail within a reasonably short time, you've had your warning and are eligible for a fine.

Many argue that the police shouldn't be telling people how to ride an escalator. Besides, nobody has ever been fined for not holding the handrail before, so this instance is definitely abusive, right? WRONG. Just because nobody every had doesn't mean nobody ever should be fined, or that it's legally OK not to hold the handrail.

Should she be fined, though? Maybe. I'm not opposed to the fine, and I certainly don't see anything wrong with the fine, given the circumstances.

What circumstances?

Obstructing police work. She yelled at them when they told her to hold the rail.

She says she didn't.

For some reason, I'm not tempted to believe that. Given the facts, I think it's reasonable to say that the police's version is more believable, and that she did obstruct the police in some way.

The only facts we have are these: she was fined for not holding the handrail, and obstruction. She was handcuffed and held in detention.

1. the police was either warning a lot of people, or only picked on her. I find the first case more believable. I don't see any reason the police would pick on her, of all people there.

2. Assuming the police was warning a lot of people, why was she the only one with a fine? Either they picked on her, or she did something to warrant it. Given that she was detained, I'd say she did something. The other option is that police has cuffed her though she didn't do anything. Why would they do that? I don't find this very likely.

So she did something. What did she do?

1. She refused to comply, and
2. Police say she started screaming at them.

Assuming both are true. Should the police have cuffed/arrested her?

(TBC)

In small claims court...

Ever since I went to visit the Small Claims Court back in January, I found a liking to these little cases. Granted, it's not Judge Judy, and reading a case is not as fun as watching the proceedings, but they nevertheless offer a glimpse into the issues of ordinary people. Had a bit of time today, so I decided to look up some of the latest cases. I just picked one that seemed interesting: Gaudreault c. Future Shop, because everyone knows Future Shop, and I wanted to see what the Gaudreault person had against the store.

Note: below is a summary of the decision, and not a complete translation.

Gaudreault v. Future Shop
Qc, Ca, Chicoutimi District
Judge: Jean-Yves Tremblay

The plaintiff demands the replacement of a 52-inch Samsung LNT TV, bought May 31, 2008, because the empolyee of the defandant has accidentally knocked the TV while loading the furniture (TV table?), thereby breaking it.

[Declaration of Gaudreault's wife, stating that the Future Shop employee was loading the TV with her husband]

[Contestation from the defendant, stating that the plaintiff was informed his car was too small, and was warned that the plaintiff would be responsible for any damages, but decided to transport the TV nevertheless. Physical damages are not covered by the Service Plan. The defendant also claims that it is impossible to determine when the damage has occurred, and the plaintiff has been warned of the risks.]

[Declaration of and employee of the defendant, stating that the TV has been wrapped in bubble wrap and then loaded in the plaintiff's car. The employee had remarked that the car was very small to transport a TV of that size.]

Proof revealed that the TV was very well wrapped. The plaintiff had also been offered the delivery service and the employees had warned the plaintiff the risks.

The Plaintiff's wife was in the car, and confirmed the loading maneuvers, but couldn't confirm that it was then the TV was broken. Moreover, the Plaintiff was part of the maneuvers, and even if that was when the damages occurred, he is the first to affirm that it was an accident.

Article 2803 states that "A person wishing to assert a right shall prove the facts on which his claim is based."

[...]

In the current case, it is impossible to determine when the damages occurred. Was it during the loading, the transport, the unloading, or the installation? Moreover, the Plaintiff had participated in the operations.

(Source: Jugements.qc.ca)

This case is quite typical, as lack of proof is one of the main reasons a claim gets dismissed. I can imagine such things can be quite frustrating. One one side, it's one of these lawsuits that happen when you do something you shouldn't. Bad things happen, and you want someone to pay for it. The guy shows up with a car that's too small, squeeze a valuable and potentially fragile article inside. It breaks, and the guy is trying to blame the store.

On the other hand, there's a guy who just spent a substantial amount of money getting a big TV, and doesn't even get to use it once. He hasn't been able to enjoy his TV, so of course he feels that the money has been wasted, and wants it back.

Well, apparently that's not gonna happen.

So the moral of the story is this: before you even start wondering whether you're right or wrong, make sure you can PROVE IT. And a busted TV doesn't prove anything.

Chinese, English, & Probabilities

I just discovered a Chinese-learning blog that looked very interesting. I read a few entries, and came up across a post about some phonetic coincidences between English words and their Chinese translation.

This is a very interesting topic, as it has some kind of mystical appeal. However, every time someone wonders whether something is just a coincidence or not, I have a strong urge to work out the math behind it, and find out exactly what the odds are. So I have done a bit of number crunching. Here goes:

According to this table: Wikipedia Pinyin Table Chinese words have a possibility of 402 different sounds (I counted). That's not including the intonations, since I'm assuming that "fee" (in English), for instance, would be deemed similar to "fei" whether it's the 1st tone or the 4th. This means that any Chinese word would have to match one of these 402 sounds.

Assuming that every english word has a corresponding chinese word, and that every english sound has a corresponding sound in Chinese that can be deemed "close enough", it means that given a random English word, and a random Chinese sound, there are 1 in 402 chances that the meaning of a chinese word matching that sound corresponds to the same definition in English.

Therefore, for every English word, there is a 1/402 chance that its Chinese equivalent has the same sound. (assuming every Chinese sound can correspond to an English one. )

If we then assume (conservative estimate) that there are 3500 single-syllable words in English (Dr. Phyllis Fisher's word list) and every word having a 1 in 402 chance of finding its correspondent in Chinese, then the odds would be that 3500 X 1/402 = 8.7 English words would sound similar in chinese.

The odds would be even more favourable if you decide that sounds like zh/z, ch/c, sh/s, an/en, ang/eng ai/ei, etc. are similar enough to be considered identical, and if you assume there are more one-syllable English words.

Just answering some fan mail

Hey JC, I have been listening to The Mystery of the Yellow Room. Just what is your background? Your English diction is great - and from the other comments I take it that your French is equally perfect. But I can't place your accent.

Whatever, you are an excellent reader and I am truly enjoying The Yellow Room.

MaryAnn (who has been a lawyer now for some 15+ years, is still enjoying the profession while hopefully making a positive contribution to society at large, and who wishes you a long and satisfying career)

Hi MaryAnn! Thank you so much for your kind comments! I'm glad to see that you are enjoying the audiobooks.

I'm actually of Chinese origin, so Mandarin is technically my first language. I've been living in Quebec for quite a while, so my French definitely has a Quebec accent. I guess my English would be Canadian English with a bit of Quebecois background.

However, since I tend to mumble a bit when I talk, I try to enunciate more, and one of the ways I've found was to borrow a bit of british-ish pronounciation, like saying "oll" for "all". Which might make the accent a bit erratic at times, and I do apologize for the listeners who are annoyed by that.

I hope this answers your question!
Thanks again for your comments!

PS: I'm glad that you are still enjoying the legal profession! :)

Circular reasoning works because...

Philosophy of Law

People have different conceptions of an egalitarian society. K. Nielsen's conception is rather radical. His vision has a marxist flavour to it, and involves getting rid of all social classes, and redistributing wealth around the world.

I found this theory rather annoying. The way our prof presented it, the system was based on the premise that the world will offer abundant resources. And in my mind, if the resources are abundant, then of course you could reach equality. The reasoning seemed somewhat circular.

I mean, if you consider that material inequality is caused by the scarcity of resources, or the perceived scarcity of resources, then the minute you eliminate this scarcity, then you eliminate one of the causes of inequality. And it will be like saying that "In a world without inequality, there will be equality." The rest is just figuring out a way to distribute the wealth, which is what most of the theory is about. (And yes, I do realize that most of the inequality comes from the uneven redistribution of wealth, and having a theory about the redistribution of wealth is good, and might be a step towards equality.)

Of course, it is admitted that this conception is rather utopian, and it should somewhat excuse the initial flaw. Methinks the real theory should be finding a way to achieve a sustainable exploitation of resources, and to distribute them equally. Thus, the eradication of scarcity (or of the perception of scarcity) will bring equality.

On the other hand, some people say that we currently produce enough resources to fulfill the needs of all human beings. (no, I don't have a source for that, it's just something one hears, and I don't feel like looking it up either) So assuming the Earth does produce enough for everyone, then basing a theory on an idea (or ideal) of "abundance" seems like an attempt to overcome the obvious non-applicability of the theory.

It would be like saying "Right now, we don't have equality, because the resources are scarce, but IF the resources were to be plenty, then we'd be equal."
But what if the Earth does produce enough? This is does not seem to be something that Nielsen (or my prof, since my knowledge of Nielsen's theory only comes through my prof) considers, since the conception is qualified as being utopian, and being such, it means that the initial condition of plentifulness are non-existent.

In which case, it makes for very nice philosophical considerations, but we're arguing into the void, as we are ignoring the problem of the non-practical-applicability of the theory by presuming its non-practical-applicableness. (Or, in better English, it cannot be applied in practice, because it has not been made to be applicable in practice, since it --supposedly-- deals with an ideal of plentifulness that doesn't exist)