Law Times

Page 12 December 8, 2014 • Law Times www.lawtimesnews.com Prof concerned about lawyers' online marketing New paper raises ethical issues with web sites touting sexual assault services By Glenn kauTh Law Times s the conversation around sexual assault and how the legal system deals with it continues, a law pro- fessor at Dalhousie University's Schulich School of Law is airing her concerns about the ethics of how many criminal defence law- yers advertise their services in that area. "I think this is an important issue that law societies should pay attention to," says Prof. Elaine Craig, whose research topics in- clude sexual assault law. "The rules don't ref lect the reality of how lawyers advertise today." In a forthcoming paper in the UBC Law Review, Craig raises concerns about a number of as- pects of defence lawyers' online promotion of their sexual as- sault services. The concerns include web sites that she says promote the acquittal of cli- ents who appear to be factually guilty; those that imply aggres- sive advocacy or appear to triv- ialize sexual violence; advertis- ing the use of particular trial strategies; and inaccurate or misleading accounts of the law. The paper follows Craig's review of the web sites of crimi- nal defence lawyers in Toronto, Ottawa, Winnipeg, Calgary, Edmonton, Lethbridge, Alta., Vancouver, Kelowna, B.C., and Brampton and Hamilton, Ont. She performed Google searches for the terms "sexual assault lawyer" and "sex crime lawyer" for each of the cities and examined the web sites of those with top results. In com- piling the paper, she looked at 40 web sites. The thrust of her criticism relates to ethical concerns about the way many lawyers with the top Google rankings market themselves. "Unfor- tunately, a significant subset of the criminal defence bar advertises online in a manner that may be inconsistent with one or more of the ethical rules established by the law societ- ies — in particular the market- ing rules, the rule requiring lawyers to encourage public respect for the administration of justice and to conduct one- self in a manner that ref lects favourably on the legal pro- fession and that inspires the confidence, respect and trust of the community, the duty to maintain client confidentiality and to uphold the reputation of the legal profession, the duty of competence, the obligation to communicate in a manner that is consistent with the proper tone of a professional communication from a lawyer, and the require- ment that public statements by a lawyer concerning a client's af- fairs are in the best interests of the client and not for the purpose of publicity or self-promotion," she wrote in the paper. A big focus of the paper is on web sites that Craig found pro- mote acquittals of those who ap- pear to be factually guilty. One case described in the paper, R. v. L.H., came from lawyer Sean Robichaud's web site: "All parties were drinking at a New Years Eve Party. The Complainant became intoxicated and unconscious. The Complainant's partner and L.H. placed the Complainant in L.H.'s bed due to her intoxicated state. The Complainant became ill, thus her partner and L.H. cleaned up both the Complainant and the area where she became ill. The next morning the Complainant alleges L.H. sexually assaulted her in her sleep. DNA analysis was completed on the Complainant's underwear and tested positive for L.H.'s DNA. Results: Jury acquit- ted Mr. L.H. of all charges." Craig then noted some of her concerns: "Individuals cannot consent to sex while unconscious. By describing this sequence of events, and then noting that the accused's DNA was found in the complainant's underwear but not offering any other details of the case besides the acquittal, this ad- vertisement may leave the reader with the impression that the client was factually guilty. No other in- formation about the case is given." In an interview, Craig notes the lawyers in the cases she describes aren't invoking legal arguments such as breaches of the Charter of Rights and Freedoms as the basis for the acquittals. "They're not in- voking the Charter," she says, add- ing "it's reasonable" that someone reading the cases described would feel the lawyer got the person off despite being guilty. And in her view, while defence lawyers are providing important services in defending their clients and holding the state to account, that doesn't necessarily extend to how they market themselves. "The justification for vigor- ously defending an accused that is known to be factually guilty is that to do so preserves the integ- rity of the criminal justice system by ensuring fair process through partisan, adversarial roles," she wrote in the paper. "In the context of the culpable defendant, the defence lawyer performs a role-based public service intended to protect an important social process. The acquittal of a factually guilty ac- cused is a byproduct of, rather than the function or objective of, this important public service. . . . The justification is role based. It does not extend beyond the context of a particular case or FOCUS Recognizing the best in Canadian deal-making The Canadian Dealmakers program is committed to recognizing excellence in deal-making. Come and celebrate at the 8th annual Canadian Dealmakers awards gala. This event brings together the who's who of corporate executives, deal teams and advisors to recognize dealmakers who have impacted their industry and have strategically positioned their business for innovation, growth, globalization and diversification. Join us at the Canadian Dealmakers awards ceremony on March 5, 2015 at the Royal York Hotel in Toronto. To purchase a table, please contact us at CarswellMedia.Sales@thomsonreuters.com or call 416-649-8841 Learn more about the program and view past winners at www.canadiandealmakers.ca The awards are chosen by a distinguished panel of business leaders: Brent Belzberg Senior Managing Partner, TorQuest Partners Marc-André Blanchard Chair & CEO, McCarthy Tétrault LLP Denyse Chicoyne Board Director for TMX Group, Richelieu Hardware Ltd. and Industrial Alliance George F. J. Gosbee Chair & CEO, Alta Corp Capital Inc. Donald R. Ingram President & CEO, CamCar and Associates Robert Kennedy Dean, Ivey Business School at Western University John H. McArthur Dean Emeritus, Harvard Business School L. Jacques Ménard, C.C., O.Q. Chairman, BMO Nesbitt Burns and President, BMO Financial Group, Quebec Gregory J. Smith President & CEO, InstarAGF Asset Management Inc. L. Scott Thomson President & CEO, Finning International Inc. Frank Vettese Managing Partner & Chief Executive, Deloitte Canada Paul Waldie Editor, Report on Business, The Globe and Mail Founding partners Gold sponsor Silver sponsor Bronze sponsor Net proceeds go to support Untitled-5 1 2014-11-26 9:37 AM A See One, page 13 'I agree with Prof. Craig that the regulation of com- mercial expression by lawyers should be reassessed in the Internet era,' says Gavin MacKenzie.

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