Phil Horgan

Lawyers say law is on their side in life-and-death calls

  • March 1, 2016

Catholic lawyers may soon find themselves turning down business from clients who would rather die than live with Alzheimer’s, Lou Gehrig’s disease or other disabilities.

Nobody can make a lawyer draw up an advance directive or power of attorney for personal care that includes instructions for assisted suicide, even if lawyers have a general ethical obligation to ensure people have reasonable access to the benefits of the law.

“We lawyers do have a duty to help people that we don’t agree with on unpopular causes,” lawyer Matthew Marquardt told The Catholic Register. “But that duty cuts off if the lawyer feels that his own prejudices or his own commitments will prevent him from zealously representing that client.”

The Law Society of Upper Canada’s professional standards require lawyers to turn away clients rather than try to practice in an area of law they don’t know.

“A lawyer should not undertake a matter without honestly feeling competent to handle it,” reads the Law Society’s Rules of Professional Conduct.

That rule pretty much lets Catholic lawyers off the hook when it comes to representing a client who wants assisted suicide, said Marquardt.

“It would go to competence, because if you felt so strongly about a proposition or an issue that it interfered with your impartial judgment or your ability to zealously act it would actually render you incompetent,” he said.

The Thomas More Lawyers’ Guild of Toronto is planning to arrange a seminar for lawyers on assisted suicide, likely after legislation has passed, said guild president Tom McRae.

“We are going to assist them in areas where requirements of the law may conflict with elements of their faith,” he said.

Lawyers don’t face the same kinds of pressures as doctors who are being told in Ontario they must make an “effective referral” if their conscience won’t allow them to end a patient’s life.

“We have the luxury at this moment not to be directly involved in this process,” said McRae. “It’s the doctors who are on the frontlines here. The worst that any lawyer is going to get messed up in this business I predict is that they’re going to have a client come to them and they will turn them away.”

In his 40 years of practising law Jim Doyle has turned down business for ethical rather than legal reasons, but it has never been a question of life and death.

“Even if it’s against the Law Society rules, I don’t think I would get in any trouble if I told somebody I don’t feel comfortable with that, there’s plenty of other lawyers,” said the partner with Walsh, McLuskie and Doyle in Vaughan, Ont.

Unlike the Ontario College of Physicians and Surgeons, the Law Society of Upper Canada maintains a central referral service to help the public track down appropriate lawyers. By referring a client to the Law Society the lawyer wouldn’t be directly referring for the purposes of committing assisted suicide.

Given a longstanding relationship with a client, Doyle maintains he would feel comfortable trying to talk a client out of including a pro-euthanasia clause in a power of attorney for personal care.

But for a client off the street, “I would send them somewhere else. I feel strongly about that issue.”

Canadian Catholic Civil Rights League president Phil Horgan has had clients ask for pro-euthanasia clauses in their powers of attorney.

“I’ve been able to say I can’t incorporate that kind of clause because it’s illegal,” Horgan said.

Horgan doesn’t rule out the possibility that regulatory bodies might push lawyers to act against their consciences.

“That will be a matter for which groups like ours would take great issue and if necessary would defend ourselves in court.,” he said.

Given the Supreme Court decision in favour of voluntary euthanasia, Horgan does recommend people amend existing powers of attorney or draft new powers of attorney that specifically rule out assisted suicide.

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