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Op-ed writing has some significant disadvantages.  Unlike academic writing, it doesn't allow time for rumination and rethinking ideas to get the expression of them right.  And unlike blogging it doesn't have the conversational aspect which allows one to restate or revise one's thinking/ideas through discussions with others.  And, of course, it allows one to realize, through e-mails and comments on one's op-ed, that one is a fool, a dangerous fool, nuanced, ignorant, thoughtful, socially conservative, politically correct, a Harper-ite, a liberal, someone with skeletons in her closet, cowardly, brave etc. etc.  

In my op-ed I made an argument in four parts.  First, I argued that the process for appointing judges in Canada has fragile legitimacy because it is highly political and not transparent.  Second, I argued that that fragility means that the process has to function well, if it is going to remain in its current form.  Third, I argued that the failure of Lori Douglas to disclose that pornographic pictures of her had been put on the internet, and used to solicit a black client for sex, undermined that process.  Fourth - and this is the most difficult part - I argued that the fact that those pictures had been used in that way disqualify her for sitting on the bench.

In this blog I want to explain further my argument as to why disclosure matters so much, to defend my position on disqualification, and to bring out the ethical issues that - I think - are as important as the issues relating to her judgment.

Disclosure is not an independent good.  We do not impose confessional norms on people - if anything, norms of privacy and autonomy privilege the keeping of secrets.  On the other hand, in various circumstances legal process requires that information be provided in order to allow the decision to be made more fairly, discovery in litigation being the obvious example, but also the requirements of application for administrative adjudication.  One of the important professional obligations for lawyers is to ensure that clients provide the disclosure they are legally obligated to provide (no more than that, but no less either).    As a consequence, while one could argue that the personal history form filled in by applicants to judicial appointments asks too many questions - about insolvency, about being involved in litigation etc. - any lawyer who fills in that form has a personal and professional obligation to do so accurately and in good faith.  In this instance that meant disclosure was necessary.

I would argue further that disclosure in this case was important because - as is clear from the discussion of the issue - there are important facts that need to be determined before one can make a conclusive analysis of what the information means.  Douglas's husband (actually, his lawyer) maintains that she didn't know that he was using the information to solicit a client for sex, and to solicit strangers on the internet for sex.  If she did know, however, in the first instance she would be guilty of professional misconduct (since she was also a lawyer at the firm representing the client) and in the second instance it would change the analysis of what the pictures being posted on that website says about her judgment.  That means, I think, that someone, through some fair process or open discussion, needs to make an assessment of what she knew.  The husband's word for it isn't good enough without that, given that he has every reason to lie and his own behaviour suggests that his credibility is somewhat wanting.  

Further, this is information which, in addition to having the potential to bring the judiciary into disrepute (as I argued in the op-ed) is the type of information which, if not disclosed, could be a potential source of blackmail.  Some of the questions asked of the applicants - such as those about insolvency - may make sense mostly as a means of identifying potential sources of judicial blackmail.  In that context, this information needed to be disclosed.

Finally, the process for appointing judges is not a matter only of determining who is good enough (which, I would argue, is what bar admission is about).  Rather, it is determining who, amongst a highly qualified and relatively large pool, is the best person for that position.  When Lori Douglas was appointed, another Manitoba lawyer was not appointed.  The existence of information which may be relevant for distinguishing candidates for others is legitimately asked about, and needs to be disclosed.

What about the disqualification issue?  This is the hardest issue.  It is hard because there is good reason to be concerned with disqualifying judges on the based of sexual mores.  As many commentators have pointed out, we don't want to return to an era where homosexuality would be a concern, and the recent appointment of Elena Kagan, and discussion of her marital history (or lack thereof), shows that there is still a concern that the judicial appointment process can take on a moralistic aspect.  Further, if she was ignorant about the pictures being used by her husband in that way, it starts to seem like she is being targeted simply for taking porno pictures with her husband, which would seem to be highly moralistic. Finally, as a number of people said to me, a preference for one race or another in one's sexual partner does not suggest, per se, racial stereotyping.

I share all of these concerns.  My conclusion is justified on a narrow basis.  The way the pictures were used with the client, and the specific ad that was posted on darkcavern. com, did not simply solicit sex.  They also did not simply solicit sex from a black man.  They traded on a particular image of black male sexuality - dangerous, aggressive, dominating.  That stereotype of black male sexuality has a troubling history in the world of judicial decision-making.  And having her pictures associated with the adoption of that stereotype is why this case is, for me, not about sexual morality, but is about whether, given what happened, she could be perceived as capable of fair adjudication by those who appear before her. 

Finally, on the other ethical issues.  The real problem in this case, the problem that led to everything that came subsequently, was that the Law Society of Manitoba, in being told of the husband's dealings with the client, took the position that since the husband had documentation to suggest that he had some mental health challenges, and was getting treated for those challenges, no further inquiry was necessary.  Thus the husband took some time off, got some therapy, and returned to the practice of law.  

In my view that was not sufficient to discharge the Law Society's regulatory obligations.  As I've noted, if Douglas had any involvement in what happened she was guilty of professional misconduct as well, since she was a lawyer at the firm representing the client.  Further, in many professional misconduct cases there is an assertion of health issues.  The legitimacy of those assertions needs to be considered.  Moreover, if the issues are interfering with ethical practice the regulator needs to limit the lawyer's practice; promises of therapy and a return without regulatory oversight is not enough.  The type of casual attitude towards really serious allegations of misconduct - allegations of the type that have led to disbarment of Canadian lawyers - suggests something pretty wrong with the self-regulatory scheme.  

Had the law society considered the issue we would know who was involved.  We would have had the matter adjudicated and dealt with, and the issues and perceptions of the parties involved fully aired.  In that world, if it was shown that she had no knowledge, that the stereotypes were not her own, then Lori Douglas could say to the world that those who doubt her ability to adjudicate do her an injustice, and are simply sexually judgmental because she had her husband take some porno photos.  And I might agree with her.  As it is, I can't.

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