A young Toronto, lawyer has brought me face to face with the legal and moral meaning of clear conscience. Her conduct with an unrepresented party was unconscionable—to use a legal term. The Pocket Dictionary of Canadian Law by Daphne A. Dukelow states the test for unconscionability is when “…there was inequality in the position of the parties due to the ignorance, need or distress of the weaker which would leave him [or her] in the power of the stronger coupled with proof of substantial unfairness in the bargain” (Thampson Carswell 2006, p. 478).
In March 2008, the lawyer entered the court room early in the morning with confidence that she would be successful in a two day non-jury trial. She told me, as I was the Court Clerk and Registrar that she was sure that the defendant would not show up. She expected the matter to only go for half-day—which is the time she needed to present her case to the judge. The pattern of the defendant in the course of their legal battles was not to attend any hearings or motions although the defendant would be properly served and invited.
The case was a lawsuit against a middle aged sole proprietor who had to close down her thriving X-Ray and Ultrasound business. Her lease was not renewed and the property management rented her space to a similar business. Apparently upset, the defendant, it was alleged, damaged the premises as she removed her equipment. To the lawyer’s surprise that morning, the defendant showed up as a self-represented party—unable to afford a lawyer. They both left the court to talk.
About fifteen minutes later, the defendant returned inside the courtroom frightened, very insecure, and almost in tears. She said to me the lawyer told her, “You know you are guilty and it is pointless contesting the allegations.” As she described her conversation with the lawyer, I saw the fear in her eyes and I kept wondering why the bullying tactics by the lawyer—who seemed so pleasant when she entered the court room and spoke to me.
The unrepresented party was unaware of court procedures and in her ignorance was almost convinced that the case was decided before it was even heard by the judge. She asked, “What can I do? Can that lawyer tell me these things? I did nothing wrong?” Of course as a court officer I am not a lawyer and therefore I cannot give advice. I told her, that there was a legal clinic downstairs on the main floor and she can go there now before we start. She did.
She returned five minutes late at the time for the court to start with a letter seeking adjournment to have a legal representative. The lawyer was shocked at this and tried to initially object on the basis that she was not aware of the defendant’s intention to seek an adjournment. The judge, as with all judges in the judiciary, was sympathetic to the lack of legal knowledge of the self-represented party and so allowed some latitude and granted the adjournment. Of course, the lawyer argued that the defendant had more than enough time to search for a lawyer and only now has made this late and last minute tactic to delay the inevitable order.
Further the lawyer submitted that her client has a right to have closure on this matter which is overdue. It was during the young lawyer’s submissions I saw her belligerent and unconscionable attitudes. She pretended to be sympathetic to the unrepresented party, but with the aim of seeking her client’s interest, for which she is paid, she often tried to overrun the defendant by often side tracking into giving evidence on the lawsuit rather than providing arguments why the matter should not be adjourned.
The lawsuit was for $45,000 [Canadian funds] in damages and the young lawyer was seeking an order to get a judgement for this. A few weeks after, the shoddy evidence presented by the landlord through his young lawyer was an obvious indication why they were rushing to get judgement in absentia. As I listened, I wondered, ‘Where is the heart of this young lawyer?’ When she spoke to me, she seemed so reasonable and understanding. She clearly believed she was in the right and that the defendant was wrong and defiant. Of course, I do not know the truth. But I looked at the lawyer still wondering that she must have slept well in the nights in this case. Perhaps she lives with a clear conscience that her behaviour is ethical—at least professionally so—and just.
I have been working for seven years as a Court Clerk and Registrar, listening to cases and speaking to lawyers, claimants, and judges. I have always struggled with an understanding of the role of the human conscience in legal events. I wondered how lawyers live with themselves. How can they, at times, represent a client with an unreasonable position that obviously hurt and maim the emotional and financial life of the other party?
Mentioning this to one senior lawyer and a Queen’s Counsel who both represented 130,000 families in a class action lawsuit, they both agreed with me. It is a challenge to live with the kind of representation I just mentioned. The senior lawyer said, “If I don’t believe my client or in the case, I cannot handle it. My eyes and actions will give me away. So I refuse such cases.”
A clear conscience is one that is in harmony with the actions and thoughts of its host or the person claiming to have a clear conscience. A clear conscience may not necessarily be the ultimately peaceful “heart” due to the fact that the person’s conduct is Biblically based and the person’s character and actions glorifies God. A person with criminal values or a culprit sleeps well as his or her behaviour is in sync with his or her ugly and evil values. When the apostle Paul in Romans 9:1 speaks of his conscience being clear, he said, “I speak the truth in Christ—I am not lying, my conscience confirms it through the Holy Spirit.” [Read my book, When Conscience Speaks, for a more complete discussion on conscience and its functions and operations.]