A conversation with Marie Henein on the role of lawyers in society

Welcome to the Rule of Law Matters podcast, a podcast about what the rule means and why it matters. This podcast is brought to you by the Law Society. The Law Society is a regulatory body that protects the public by setting and enforcing professional standards for lawyers in our province.

We have a very special episode today. Renowned criminal defense lawyer Marie Henein has joined us to talk about the role of lawyers in our society, what influenced her to be a lawyer and threats to democracy and the rule that are happening around the world right now. Marie Henein is a senior partner at Henein Hutchison LLP recognized in Canadian Lawyer as one of the country's top 10 litigation boutiques. She has been interviewed on CBC's The National, written for the Globe and Mail and is a sought after speaker. Marie recently released her memoir "Nothing But the Truth" which weaves her personally story with her strongly held views on society's most pressing issues, legal and otherwise.

Marie is going to be speaking at our Rule of Law lecture on April 4th. You can find out more about the free public event and how to register on our website: lawsociety.bc.ca. Here's a little glimpse about what she will be talking about at the lecture. This is her discussion with our podcast host Jon Festinger.      

Jon Festinger

Marie Henein, thank you very much for joining us on the Rule of Law Matters podcast. We really appreciate it and we really appreciate you soon addressing the assembled multitude here in British Columbia in our annual lecture series. So thanks for being here.

Marie Henein

Pleasure.

Jon Festinger

You've written a lot in your book on your childhood and your family; what experiences influenced your decision to become a lawyer and to become a criminal defense lawyer with, in terms of your family but also maybe in terms of the world and how you looked at it?

Marie Henein

Well you know there were no particular moments, no singular events that caused me to want to be a lawyer and cause me to want to be a criminal defense lawyer. You know as I write in the book, I didn't know until I was sort of well on the way to seeing that as my future that my father had always wanted to be a lawyer. That was his true passion. It sort of makes sense to me now when I think back about his personality. But for me it was really driven by deeply personal interests and my, my personality, where I thought I would fit, what I wanted to be doing in a day. And those things meant that this was really the, the right place for me.

So look, the subject matter, particularly criminal law, which I think most of the public that's what they identify with when they think of lawyers 'cause that's what you see in media, the issues that you deal with are so expansive and so critical in terms of the way we see ourselves as a society, the way we govern ourselves, the way we choose to evolve and I thought that was fundamental.

I think that I'm an outsider by nature and so being on the side opposite of the state authority is a natural place for me to fit I think. I don’t like bullies and often find that the government and state power can be bullying. I believe very much in individual rights and so all of those things were pretty critical. But also, I love a good fight and where else do you get paid, other than a boxing ring, to fight?

Jon Festinger

And there's a certain safety in, in the intellectual fight as opposed to the physical.

Marie Henein

Absolutely.

Jon Festinger

Let me just follow up on that in one way. You realized or knew, I think is probably the more appropriate word, that you wanted to be a lawyer very early on so where were you getting your impressions of what lawyers did that gave you that certainty? Was it media or was it anything beyond media?

Marie Henein

It was entirely television, I mean television and books you know, it was where I was getting my information about what a lawyer does initially through TV so I had a fairly general understanding of what a lawyer's job was, what a criminal defense lawyer did. That to me made sense. And obviously books like "To Kill a Mockingbird", you know the seminal books and movies like "Inherit the Wind" and those sorts of things that were based on Clarence Darrow's Scopes Trial, the Monkey Scopes trial.

All of those things, those depictions of lawyers, and it used to be, and I think it's important to note this, that you know at least when I was growing up that the way lawyers were depicted was in an admirable way, not in a caricatury, embarrassing butt of the joke way. These were people that were doing good work, they were honorable notwithstanding they were representing people charged with crimes. That was the perspective. And so that was what I saw as a criminal defense lawyer, I saw it as an honorable profession.

Jon Festinger

Fair to ask, name one TV show that, that influenced you.

Marie Henein

Perry Mason was a lot of drama I thought, and that certainly was one back then that was pretty significant. But then there were a million that followed, certainly LA Law was one and I think as time went on, it just became a little more caricatury. If I were to anchor my thoughts around what I perceived a criminal defense lawyer, it was always the Clarence Darrows, the Kunstlers, these were the people, these were the people I, you know I would read the transcripts of the Chicago Seven trial, of Kunstler's speeches, you know Clarence Darrow's speeches, I think every criminal defense lawyer has a gazillion Darrow books.

Those were the things that were how I perceived the image of not only what a defense lawyer was but how they were regarded in society, what our place was. So those were the most compelling for me, those sorts of depictions of our work.            

Jon Festinger

Sort of with that background, you've talked about how important it is that the public understands why everybody needs access to legal representation, even those who have been accused of committing serious, sometimes awful crimes, you know can you explain to the public, to those who may be listening, and sometimes lawyers struggle with this as well, can you explain to those who struggle with this idea why this is so clearly the way it has to be?

Marie Henein

Well lawyers should never struggle with this at all but I understand why the public would struggle and that's because it's, you know the role of a lawyer in the architecture of our democracy is very, very fundamental. It's set up in a way that we have an independent arbiter, we have a prosecution but on the other side of it, the person doing the challenging is the defense lawyer.

And when you look at history, when you go to think of times like Germany where one of the first strikes was taking out an independent bar and an independent judiciary. And in lots of countries, an independent bar and an independent judiciary are viewed as a very, very significant threat to the government and to autocratic rule. We saw that really in the United States in my view with Trump and his wholehearted no holds barred attack on the judiciary and on dismissing this idea of an independent arbiter being allowed to check the power of an elected official. And we see it in Canada, I write about this.

To understand the importance of defense lawyers and of lawyers and an independent bar is to understand what our democracy requires to survive and to thrive. And we see in so many forums, a good example would be in Canada that many of the issues that we want to challenge, that we want to litigate or challenge the government and push back on are articulated in a courtroom. It's the most civilized, dignified and profound way to have those matters aired.

And so you know it cannot be that there is some barometer somewhere out there that I don’t know about that's going to decide when someone's entitled to a defense, when a cause should be litigated in court and when it shouldn't because we know that that's going to depend on which side of the political spectrum you used it on, right. And knowing that makes that determination profoundly arbitrary. So you can't, you can't make it a differential application of justice and the right to representation.

Jon Festinger

Well right now, and although it's not strictly speaking in the criminal sphere, we're seeing the government of the United Kingdom being extremely critical of lawyers who represent Russian oligarchs or would stand in the way or challenge legislation relating to Russia in the midst of Russia's invasion of Ukraine. Do you have some perspective on that criticism? And some law firms are you know, have chosen to abandon their clients to move on and say we're, you know we're not going to do this work and others I assume are continuing but you have the government basically calling lawyers, some lawyers in, in the UK names and literally naming and shaming them if you've seen some of the headlines.

Marie Henein

I do have a view of that. First of all, I don’t have a problem with a lawyer or a firm taking a position saying they don't want to do this work. I mean that's a personal decision and I think it's relevant if you're the only lawyer that can do that work. But if you decide for your personal, own personal reasons that you're just not going to bring what you need to it, that you cannot withstand what will be involved or that emotionally for you it's just not the right place then the reason you withdraw is because you're not going to be in a position to serve your clients in the way you need to.    

Jon Festinger

Exactly.

Marie Henein

So I don’t have a difficulty with that. I do have a huge difficulty with the attacks by the government because you will recall that the lawyers representing the Guantanamo Bay detainees were subjected to very much the same approach and it's all well and good now, you know after numerous articles and numerous cases and numerous Hollywood movies that we all say oh my gosh, what an honorable thing it is to represent a Guantanamo Bay detainee but back then, when these criticisms were being leveled against them, these lawyers were called traitors and were called defenders of terrorists and you know people who were attacking North America. So it's the same thing here.

You know it's not in defense of Russian oligarchs and it's not in the defense of Russia, it's in the defense of what the appropriate state powers are and the problem is in times of crisis, in times of emotional distress, the government reacts as it will and as it should. But the beauty of the democratic system is those reactions can be stress tested if you will in a courtroom and there is nothing inappropriate about that. There is nothing wrong with challenging it within the parameters and giving it a close look. I think that's precisely what courts are uniquely positioned to do so it's terrible to, to lobby, to lob judgment at these lawyers who are, you know in my view, doing a difficult thing and presenting the other side of it.

And let me note that there are also numerous lawyers advancing Ukrainian causes all over and I have a sense the lawyer advancing the Ukrainian causes in Russia is getting the same treatment that the lawyer advancing the views of Russians in the UK. The difference, the difference, is in the UK it's an independent bar and an independent judiciary and they will be heard fairly, they won't be hauled off to jail. So you know I have no time for that sort of criticism and that sort of uninformed attack on professionals doing their job.

Jon Festinger

Well lawyers doing their job, when we do our jobs, is always, to borrow your phrase, in defense of the rule of law. If we don’t do our jobs, we actually weaken the rule of law, if we capitulate we weaken the rule of law, we weaken democracy. You've compared the justice system to the Sphinx which is an interesting analogy, vulnerable to attack and exposed to anyone who wants to take a shot. We've started talking about that in terms of the UK government but what other current threats do you see to our justice system?

Marie Henein

Well you know I do think that the biggest threat right now is these sorts of unbridled attacks that we're seeing in democratic countries against institutions that they created as an arm of a democratic, a democratic system and a profound disrespect for what those actors and institutions are required to do. I really do think that's where threat comes. Now whether that has been motivated by this populist sentiment, this belief that elected officials are somehow more valid than unelected officials, the judiciary and that arm of our democracy; whatever it is that's driving it, it is I think the most pervasive threat and one of the most significant ways to erode the strength of our democracy.

I do not see any other place, short of taking up arms, where people defend democracy, and I am not in favor of that. To me it is the most critical forum to litigate our values, to challenge our governments, to be heard as citizens and to defend the rights of the minority. That's where it has to happen and so when you see it being chipped away at by very influential people, it's disturbing.

And you know I'll just give you this one example. When you think back again to the United States and what happened when Al Gore loses by a hanging chad, well it works its way to the Supreme Court of the United States, they rule, he comes out, he says I accept it and moves on.

Look at what happens now with Trump where notwithstanding Republican judges rejecting his claims that this was any way an improper or stolen election, that has gotten into the fabric of a substantial number of voters because they believe what? They believe that the judiciary is rigged, the system is rigged and they've accepted that message and you see the fault lines in that democracy. You see what is happening there. So you know in my view that is the most significant threat and that requires us to do a better job of explaining to the public what we do, what the courts do and why we need to protect them with every fiber in our being.

Jon Festinger

Well and you've made great points about the independence of lawyers and the independence of judges in a democracy and I'll add one more piece to that because I used to do a lot of representing of them and that's the independence of journalists and media because they also end up being very much on the front lines of the battle for democracy and the battle for the rule of law. And subject to the same pressures and the same attempts at invalidation that governments and others and those who tend towards autocracy.

Marie Henein

Sure, and you know look at, sorry, look at Ukraine right now. There's a reason Russia is aiming at shutting down media not only in Ukraine where they're you know doing it by bombs but in Russia shutting down free media. So yes it is, that is another absolutely critical arm of democracy. But you know what's interesting is what's consistent in all of these areas is these are places where challenges are made to the, to the party line and so you shut down those challenges if you want to maintain the party line.

Jon Festinger

And those challenges ultimately in, where we are lucky enough to be in a free and democratic society, are what strengthens that society. And when those challenges are shut down or not allowed to proceed, that, that invariably weakens that society. And you know obviously we're in the middle of a drama that involves the rule of law, involves the role of media and it still doesn't have a predictable conclusion. That said, you will be speaking at the Law Society's Rule of Law Lecture on April 4th and we're very appreciative of you doing that. We are hoping that members of the public who are not lawyers will join us to hear about you, your book and your perspective on the rule of law and why it is important. What are you hoping audience members in this public lecture might take away from your talk?

Marie Henein

Depends on what I'm the mood to discuss. I don’t have canned speeches and so you know what is going on in the world right now is very hard not to talk about so you know I think that's where my mind is at and I think it's about engaging with the public about how that intersects with our work. So I wouldn't be surprised if it's going to be topical. So many things to discuss, whether it's government control of law societies or it's the UK slamming lawyers or it's Russia shutting down you know the judiciary and independent bar. They're lessons, you know what's fascinating to me is the lessons, although they're now current, are just repeats, right, this is, it is, it's not new although it's current. And I think sometimes we need to take a moment to assess where we are and think back where we've come from and understand what is at stake, what is really at stake here. And I think there's a lot at stake. So I expect you know that's where my head is at, I expect that's what I'll be discussing.

Jon Festinger

Well, you know I think we have the broad parameters, we know it'll be topical and obviously right on point to that day and even that moment and so that's very promising indeed. Marie Henein, thank you very much for joining us. It's been a pleasure and an honor and we'll see you at the Law Society's public Rule of Law Lecture on April 4th.

Marie Henein

Thank you, looking forward to it.

 

Thanks for listening. If you'd like to hear Marie Henein speak in person at our Rule of Law Lecture on April 4, visit our website at lawsociety.bc.ca for even information. If you have any comments or suggestions for this podcast, please email us at podcast@lsbc.org.