Michelle Mann is a Toronto-based consultant and freelance writer, specializing in social justice, human rights and Aboriginal issues. A lawyer with many years of practice behind her, Michelle now dedicates herself to consulting on and writing about legal, political and policy issues, particularly those with social justice implications.

As the Lamer inquiry continues in 2005 with its mandate to investigate several wrongful murder convictions in Newfoundland, a related hearing has been initiated by the Law Society of that province against lawyer Jerome Kennedy.

This disciplinary hearing against Kennedy arises from comments he made back in 2003 concerning the role of the judiciary in wrongful convictions, comments that resulted in a complaint to the Law Society by the chief justice of Newfoundland's Supreme Court.

To some, the disciplinary hearing may appear nothing more than a knuckle rapping for an unruly lawyer, but for others it represents an outrageous erosion of free speech, in the very profession that is its frontline defender.

Apparently, lawyers possess freedom of speech so long as it is not directed at the profession's sacred cow, otherwise known as the judiciary.

Kennedy, a director of the highly respected Association in Defence of the Wrongly Convicted, was pivotal in getting the wrongful murder convictions of Greg Parsons and Ronald Dalton overturned. He was accordingly highly critical that the Lamer inquiry into this miscarriage of justice would not be investigating the role of judges.

In a public speech prior to the inquiry's sitting, he alleged some degree of judicial incompetence, political patronage and bias, both intentional and unintentional.

Fighting words no doubt.

It is no surprise that Chief Justice Derek Green was displeased, but for one lawyer to complain about another to a law society is pretty serious stuff. We all know the hell that a complaint, whether misguided or deserved, will wreck on our professional lives.

Clearly, Kennedy will not be disbarred, though he may face other disciplinary measures, including reprimand or suspension. But that is beside the point. The mere fact of a complaint having been lodged, and the Law Society having the audacity to proceed with it, may well suffice to have lawyers thinking twice about levying criticisms at the justice system they serve and are integral members of.

True, lawyers are governed by rules of professional conduct, one of which requires that the lawyer should encourage public respect for, and try to improve the administration of justice. The lawyer is directed to refrain from levying unreasonable criticisms against the legal system or subverting public confidence in legal institutions.

Justice Green's complaint alleges that Kennedy's criticisms were beyond the pale, consisting of a generalized condemnation of the judiciary that would impact public confidence in the court as an institution.

No doubt, Kennedy's comments were unrestrained, but as a lawyer who worked relentlessly to ameliorate the miscarriage of justice in the wrongful murder convictions of two men, he might be forgiven an intemperate moment.

Surely he has single-handedly done more for the administration of justice in the public interest than most lawyers, yours truly included. That such a lawyer finds himself in a disciplinary hearing for speaking his version of the truth is a smear on the profession itself.

And he had a point. Why, in a multi-year inquiry, would an examination of the role of the judiciary not be included in the mandate? The "conviction" part of "wrongful conviction" clearly indicates that judges were involved.

In Saskatchewan, the recently commenced Milgaard inquiry is mandated to inquire into and report on "any and all aspects of the conduct of the investigation into the death of Gail Miller, and the subsequent criminal proceedings resulting in the wrongful conviction of David Milgaard."

Presumably that includes the role of the judiciary, not so sacrosanct after all.

Not only does Kennedy find himself the subject of a disciplinary hearing, but one that appears to have been expedited. Kennedy's lawyers allege that the Law Society did not conduct a full investigation into the complaint and Kennedy's comments prior to proceeding to a disciplinary panel, contrary to established process.

In fact, they say the Law Society didn't even bother itself to obtain a copy of Kennedy's indicted speech, and they're seeking an absolute discharge from the panel. One could be forgiven for thinking that this oversight has something to do with the fact that the complainant is no ordinary aggrieved client.

I wonder, where does one bring a complaint against a law society that has brought the administration of justice into disrepute?

Ultimately, most lawyers would privately concede that the various law societies are our fair-weather friends at best. They represent and protect the public interest, not that of lawyers, though the two may often intersect.

Which is all well and good, but for this new Big Brother routine.

The Law Society of Newfoundland would do well to recall its own mandate to govern lawyers in the public interest, not to be confused with the judicial. If lawyers are the primary defenders of the justice system but can't speak out and criticize it without reprimand from our own governing bodies, the public interest cannot be said to be served.