Crowdsourcing a legal defence is creative, but raises issues

Jan 18, 2016 By Matthew Friedberg
Using a crowdsourcing website to raise money to help pay for legal fees associated with a criminal defence is an innovative approach to improve access to justice for some people, but it could raise moral questions, says Toronto criminal lawyer Matthew Friedberg.

“I think it makes justice more affordable to people; it’s very creative,” he tells AdvocateDaily.com. “It makes sense that if someone has a compelling social justice issue they would reach out to the public for help."

But, he adds, “There’s no way to police this.”

Friedberg weighs in on the issue generally after it became public that a former Ontario premier's senior aide, who is facing criminal charges related to the destruction of government documents, is using such a website to try to raise $100,000 for her legal defence, reports the Canadian Press.

Laura Miller, Dalton McGuinty's former deputy chief of staff, has been charged with breach of trust and mischief in connection with the “deletion of emails relating to the Liberals' decision to cancel two gas-fired electrical generating stations prior to the 2011 election,” says the wire service. David Livingston, the former chief of staff, has been charged with the same offences, says the report.

“Police alleged in court documents that Livingston and Miller hired Miller's partner, Peter Faist — a computer expert under contract to the Ontario Liberal Party — who was given a special password by Livingston to wipe clean about 20 hard drives in the premier's office. Both Miller and Livingston have denied the charges, and Miller has hired high-profile Toronto lawyer Clayton Ruby to defend her,” says the article.

Miller has said her public fundraising plan was created after friends and family came forward to contribute to her legal defence, says the national wire service.

Friedberg isn’t involved in the case and he notes that his comments are only directed toward the issue of the use of crowdsourcing to pay for a criminal legal defence, and not the Miller case in particular.

He tells AdvocateDaily.com that while a case may be expensive and technical to defend, he believes that whether the public gets behind someone who is crowdsourcing to pay for their criminal legal defence will depend on the narrative behind the case.

Friedberg says people are crowdfunding for a host of different purposes, including assisting in payment for expensive fertility treatments and cancer drugs.

He expects to see more people use it to fund their legal fees in the future but notes it’s likely that some attempting to do this will try to tell an empathic story when appealing to the public for financial support, which is where moral issues could develop.

“For example, if someone says they are innocent and they crowdsource to pay for the defence, what happens if they end up pleading guilty? Does that mean they weren’t being truthful when they said they were innocent?” asks Friedberg.

“What happens if someone is convicted after they were able to convince people to give them money based on the idea that they were wrongly accused? Do those people get their money back? Is it fraud?”