When Lawyers Go Bad
On October 11, 2007, I was very pleased to have as my guest Mr. Philip Slayton, the author of the wildly popular book, “When Lawyers Go Bad: Money, Sex and Madness in Canada’s Legal Profession” (Published by Penguin/Viking). Mr. Slayton is a lawyer and at one time was the Dean of the Law School at the University of Western Ontario. He knows his way around the legal profession and has written a very readable examination of some of the horrifying real life dramas into which lawyers have inexplicably placed themselves.
As he details in his book, there are over 90,000 lawyers in Canada and the vast majority of them are perfectly good, law-abiding citizens trying to meet the needs of clients week in and week out. However, in the midst of those 90,000 lawyers are some downright crazy bad apples, and he has selected a cross-section of those lawyers who truly have gone bad. I recommend the book to lawyers and non-lawyers alike. It is beautifully written and, at times, the stories are jaw-dropping.
On “Strictly Legal” Philip Slayton and I tried to demystify a few aspects of the way in which the legal profession is regulated in Canada. Most people do not realize that each province and territory has its own Law Society. The Law Society is responsible for setting admission standards for lawyers (the famous “call to the Bar”), certification of their skills and their discipline. Law Societies have a curious mandate. They are charged with protecting the public interest in the delivery of legal services, but they are also responsible for regulating the membership. The body that oversees the Law Society is elected by the members. To many that demonstrates an inherent conflict of interest.
I think many members of the public find it confusing when trying to distinguish between the provincial Law Society that regulates and disciplines lawyers and the Bar Associations. In Canada, there is a national organization called the Canadian Bar Association and there are provincial Bar Associations. These are simply “clubs” to which lawyers belong. There is no requirement for admission beyond being a lawyer and paying the fee. There are no powers of Bar Associations to discipline members of the Association. It is no different than a company belonging to the Canadian Manufacturers’ Association or a farmer belonging the Corn Producers’ Association. The Bar Associations typically lobby on behalf of lawyers for changes to the law or to protect the legal profession from changes to the law, for example around taxation or limited liability of partnerships.
Another point that Philip Slayton and I examined is the difference between a lawyer being guilty of misconduct and a lawyer being negligent. Those are quite different things and it is not uncommon to hear a client sometimes say, “I’ll report the lawyer to the Bar Association because of his negligence.” The Bar Association has no interest in whether an individual lawyer is negligent or not. In fact, the Law Societies, which regulate and discipline lawyers, may have no interest in whether the lawyer is negligent or not. Law Societies are responsible for making sure that lawyers do not engage in professional misconduct, that is, a breach of the Rules of Professional Conduct for the profession. So, if a lawyer sexually harasses a client, or swears a false affidavit to the court, that would be a breach of the Rules of Professional Conduct and the Law Society would be given an opportunity to discipline him or her. Those activities by a lawyer, however, are not negligent. Negligence is different. It is a civil tort, where a person sues a lawyer for not performing the legal services to the standard expected by the justice system and the client.
In the case of negligence, for example, a lawyer might fail to file documents within the time limits required by certain statutes or rules of court. If the lawyer failed to do that because he or she was not paying attention to the file as closely as required, then that would be negligence and the client could sue the lawyer in civil court for damages. The Law Society, which regulates activity, is not responsible for monitoring lawyers’ negligence. So, in summary, Law Societies are responsible for discipline of lawyers who break the Rules of Professional Conduct and the courts regulate or take responsibility for findings of whether lawyers have been negligent in the way that they deliver their services.
If a lawyer is found negligent, there is insurance in place to make sure that a client is compensated. In the case of discipline, Law Societies have a number of options available to them. If it is serious, and perhaps a repeated failure by a lawyer to abide by the Rules of Professional Conduct, the ultimate penalty is disbarment. The lawyer loses the right to practice law. Sometimes a lawyer is simply suspended and loses the right to practice law for a set period of time. He or she may be required to undertake some retraining or other steps prior to be being allowed to resume practice. Thirdly, a lawyer may simply be required to practice with supervision, that is, that he or she is available to the public to provide legal services, but another lawyer must supervise all of the work that they do. For more information about this area, see my book “Strictly Legal: Things You Absolutely Need to Know About Canadian Law” and, in particular, the first chapter, which provides an overview of how “the System” works, including the profession.
Philip Slayton and I also discussed briefly the area of sexual misconduct by lawyers. Unlike the situation with doctors, a lawyer having sexual contact with a client is not automatically grounds for disbarment. It depends on what kind of situation the lawyer and client find themselves. If a lawyer is representing a client in a matrimonial matter and he or she is vulnerable to exploitation by a lawyer who is in a position of trust, a sexual relationship – particularly if it creates a conflict of interest in representing the client – may be considered professional misconduct by the Law Society. Recent high profile cases in Ontario have seen lawyers suspended for sexual relationships with their matrimonial clients. Personally, I have never understood how a lawyer could slip into this kind of personal relationship while representing a client, as it is inherently creating a conflict of interest. How is it possible to provide objective advice – advice that they perhaps do not wish to hear – when one is in a personal relationship with that individual. In fact, Law Societies regularly tell lawyers not to represent family members or other relatives for precisely that reason. It is hard to give a personal family member or friend blunt advice at times.
Philp Slayton explained that if the treatment of these types of sexual relationships between lawyers and clients is considered on a national basis, there is no real pattern to discipline. It seems to depend on the facts of the case. If there is no imbalance in the relationship between lawyer and client, it may not result in disbarment. If there is a serious imbalance or exploitation of the client, disbarment is a possibility.
We also focused, during our discussion, on what can be done about this situation. Philip Slayton feels that Canadian jurisdictions should consider following the U.K. model, which has removed regulation of lawyers from the profession itself and put it in the hands of a government body. These government bodies have lay members. Other jurisdictions in the world have done something similar. In addition, Philip Slayton takes the view that the average Canadian simply can no longer afford legal services and that this is a challenge to our democracy. When people cannot access the justice system, democracy is diminished. He feels that a national plan of legal insurance for Canadians is a possible solution. Frankly, I would be shocked if a politician decided to carry the can for bringing in public funds to assist in paying lawyers. As important as access to the justice system is for Canadians, it would be a tough political message to deliver at the doorstep. In other words, do not hold your breath.
It was a terrific discussion and, as usual, I always wish that we had an hour or more to really dig into some of these cases in depth. If you are interested in knowing more about the lawyers who have gone bad, and just how bad they went, I highly recommend Philip Slayton’s book, “When Lawyers Go Bad: Money, Sex and Madness in Canada’s Legal Profession.” Just remember that the bad apples you are reading about are a fraction of the actual legal profession. Many of us are just plugging away trying to help clients and make a reasonable living at the same time.
Michael G. Cochrane, B.A., LL.B.
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