Ontario lawyer despairs that the legal profession places Privilege over Public Interest

As usual, Julie Macfarlane doesn’t hesitate to speak the truths that many in the legal profession find so difficult to acknowledge in public, or even admit to themselves.

Her latest piece is superb and well worth your time, especially if you are a lawyer or a judge. The article should be required reading in every law school in the country.

For me, the one issue in Julie’s article that stands out above everything is how the legal profession, including the Law Society of Upper Canada, usually places privilege over public interest. Lawyers and former lawyers (called ‘judges’) most often choose to protect their own even at the expense of the public interest and the public trust.

Notwithstanding that the vast majority of lawyers and judges are hard-working, ethical, and decent people, the current culture of the legal profession punishes members who dare to report or even acknowledge specific professional misconduct by other lawyers. The standard in the profession is that it is permissible to talk about ethics and misconduct generally, but woe unto the lawyer or judge who points a finger. In many ways this is very similar to the protectionist culture found in policing organizations.

Those in the legal profession who won’t circle the wagons and stand with ‘the Club’ soon find themselves standing alone, with no referrals and few lunch invitations at best. At worst, they are squeezed out of their firms, find their careers diminished and themselves under attack.

As Julie Macfarlane says,

“It’s not the people in the legal profession who are the problem.

It’s what the profession has become.”

Julie Macfarlane: Why I Sometimes feel Despair about the Profession I Love

Canadians are well aware of what the legal profession has become, just as they are well aware of the legal profession’s pretensions of public interest. Ordinary Canadians get it – they just lack the power and capability to do anything about a profession that is entirely self-regulating and accountable only unto itself.  

And, for all the fine words and noble pronouncements by the mutually-esteemed members of the Club, ordinary Canadians also know that the legal profession protects its own above all else. It’s only natural. That’s why we have independent civilian oversight of the police and an independent Special Investigations Unit in Ontario to investigate serious police misconduct. It’s about the public trust, and the public interest.

But the legal profession in Canada has no such independent oversight, and therefore the profession and many of its members behave accordingly – just as the police once did before independent civilian oversight.

Everyone’s ‘bad lawyer’ story ends the same way

People read news articles such as the Toronto Star’s ‘Broken Trust‘ series that showed how the Law Society of Upper Canada covered up and whitewashed hundreds of cases where lawyers committed criminal offenses against their clients. Every day all across Canada, ordinary people share their own ‘bad lawyer’ experiences with family, neighbours and friends. Who doesn’t have at least one personal story, or know a victim?

The vast majority of these shared stories end the same way – with the legal profession and the courts circling the wagons and failing to hold bad lawyers accountable to any reasonable standard.

Ordinary Canadians and legal professionals themselves know that lawyers can usually get away with murder because the regulating law societies, the profession and the courts bend over backwards to avoid holding fellow members of the Club accountable.

Ontario’s legal profession ignored threats to rape and murder my witnesses – because forensic evidence implicated personnel from a major Bay Street law firm.

For instance, consider the case of Miller Thomson LLP and Toronto lawyer Andrew Roman, and how Miller Thomson management, the legal profession and the Law Society of Upper Canada ignored proven criminal acts by Miller Thomson personnel.

The law firm’s management and the law society whitewashed the whole episode. They did this because they had the power to do so and were accountable to nobody except themselves.

The evidence is solid and is available for download here on my website. Readers are invited to examine the evidence and to make up their own minds. Miller Thomson LLP, Andrew Roman, Iain Deane and the Law Society of Upper Canada have not replied to my invitations to comment on the evidence and my articles. Neither have they chosen to launch legal challenges about the veracity of what I have written.

Some of my witnesses in the Nelson Barbados Group Ltd. vs. Cox et al Ontario civil case received hundreds of anonymous threats via the internet, including threats to murder and rape my witnesses, and to burn down their business. An independent forensic investigation showed that some of the anonymous threats and harassment originated from the computers of the Miller Thomson LLP law firm in Toronto, Canada.

Here are some examples of the hundreds of anonymous internet messages sent to my witnesses in Florida and Barbados; including to an 82 year old woman, her daughter and other family members and friends:

“BITCH.
We will kill you while you are asleep. Lock your doors and windows real good.”

“I see you as an embittered, vengeful, 82 year-old liar, stupid enough to espouse the desires of a venal Canadian backer, the pawn of totally incompetent counsel and of stupid and revenge-driven children.”

“KILL rasshole Adrian… RAPE rasshole Margaret…”

“Thus, in addition to the potential and probable financial ruin brought to yourself and your children, you (and they) will be branded, at worst, as vindictive liars and cheats and, at best, as credulous cretins.”

“I’d be glad to slice open your little white neck, you foolish goose.”

“Now, what happens if you die before the matter is resolved (as, at your age, you may) and before any of these actions commenced by you have been adjudicated?”

“Please understand when i write the following that i’m sane, 100% in control of myself. Pay some from a neighbor island to come here and kill them all. Enough with the talk, make these people pay.”

“I do not know why you did not cut a deal when you might have been able to do so – as, if the Respondents were MY clients, I certainly would not allow them to entertain any deal with you now.”

See Anonymous online threats against 82 year old widow originated from Miller Thomson Law Office

Both Miller Thomson LLP and the Law Society of Upper Canada are well aware of these vile messages to my witnesses and the strong forensic evidence that proves many of them originated from the computer network at Miller Thomson LLP in Toronto.*

As well, Miller Thomson lawyer Andrew Roman sent a threatening letter to one of my witnesses, and in return was strongly cautioned that he had broken the law and should cease threatening my witness.

“Our client, Kathleen Davis, has asked us to respond to your email with a letter attached, dated April 13, 2010. Be advised that your communication is in violation of several Florida laws. First, due to the fact that it is threatening, and another example of the harassment she has had to endure commencing in 2004, originating from your law firm. Secondly, knowing she is represented by counsel, you are prohibited from directly communicating with her…

You and your firm need to cease and desist from harassing or contacting our client. All future communication is to be addressed to me.”

Letter to Miller Thomson LLP lawyer Andrew Roman, from Florida law firm Broad and Cassel (pdf here)

Further, Mr. Roman’s client Iain Deane published an article on the internet explaining that Andrew Roman delivered legally privileged documents to his client, Iain Deane, and suggested that Deane should publish the documents on an anonymous website known for threats and harassment against court witnesses. (See Miller Thomson LLP client claims lawyer Andrew Roman suggested publication of privileged documents on anonymous website)

Miller Thomson LLP management and the Law Society of Upper Canada were made aware of all of the above. The law society did not launch an investigation and did not preserve or seize the Miller Thomson computer network records that would identify the specific MT personnel responsible for the anonymous online threats to my witnesses.

Apparently, the Law Society of Upper Canada protects members of ‘the Club’ such as major Bay Street law firms and lawyers, even when they commit criminal offenses. That’s nothing different than is documented in the Toronto Star’s Broken Trust series.

Mine is just one story among thousands of similar experiences by ordinary Canadians.

Professor Macfarlane is correct: It’s not the people in the legal profession who are the problem. It’s what the profession has become.

Change will have to come from within the legal profession because ordinary Canadians cannot directly change an unaccountable profession that is a law unto itself.

The legal profession is full of good people, at every level. Smart people. Many who entered the profession because they cared deeply about ordinary people, and at least in the beginning, really cared about understanding their needs.

But each lawyer gets battered and buffeted and ultimately reshaped by the norms of the profession that places privilege over public interest, righteousness over understanding, expertise over a journey of learning, and status above everything.

The bridge across the chasm separating the legal profession from ordinary Canadians is deep, courageous introspection.

The antidote to being stuck in old patterns is accepting that we need a new way of thinking about the work that we can do to enable us to truly relevant, effective, significant allies for those who need us.

The antidote to despair is action.

Read Julie Macfarlane’s full article at the National Self-Represented Litigants Project

Photo of Julie Macfarlane courtesy of NSRLP.

Once again, I invite Miller Thomson LLP, Andrew Roman, Iain Deane, the Law Society of Upper Canada or anyone to clarify any inaccuracies in this story or elsewhere on DonaldBest.CA. I welcome all submissions, documents, evidence, replies or explanations and will post them on this website upon receipt.

* Not all the anonymous messages are proven to have been sent from Miller Thomson LLP. There were hundreds of threatening online messages sent to my witnesses, family members and other involved persons. Their IP numbers and origins are noted in various documents filed with the courts, as indicated in the web postings on DonaldBest.ca. Of the examples in the section ‘Anonymous threatening messages sent to witnesses’, numbers 2, 4, 6 and 8 are proven to have originated from Miller Thomson LLP’s Toronto office.