When big law firm lawyers won’t say ‘No’ to unethical demands from major clients

Canadian Bar Association’s Ethics Forum underlines why ordinary citizens should involve themselves in the discussion. Legal Ethics are too important to be left to the legal profession alone.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

In life and in legal practice, sometimes making an ethical decision is simple, even easy. Other times, doing the right thing, no matter how carefully considered, seems to be an impossiblity given all the circumstances.

In any profession the laws, practices, technologies and societal expectations are constantly changing in ways that make new difficulties for anyone trying to behave ethically. While I’m sure that plumbers and ceramic tile installers have their ethical concerns and codes of conduct, I think you’ll agree with me that along with medicine, the practice of law is probably one of the most difficult professions when it comes to the challenge of behaving ethically.

The Canadian Bar Association’s Ethics Forum is coming up on March 7, 2016. I won’t be attending but I just might next year after my book is published, because the one thing that seems to be missing at these conferences is the perspective from outside of the legal communities.

While some lawyers may not appreciate independent civilian involvement and oversight of the legal profession, virtually all ordinary Canadians I’ve spoken with agree that laws and the practice of law are far too important and foundational to our society to be left to lawyers alone.

The list of speakers and moderators at this year’s Ethics Forum includes many of the ‘Who’s Who’ leaders in the area of legal ethics. Malcolm Mercer (McCarthy Tetrault LLP) and Alice Woolley (University of Calgary) are the co-chairs. Dr. Steven Vaughan (University of Birmingham) will deliver the keynote speech.

Other panelists and moderators include:

  • Brent Cotter, University of Saskatchewan
  • Elaine Craig, Schulich School of Law
  • Adam Dodek, University of Ottawa
  • Allan Fineblit, Thompson Dorfman Sweatman LLP
  • Charles Gluckstein, Gluckstein Personal Injury Lawyers
  • Stephen Goudge, Paliare Roland LLP
  • Julia Holland, Torys LLP
  • Gavin Hume, Harris & Co
  • Jasminka Kalajdzic, Windsor Law School
  • Darrel Pink, Nova Scotia Barristers’ Society
  • Stephen Pitel, Western University
  • Amy Salyzyn, University of Ottawa
  • Noel Semple, Windsor Law School

Although I won’t be attending this year, I do have an ethical question for the panels to consider, especially in light of the topic of Dr. Vaughan’s keynote address about the too-cosy relationships between large law firms and some major clients:

Example Situation: A Large Law Firm lawyer acts unethically. Should the law firm refund the client’s payments for ‘work done’?

And just to make it interesting for the discussion panels at the Ethics Forum, the following example is real, and involves one of the law firms (but not the lawyers) participating on the panels:    Read more

Guest Column: How one self-represented litigant lost in court, but won the larger battle

Reader ‘John” reminds us that ‘Justice’ can sometimes be won outside of court

I have seen one self represented litigant actually win, but in the court of public opinion after the case was tossed for a technicality in filing.

In 1995 or thereabouts Leonard Earl St. Hill represented the Scotland District Association against the Attorney General and Prime Minister of Barbados.

Mr. St. Hill was no lawyer. He appeared before Mr. Frank King and was opposed by the Attorney General.

The Prime Minister of Barbados, as far as the Scotland District Association alleged, acted ultra vires in placing a garbage dump in the National Park on land zoned for the supply of water.

Once the case was lost the Government applied for security for costs of $60,000 BDS if I remember correctly, effectively killing the appeal.

Richard Goddard and others mobilized opposition to the plan to locate the garbage dump in the National Park.

Funnily enough, it happened in Barbados.

Even funnier, the Attorney General was David Simmons, MP for St. Thomas and member of the then ruling Barbados Labour Party.

Simmons caused a storm when he was elevated to the Chief Justice of Barbados in 2001. The Prime Minister was Owen Seymour Arthur.

Both of them and Barbados are known to Mr. Best in his trials.

It is estimated that the Government of Barbados spent in excess of BDS$50 million (US$25 million) trying to mitigate the land slip issues but the springs in the hills above the dump made it into a lake, just as predicted by members of the Scotland District Association.

Twenty years later, no garbage has been dumped there; a victory in the court of public opinion for the Scotland District Association.

It was also a victory for common sense.

Sometimes victories are not won in a court of law and sometimes a loss in court is a win.

This article originally left as a comment by ‘John’ on Advice for self-represented litigants, Part 1: Walking away is sometimes the best decision

Advice for self-represented litigants, Part 2: The Important Rule that most self-represented litigants never learn, or learn too late.

lying lawyers Canada Barbados 5-SANThe Important Rule that most self-represented litigants never learn, or learn too late:

It is an opposing lawyer’s duty in law to deceive and obstruct you.

“Be instantly wary of any advice, suggestion, question or information from opposing counsel. They do not have your interests in mind; quite the opposite.”

For the moment, forget about Civil or Criminal court procedures. You need to know about the lawyers’ Rules of Professional Conduct; because these rules allow lawyers to deceive, cheat, abuse and obstruct the self-represented litigant in ways that ordinary people might consider to be unethical, unfair or unjust.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

The most formidable challenge of being a self-represented litigant (‘SRL’) is that you must play in a game where the complete rules are known only to your opponents and to the referee (who is called ‘the judge’).

There are different sets of rules for different types of cases and different courts. The rules for Criminal proceedings differ so much from Civil procedure that most lawyers hesitate to cross into the other area of practice in all but the simplest cases. I personally saw one of Canada’s most senior and respected criminal lawyers overwhelmed by the Ontario Rules of Civil Procedure in just a few months. He charged me $60,000 for his reputation and then walked away. (And I thought, “If a man with 35 years before the criminal courts can’t figure out the rules of civil procedure, I’m toast.”)

The rules themselves are complex, and are made even more so by normal practice where rules can be bent, avoided and waived under various circumstances. Different courthouses can have different procedural sub-rules where legal documents must be filed a certain way at one courthouse, and another way in the next town.

There is also the reality that some judges routinely allow lawyers to break, bend or ignore various rules; even as the same judges slam self-represented litigants for being unaware of, or breaking, the same a rules or procedures.

And into the middle of all this chaos steps the self-represented litigant; desperately trying to learn enough of the rules and procedures to be effective against opposing counsel who might have 20 years or more appearing daily in the courts.

You don’t even know what you don’t know.   Read more

Advice for self-represented litigants, Part 1: Walking away is sometimes the best decision

Walking on Ice Litigation-private

Self-represented Litigant: “But I have so much invested in this case.”

Me: “You haven’t seen anything yet. You still have a car and a wife. If you continue, both will be gone by Summer.”

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

Not a week goes by that I don’t receive at least two or three long emails from self-represented people who are facing personal disasters and injustices before the courts. Most of the writers tell of years-long legal battles where they started out represented by a lawyer, only to be forced by dwindling finances to take over the case themselves.

I remind them that the legal system is set up so that lawyers normally profit by dragging out litigation, not by winning or settling for their clients in a timely or effective manner.

The writers speak of their surprise in discovering that truth and justice don’t seem to matter to the courts; only the rules of civil procedure matter along with the unwritten rules of the court staff that often change on a daily basis. (Last week a white cover on filed legal documents was fine, this week it must be green, or blue. Double-sided was fine last month, but this week documents must be printed single sided… and on and on.)

While a very few of the writers are clearly unhinged (or have become so after years of obsessively seeking justice that will never happen), the vast majority who write to me are educated, intelligent people who are highly competent in their own professions. Yet, they find themselves struggling and caught up in legal systems designed to serve the needs of the legal profession first, and operated by lawyers and former lawyers (now known as ‘judges’).

Lawyers and judges frequently become angry with self-represented persons, whether their anger is due to frustration or is deliberately summoned to control, intimidate or damage. The system seems designed to allow lawyers to overwhelm and destroy citizens who cannot afford the price of legal counsel; even when the facts dictate that any jury would side with the self-represented litigant.   Read more

Big Law firms’ anonymous internet postings about clients, cases and legal opposition. Part 1 in a new series.

Miller Thomson Computer Crime SAN

“Let’s start with Miller Thomson LLP’s anonymous Internet postings about the National Hockey League Players Association and work up from there.”

Is it ethical for lawyers to anonymously post on the Internet about their cases, clients and legal opponents?

by Donald Best

by Donald Best, former Sergeant, Detective, Toronto Police

Since at least 2004, personnel from Miller Thomson LLP’s Toronto law office made dozens of anonymous Internet postings on Wikipedia.org and other websites; about clients, opponents and others involved in ongoing legal matters. I’ve also discovered that some other Big Law firms similarly made anonymous postings over the years.

But before the public calls upon the Law Society of Upper Canada to investigate, we had better ask “Who will watch the watchmen?”

As an example, my investigations show that in 2009 personnel from the law society themselves posted anonymously on Wikipedia.org about then Osgoode law student Wendy Babcock, a former Toronto sex-worker and political organizer. Babcock later committed suicide in 2011.

This extraordinary information is easily confirmed online by anyone with Internet access.

You’ll be able to confirm everything for yourself after reading this and other articles in the series. (So will investigators from the Law Society of Upper Canada; not that LSUC takes any action against BIG LAW firms like Miller Thomson LLP, but that is a separate issue.)

National Hockey League Players Association

Personnel from Miller Thomson’s Toronto law office anonymously posted on the Internet about the National Hockey League Players Association, former NHLPA Executive Director Bob Goodenow and then NHLPA associate counsel Ian Pulver.

These anonymous Internet postings appear to have been made at a time when Miller Thomson LLP either represented some of the subjects of the articles, or represented other clients in existing and/or potential legal proceedings or negotiations involving the subjects.

Over the years, Miller Thomson law office personnel also made many other anonymous Internet postings about persons and entities involved in legal actions, negotiations and labour disputes. Although their motives are not always apparent, one thing that is clear is that Miller Thomson personnel chose to make these Internet postings anonymously instead of using their real names or attributing the postings to Miller Thomson.

Are MIller Thomson’s actions ethical? Do their actions contravene any rules of the Law Society of Upper Canada?

Lawyers and other law firm personnel deal with privileged, confidential and intimately private information daily. That these same lawyers and staff would anonymously post information online about their clients, cases and legal opponents should be of grave concern to the legal profession and governing bodies because it tends to undermine public confidence in lawyers and thus in the justice system itself.

Forensic investigations revealed the truth about this little-known activity by law firm personnel. Other Big Law firms have been up to the same thing: a coming article in the series will consider anonymous Internet postings by Cassels Brock & Blackwell LLP and some other BIG LAW firms.

Are lawyers and law office personnel allowed to make anonymous Internet postings about their legal cases, clients and opponents?

To the ordinary Canadian, the Rules of Professional Conduct as posted on the website of the Law Society of Upper Canada appear to be so general and vague as to be almost useless as a guide in some of the incidents documented in this series. Other incidents I present in this new series are, however, obviously in violation of the LSUC Rules and of various Federal and Provincial laws as well.

Perhaps some lawyers out there might be able to comment after reading this article and others in the series.

I have identified a number of different types of anonymous internet activities that Miller Thomson and some other Canadian lawyers, law firms and legal personnel appear to be engaged in. In order of increasingly serious conduct:

  1. Anonymously changing the online public record about clients, cases and legal opponents.
  2. Anonymously spreading online rumours, misinformation & discord.
  3. Serious misconduct, including anonymous online threats against opposing witnesses, harassment, posting of confidential information including Identity Information as defined in the Criminal Code.

Once again, all of these activities happen in situations where the subjects of the anonymous conduct are either legal clients or opposing entities. And, in at least three examples I’ve found, personnel from law firms made anonymous internet postings about competing law firms and lawyers.

NHLPA Logo-private

Example #1: Miller Thomson personnel anonymously changed the public internet record about Robert W. “Bob” Goodenow, Executive Director of the National Hockey League Players Association       Read more

IF by Rudyard Kipling

Kipling_If_(Doubleday_1910)-private

Everyone knows the first two lines of Rudyard Kipling’s classic poem, If, as did I.

But it had been decades, perhaps 45 years since I last read it all in Mr. Watson’s class. An old friend recently suggested that I take a few minutes and consider the poem at this end of my life and after spending a few months jailed in solitary confinement on provably fabricated evidence.

Take a few minutes for yourself. Well worth your time.

IF by Rudyard Kipling

If you can keep your head when all about you
Are losing theirs and blaming it on you,
If you can trust yourself when all men doubt you,
But make allowance for their doubting too;
If you can wait and not be tired by waiting,
Or being lied about, don’t deal in lies,
Or being hated, don’t give way to hating,
And yet don’t look too good, nor talk too wise:    Read more

Supreme Court of Canada makes first Tweet; 13 Canadians Tweet back, including me

SCC Supreme Court Canada Twitter Donald Best sml-private

Three hours after the Supreme Court of Canada tweeted its first on Twitter, only thirteen people had tweeted to @SCC_eng

But those who tweeted weren’t shy. Besides sending congratulations and expressing approval at the SCC’s move to improve access to justice, Canadians commented their views about Muslims wearing nicab for citizenship ceremony, that the SCC should move decision announcements from Fridays, charging Harper officials and provide a job for a friend. (I liked that last one.)

Chief Justice McLachlin commended the Court’s presence on Twitter: “Communicating on Twitter forms part of the Court’s commitment to open and accessible justice.  Sharing information about the Court’s work is crucial to its mandate, and Twitter is a useful tool in achieving this objective.”     Read more

Words from the Canadian Superior Court Judges Association… but do they really believe?

Canadian Superior Court Judges SAN

“No one in Canada is above the law. Everyone, no matter how wealthy or how powerful they are, must obey the law or face the consequences.”

Canadian Superior Court Judges Association ‘The Rule of Law‘

by Donald Best

by Donald Best, former Sergeant, Detective, Toronto Police

Time for some honesty and reality

There are times when, despite being over 60 years old and a former police detective, I feel like a naive boy scout to have had the solid faith I once had in our Canadian justice system.

My faith was not blind, but I believed that despite the weaknesses in our system, Canadians could be assured that there were no protected classes, and that no one was truly above the law. I no longer believe that.

In my life as a police officer, I twice said the words “I am arresting you for murder” – a phrase that not many of my fellow Canadians have spoken. Not many police officers have said those words once, let alone twice.

I have arrested police officers, priests, teachers, politicians, judges, nurses, bus drivers and school-aged children for everything from unpaid parking tickets to extortion and murder.

The Privileged Classes

And, rarely over the years, I’ve seen some from the privileged classes walk free from solid criminal charges when there was no logical reason in law for that to have happened. Read more

Smuggled rum bought a farm and truck

Grandfather Best Bootlegger SAN

A Family Confession

by Donald Best

by Donald Best, former Sergeant, Detective, Toronto Police

As we discuss what is ethical behaviour and all the shades of right and wrong, I have a family confession: both my father and his father were bootleggers during the Depression and throughout World War II. Even as a decorated Chief Petty Officer during the Battle of the Atlantic, my father made considerable profits from smuggled rum and canned hams.

It could be fairly argued that smuggled rum and canned hams provided the financial foundation for several successful Best family businesses in Prince Edward Island and Ontario in the late 1940’s and early 1950’s. Indeed, it could also be said that the profits from bootleg liquor kept many a PEI family from starving during the dirty thirties. This, of course, was unbeknownst to the Women’s Christian Temperance Union wives (including my grandmother), who provided meals for the poor at the Freeland Presbyterian Church.

Profits from rum running also repaired the Freeland Presbyterian Church after the 1935 fire. Grandmother and the other womenfolk weren’t aware of the source of the re-construction funds even until they day they died. To this day my dear Aunts have no knowledge of this truth unless they read this post. Some family history is, to now, a male tradition.

The point of all this is that right and wrong, rule of law, ethics and law-breaking are not always a black/white either/or situation. Simple either/or solutions are not always possible in the real world.

That said; is is okay for lawyers to lie to the courts? Is it okay for police officers to illegally accept money from lawyers to work illegally for one side of a civil dispute?

Yes, there are shades of grey… but some behaviours can never be excused or explained away.

Canada’s Top Legal Ethics Stories of 2015

Miller Thomson Computer Crime SAN

Alice Woolley of the University of Calgary Faculty of Law lists her Top 10 Canadian legal ethics stories of 2015:

1. Judges behaving badly
2. Trinity Western University before the courts
3. National competency standard
4. The Supreme Court on money laundering
5. Lawyer advising
6. Truth and Reconciliation Commission
7. Resignation of Quebec’s bâtonnière
8. Regulatory innovation
9. Campaigning in the LSUC election
10. Joe Groia and civility regulation

To Alice’s list I’ll add two more. (You know I couldn’t help myself.)

11. Anonymous online threats against 82-year-old widow originated from Miller Thomson Law Office

12. Ontario Superior Court Justice J. Bryan Shaughnessy secretly increased prisoner’s jail sentence; in a backroom meeting, off the court record, without informing the prisoner.

Donald Best

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