JACQUIE McNISH
From Wednesday's Globe and Mail Published on Wednesday, Feb. 07, 2007 4:00AM EST Last updated on Tuesday, Mar. 31, 2009 10:02PM EDT
A disciplinary panel of the Law Society of Upper Canada set a tough new ethical standard in July, 2004, when it disbarred Toronto lawyer Gary Neinstein for having sexual relations with a client and sexually harassing his secretary.
The ruling marked the first time that one of Canada's provincial law societies disbarred a lawyer for having sex with a client and it sparked a volley of legal appeals that are still before the courts. The most shocking thing about the case, however, remained a closely guarded secret for more than two years.
Keeping the mystery under wraps was George Hunter, an Ottawa family lawyer with Borden Ladner Gervais LLP who rose in 2005 to become the highest-ranking official of the law society and who also happened to chair the panel that stripped Mr. Neinstein of his right to practise law. Last week, Mr. Hunter admitted to the law society that he, too, was having an affair with a client at the very time he ordered Mr. Neinstein out of practise.
The setting for his dramatic admission was a law society hearing on Friday that was initiated when a former client of Mr. Hunter's filed a complaint about pressure tactics he used in an attempt to whitewash their 2 1/2-year affair. After a brief disciplinary hearing, during which letters of support from some of Canada's most prominent lawyers were read, the panel issued a ruling that bore no resemblance to the punishment meted out to Mr. Neinstein, who continues to run a small personal injury practice. Mr. Hunter was suspended for two months from practising law.
"It is extraordinarily different treatment," said Brian Greenspan, a lawyer for Mr. Neinstein, who is currently waiting for the Ontario Divisional Court to rule on an appeal of his disbarment. Mr. Neinstein has been allowed to continue practising law during the appeal.
The vast disparity between the two penalties casts a harsh light on the Canadian legal profession's muddled approach to regulating intimate relations between lawyers and clients.
In the U.S., a handful of states have passed laws banning sex between lawyers and clients, and the American Bar Association adopted a rule in 2001 that prohibits lawyers from having sexual relations with clients unless the affair preceded the legal assignment. The no-sex rules are based on the premise that a lawyer's duty to act in a client's best interests may be put in conflict by a personal relationship. More insidious is that lawyers may exploit their influence to initiate sexual relations with a vulnerable client.
"It's a distinct and unique problem. There are predators in the legal profession. When we know there is a specific problem, we should do something," said Alan Stern, a Halifax-based lawyer with McInnes Cooper LLP, who led a push in 2004 to have the Canadian Bar Association adopt a similar no-sex rule.
The motion, however, was overwhelmingly voted down at the Canadian association's 2004 annual meeting in Winnipeg, after a groundswell of members shouted it down as overly paternalistic.
"I've never understood the resistance," Mr. Stern said. "We need to evolve."
The failed motion left Canadian lawyers with a confusing patchwork quilt of conduct codes and standards applied by provincial law societies that regulate the profession. Only three provinces, Ontario, British Columbia and Nova Scotia, have codes of conduct that address the thorny issue of sexual liaisons between lawyers and clients. But the language of the three provincial codes is so divergent and at times vague that the professional consequences of sexual misconduct with a client can depend on where you live and who you are.
"The law societies have made a mess of the sex issue. . . . There is a lot of confusion, uncertainty and unfair treatment," said Philip Slayton, a former Bay Street lawyer and author of the pending book Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession.
As a consequence, Mr. Slayton said low-profile lawyers such as Mr. Neinstein are "not treated in the same way as an establishment lawyer. George Hunter was treated with kid gloves."
The Law Society of Upper Canada, which regulates Ontario's 36,000 lawyers, moved to clarify the boundaries by amending its professional code of conduct in 2004 to designate sexual relations with clients as a potential conflict of interest. If a lawyer is intimately involved with a client who is emotionally vulnerable or unsophisticated, the code says, the lawyer "should recommend" that the client's consent to the relationship is "informed, genuine and uncoerced."
In simple English, legal experts say, the code means that clients should get outside legal advice about their rights when they become personally involved with their lawyer.
When Mr. Hunter's complicated personal life, which involved a marriage and three affairs, unravelled in late 2005, he pressured his unidentified client in meetings, e-mails and phone calls to sign a document stating that she had been properly informed about her rights during the relationship. Mr. Hunter admitted last week that his client, a divorced mother who was feuding with an alcoholic ex-husband, had not in fact been properly informed.
It was this failure to ensure his client was informed, rather than the affair itself, that prompted the disciplinary panel to rule that Mr. Hunter had engaged in professional misconduct.
That ruling, said Gavin MacKenzie, who replaced Mr. Hunter as treasurer of the law society, is a "demonstration of the adequacy of the current rules." Mr. MacKenzie's position appears to differ from his previous stand.
He was a leading advocate of the no-sex rule at the Canadian Bar Association in 2004, but now he said he "doesn't expect" the governing body of the Law Society of Upper Canada "will revisit this in the near future."
In the absence of clearer rules, some law firms are reviewing whether they should set firmer boundaries internally.
Sean Weir, national managing partner of Mr. Hunter's firm Borden Ladner, said the firm currently requires its 700 lawyers to adhere to the law society's rules when they become intimately involved with a client. However, he said, now that the society has reached a ruling on Mr. Hunter's "unacceptable" conduct, the firm plans to review whether tighter rules are necessary.
The law society's rules are "not as clear as they could be," Mr. Weir said. "They are subject to a lot of interpretation and they probably shouldn't be subject to interpretation."
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