LAWYERS GONE BAD
Money, Sex and Madness in Canada's Legal Profession
By Philip Slayton
Viking Canada, 294 pages, $36
More Arts Stories
Lawyers are used to negative views and stereotypes about their profession. All lawyers have been forced to argue at one time or another with those who say lawyers are crooks, liars or greedy money-grubbers. So why did Philip Slayton, a former law-school dean and corporate lawyer, write Lawyers Gone Bad, profiling some of the worst examples of these stereotypes?
The answer may be that his book could more appropriately have been titled The Legal Profession Gone Bad. Slayton uses profiles of more than a dozen different lawyers who have been disciplined by their provincial professional regulators to criticize the profession as a whole. The legal profession's insistence on self-governance, its business-over-values approach and its conservative ways, are all attacked by Slayton in his assessment of his chosen profession. Slayton's critique shows an insider's awareness of the legal profession's most pressing problems.
Despite his harsh view of his profession, though, Slayton tries not to be judgmental toward individual lawyers who, for a variety of reasons, fall from grace. He profiles lawyers from all over the country - from northern Manitoba to downtown Vancouver - and in a variety of practice areas, from big Bay Street firms to a one-lawyer shop in Cape Breton. These stories of human frailty will be interesting for lawyers and non-lawyers alike. Slayton tries to understand the motivation of his subjects, citing the written decisions of various courts and disciplinary bodies, first-hand interviews with many of the lawyers who "went bad" and those affected by the downward spiral of these flawed characters. He has clearly done his research.
The motivations for the questionable decisions made by these lawyers are often puzzling. Greed is rarely their main motivation, since the transgressions don't seem to have benefited them much even before they were caught. Boredom from the often-tedious daily tasks of a legal practice, a relentless desire to be part of the establishment, love or admiration of clients who live on the edge or unexplained madness seem more likely to drive Slayton's subjects than monetary gain.
Part of Slayton's criticism is of the part played by the legal profession in creating these characters. The closed conservative culture of a big Toronto firms, he suggests, made Martin Pilzmaker go to great lengths - including theft, forgery and fraud - to impress his colleagues. The eccentric Pilzmaker joined the staid Bay Street firm Lang Michener with a profitable immigration law practice, but eventually committed suicide after his many illegal activities were discovered. Bob Donaldson docketed well over the accepted standard at Blake Cassels & Graydon (another Bay Street firm) because the more he billed, the more adulation he received, until his practice spiralled out of control and his improper billing practices were discovered.
The accepted view in the profession, that a lawyer should be a zealous advocate for his or her client, allowed many of these lawyers to justify unethical behaviour. But Slayton's main criticisms emerge when he looks at how these lawyers were disciplined. When Agnew Johnson's interactions with prostitutes in Thunder Bay, Ont., implicated other prominent members of the profession, Slayton says, "the Establishment, drawing together to protect itself from lurid accusations, abandoned Agnew and sent him on his way." But when Dan Cooper, a lawyer Slayton says was accepted by the "Establishment," asked to be readmitted to his profession, he was allowed back without an exploration of "why and how he had become a fundamentally different man."
Slayton touches on many of the sacred cows of the legal profession and how they interfere with the pursuit of justice. Simon Rosenfeld and Peter Shoniker, who were found guilty of money laundering, attempted to use solicitor-client privilege to hide what they were doing from the authorities. Slayton clearly thinks others are getting away with laundering and other crimes under the cloak of lawyer-client confidentiality.
Since Slayton is looking only at lawyers who have "gone bad," some of his criticisms of the profession as a whole do not always address the full issue. The profession's reluctance to give privileged information to the government is not about hiding wrongdoing (although that may be an effect), but about protecting a client's basic right to a fair trial. Requiring a lawyer to report a client to the government undermines the legal process at its core: A client needs to believe that his or her information is being given in confidence, without judgment or repercussions.
But times are changing, and Slayton welcomes this. Conrad Black's recent trial included guilty verdicts for a number of lawyers representing the companies involved, despite their defence that they were simply doing their jobs. The Canadian federal government has been trying for some time to require lawyers to report suspicious transactions to catch launderers and the financers of terrorism.
Slayton also thinks the legal profession's insistence on governing itself means that the interests of non-lawyers are often sidelined. A major report by Sir David Clementi in Britain has suggested that non-lawyers answerable to Parliament should have a role in disciplining lawyers. This, he says, would put the interests of consumers at the centre, not just the interests of lawyers, and Slayton thinks these changes should happen in Canada, as well.
Some of Slayton's examples may show that having the government involved in the discipline of lawyers is a good thing, but he doesn't give a fair representation of the complexity of the issue. If politics enters the fray, lawyers doing ethical but unpopular work - defending accused terrorists, for example - could have the threat of discipline hung over their heads as a way to prevent the vigorous defence of their clients.
Not all of Slayton's profiles exemplify larger problems within the profession. His first-hand accounts of some lawyers shed little light on their motivations, apart from confirming their apparent madness, and the details of how they were eventually disciplined made me wonder how else they could have been dealt with.
Slayton clearly did extensive research, and sometimes throws information in unnecessarily. In his account of the investigation of a real-estate fraud by the Law Society of British Columbia, we learn that the executive director who was involved in the investigation later resigned for unrelated reasons (an alleged conflict that did not result in any discipline). This tidbit interrupts the narrative flow and seems only to highlight the fact that the B.C. law society had a bad year. In other parts, we get conclusions about lawyers' motivations before we have a chance to read what they did.
Lawyers Gone Bad is being met with anger and frustration from many of Slayton's fellow lawyers. This is understandable, since most lawyers are not crooks, liars or money-grubbers. But what all lawyers need to think about, Slayton is saying, is a better way to deal with the members of the profession who do go bad.
Tim Wilbur is a lawyer and the managing editor of The Lawyers Weekly.
8