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Lawyers Gone Bad: Eye-opener will rouse overdue debate
reviewed by Stephen Traviss, Financial Post

The public has always been curious when lawyers get into trouble and jeopardize their careers. Philip Slayton, a former law professor, private practitioner and law dean, is the latest author to canvass this topic with his book Lawyers Gone Bad. It's an interesting look at a mix of lawyers who are at the centre of a legal storm. The stories include lawyers who have illegally sustained expensive lifestyles, been convicted of crimes or had sex with vulnerable clients.

Mr. Slayton brings impressive credentials to this exercise and what he says should be of interest to both lawyers and the public.

The cases considered cover lawyers from across Canada in all walks of legal practice, including some who worked in large, corporate-commercial law firms and some who were sole practitioners or in small firms. While the stories provide useful insights into how lawyers go bad, the book still leaves many unanswered questions about why it happens.

The author submits that the environment in which lawyers practise -- for example, big downtown, corporate firms -- creates a setting where they may pretend to be more successful than is the case. What better way to show off their achievements to colleagues than through their billings? This can result in excessive or inflated legal bills being sent to clients.

I agree with his assessment in part, but I am also of the opinion that this difficulty is not exclusively one of a lawyer's own making. Lawyers can easily succumb to the public perception that they enjoy a very high standard of living. However, this is not always the case. So this incorrect impression pressures lawyers to create the illusion they are more financially successful than they really are, and encourages criminal behavior.

This need to show they are successful also leads some to get into business ventures -- sometimes with their clients. It allows lawyers to supplement their income and enhance their professional reputation. Often, however, it is these ventures that cause their downfall and prompt them to behave badly, which leads to professional disgrace and clients losing money.

The book also addresses the contentious issue of lawyer oversight. Currently, the power to discipline lawyers lies with lawyer-controlled entities, known as law societies. Mr. Slayton asks how can we ensure that these bodies guarantee fairness and objectivity?

What he overlooks is that since 1974, there has been nonlawyer involvement, albeit in a minority position, in the disciplinary process. This has helped address the concerns of those who view professions as -- to borrow the words of George Bernard Shaw -- a conspiracy against the public.

Moreover, the law societies are cognizant of the criticism. Take the case involving litigation against the Barreau du Quebec and Christina Finney, who sued arguing that the Barreau was negligent for not protecting her against a lawyer that it eventually disbarred. She won and that case has caused other Canadian law societies to review their own procedures.

In Britain, the picture is different. The author devotes a few pages to a proposal made by a commission chaired by Sir David Clementi, a former deputy-governor of the Bank of England, which calls for exclusive control over lawyer self-regulation to be removed from the Law Society of England and Wales and given to an independent commission controlled by laypersons. There is legislation in the U.K. parliament to implement such a change and it will likely become law by the end of the year. It will be interesting to see what ramifications, if any, this initiative will have in Canada.

Another matter the book touches upon is the task of advising clients. Subject to a small number of exceptions, lawyers are legally required to maintain absolute confidentiality when advising clients. This can put them at odds with what the public generally thinks a lawyer should disclose about their clients, especially if questionable conduct is involved.

To use a current example, this requirement has brought the federal government into possible confrontation with lawyers in its efforts to grapple with money laundering.

The author recognizes the delicacy of this dilemma and is indeed sympathetic to his profession as it seeks to do the right thing for its clients.

Overall, Lawyers Gone Bad is a well-organized, well-written and manageable text that is a welcome addition to the limited literature on lawyer self-regulation. This book will cause more examination and discussion about the issue and that's a positive thing.

*Stephen Traviss is a Toronto lawyer who spent 26 years at the Law Society of Upper Canada as senior counsel. His duties included advising the profession on matters of professional conduct. His current practice includes defending lawyers facing discipline matters.