Lawyers Gone Bad

by Philip Slayton

  In 1995, in Dartmouth, Nova Scotia, forty-nineyear-old lawyer Norman Rose tried to seduce a seventeen-year-old single mother who was his client (she had been arrested for forging a cheque). The suave Rose plied the girl with liquor, flowers, and Kentucky Fried Chicken. He brought vodka, candles, and a pink rose to her apartment, and suggested a “dating relationship” in exchange for legal services. She refused and complained to the Nova Scotia Barristers’ Society. A discipline committee found that Rose, contrary to ethical rules, had requested a dating relationship as a fee, and that he had used inappropriate pressure tactics to try to obtain a personal advantage. In December 1996, Rose was suspended from the bar for thirty days.3

  The unfortunate Paul Adams from Edmonton is still the only Canadian lawyer (as of the end of 2006) to have been disbarred for sexual misconduct with a client. On September 10, 1996, police burst into a room in Edmonton’s Kingsway Hotel and found thirty-four-year-old Adams with a sixteen-year-old prostitute. His pants were down around his ankles. The prostitute was wearing a police recording device (she had earlier been picked up by the police and had told them about her impending date). She was a client of Adams. He pleaded guilty to one charge of sexual exploitation under s. 153(1)(b) of the Criminal Code, which makes it an indictable offence for someone in a position of trust or authority to invite a young person to touch his body, and received a fifteen-month conditional sentence that allowed him to serve his time at home rather than in prison. (The evidence established that he and the girl had not had sexual intercourse.) In October 1997, an Alberta Law Society hearing committee, as it disbarred Adams, said the following: “A professional must be above taking advantage of the client’s feelings and vulnerability and must suppress his own desires … It breaches the trust that underlays a solicitor-client relationship and cannot be tolerated if the profession is to continue to enjoy the respect of the public.”4 The committee thought it irrelevant that the client was a prostitute. Another law society committee,5 and then the Alberta Court of Appeal,6 dismissed appeals from this decision, and the short career of Paul Adams as a lawyer was over. At age thirty-five, the feckless Adams had been a member of the bar for less than two years.

  The story of Paul Adams has a curious footnote. Finished as a lawyer, he went on to a new career as a paralegal, running a business called Affordable Paralegal Services and charging up to $100 an hour for his services. He joined the Edmonton branch of the Equitable Child Maintenance and Access Society (ECMAS), an Alberta volunteer non-custodial parents’ lobby group. At meetings of the group, Adams often handed out business cards showing that he had a law degree. After a while, a quarter of his paralegal clients came from ECMAS. Another member of the Edmonton branch of ECMAS was Ferrel Christensen, an emeritus professor of philosophy at the University of Alberta. In 1990, Christensen published a controversial book called Pornography: The Other Side,7 which he described to the Calgary Herald as a defence of pornography.8 One section of the book is titled “Sex and Young People.” The journalist Donna Laframboise, in a National Post feature article, quoted Christensen as saying that “the idea that sex is bad for young people is at best another self-fulfilling prophesy.… In cultures where they are not prevented from doing so, children begin sexuality, sometimes even coitus itself, at a very early age.”9 Laframboise described Christensen as a dominant personality in the Edmonton branch of ECMAS, and a strong supporter of Paul Adams. Several people she interviewed claimed that Christensen frequently suggested to ECMAS members, persistently and in very strong terms, that they get legal advice from Adams. On March 12, 2001, Adams was elected vice-president of the Edmonton branch of ECMAS. Days later, after a storm of protest about the election to office of a convicted sex offender, he was forced to resign from his new position. He had never concealed his conviction from the group. “Am I forever a pariah?” asked Adams.10

  After the sudden and severe penalty imposed in the 1997 Adams case, disciplinary committees for some years seemed to revert to the gentler and more tolerant days of Ramsey and Rose. Consider the case of Halifax lawyer Andrew Pavey. In July 1997 (according to December 2000 findings of a Nova Scotia Barristers’ Society discipline subcommittee11), Pavey and his client, Lisa Nicholson, together bought crack cocaine (Pavey paid). They spent the next day using the cocaine and having repeated oral sex and sexual intercourse. Pavey, a cocaine user for some time, with a history of psychiatric illness, had become Nicholson’s lawyer in November 1996, and was trying to regain custody of her three children from the Department of Community Services. Lisa Nicholson later told several people what had happened between her and Pavey, and word got around. She was called by a reporter from Frank, a satirical and gossip magazine, but refused to say anything. Eventually, in August 1999, she complained to the barristers’ society. A discipline subcommittee, in a rambling and repetitious judgment, found that Pavey had taken advantage of his client’s vulnerability, and in January 2001 suspended him for eighteen months. In imposing the penalty, the committee referred to the “mitigating factor” of Pavey’s dissociative identity disorder, sometimes termed a “multiple personality disorder,” and described evidence given by Pavey’s psychiatrist, Dr. John Curtis:

  There are five main areas or dissociative orders relating to a dissociative identity disorder. They are amnesia, depersonalization, derealization, identity confusion, and identity alteration. Dr. Curtis testified all five were manifested in Mr. Pavey.…

  Amnesia is the forgetting for “punched-out” periods of time, what one has done. Depersonalization is what is referred to as “an out-of-body experience”.… Derealization is where the person separates from their environment and in a sense distances themselves from that which is stressful. Identity confusion is where the person has many independent states and they are not sure who they are. And identity alteration, is where the person actually changes states, which is what happens when the person has the amnestic episodes.

  When he gave his evidence, Pavey testified that when he was under stress he would “split”:

  Under extreme pressure I would disassociate and become someone else. At the very extreme points of this disorder, my experience was highly compartmentalized, so that what was happening in one area of existence was completely separated from another area of experience. That person who was going out using drugs didn’t give a shit about anything—didn’t care. The other part had to pick up the pieces and did.

  To this day, Pavey denies Lisa Nicholson’s cocaine and sex allegations.12 After he was suspended from the Nova Scotia bar, with his livelihood lost at least temporarily, he moved to Vancouver to live with his mother. “She gave me food and shelter,” he says. He started a mediation practice, married again, and had a daughter (Pavey has grown-up children by a previous marriage). He believes that the Nova Scotia Barristers’ Society, when it dealt with his case, was neither intelligent nor reasonable. “Members of these panels have no real adjudicative experience,” he says.

  They don’t know how to interpret the evidence properly. The panel hearing my case showed me no respect at all, either in the way the proceedings were handled, or in the reasons that were eventually given.… The panel’s reasons were a mess. Lack of respect was inherent in the process. I felt dehumanized and depersonalized.

  Pavey feels that he doesn’t really fit into the legal profession, and that lawyers find him easy to dismiss. He says that’s because he processes information differently than most lawyers; he is not particularly analytical, but rather is intuitive and interested in the big picture. Pavey was reinstated by the Nova Scotia Barristers’ Society in December 2003, but continues to live and work in Vancouver.

  Some might say that Toronto lawyer Mark Joseph got off easy. Called to the bar in 1982, Joseph was retained by “Mary Doe” in December 1994. Doe had been sexually assaulted by another tenant in her apartment building and wanted to sue the landlord. She had a troubled history, suffered from depression, and was receiving a disability pension under the Ontario Family Benefits Act. In March 1995
, Joseph and Doe began a personal relationship, having sex about once a week. Two weeks after they started sleeping together, Joseph insisted that Doe find another lawyer (she didn’t want to do this, believing that Joseph was the only lawyer who could properly handle her case). The two continued to have sex, although less and less frequently, until the fall of 1996.

  In June 1997, Doe made a written complaint about Joseph to the Law Society of Upper Canada. In an agreed statement of facts, Joseph formally agreed with the discipline committee on several points: that his sexual relationship with Doe violated the trust that was fundamental to the fiduciary nature of the solicitor-client relationship, particularly in light of the client’s vulnerability; that it was not the client’s responsibility to understand the dynamics of the solicitor-client relationship and set the boundaries on the sexual or financial interaction between the lawyer and the client; and that he had created a conflict of interest between his responsibility to act in the best interests of his client and his personal interest in having a sexual relationship with her. In November 2003, Joseph was suspended for three months.13 The hearing panel carefully noted that “Our decision … leaves open the broader questions as to whether all solicitor and client relationships are necessarily rooted in inequality and whether all sexual relationships between a solicitor and client constitute a breach of fiduciary duty and a conflict of interest.” The chastened and disingenuous Mark Joseph said that he wished there had been a specific rule governing sex with clients because he had not been aware of the problems that could arise from such a relationship.

  Then there is the case of Toronto lawyer Gary Neinstein. Born in 1942, he became a lawyer in 1970. In November 2003, after hearings that had stretched over fifteen months, a law society disciplinary panel found as facts that he had sex on several occasions in 1990 with a client known as CT, and that he had also behaved inappropriately with CT at other times.14 (The last “inappropriate incident” was said to have taken place ten years before, in 1993. CT waited until 1997 to complain to the law society.) The panel accepted CT’s evidence that she was unable to stop Neinstein’s behaviour because he was her lawyer, she had come from a dysfunctional family, and she was raised to believe that lawyers were persons in authority who were there to provide protection. “She could do nothing,” said the panel, “and thus felt she was vulnerable, humiliated and ashamed.” The panel also found that, in the early nineties, Neinstein had sexually harassed a secretary at his firm (touching, leering, and making sexually suggestive comments and gestures).

  A further hearing was scheduled to consider what sanction should be imposed on Neinstein. It was held in January 2004. That same month, the law society’s professional regulation committee recommended to Convocation, the society’s governing body, that there be an absolute prohibition on sexual relationships between lawyers and clients, with a limited and insignificant exception for relationships that predate the lawyer and client relationship. The committee’s report argued that “the essence and justification for the proposed new rules is the inherent conflict of interest that a sexual relationship presents to a lawyer and client relationship.”15 Perhaps it was not surprising that, in June 2004, following the sweeping recommendations made by the professional regulation committee, the Neinstein sanction panel decided that he should be disbarred. Neinstein immediately appealed, and his disbarment was stayed pending his appeal (the law society opposed the stay). Brian Greenspan, Neinstein’s lawyer, was quoted in the press as saying that the original findings were “inexplicable,” the process of arriving at a penalty was “fundamentally flawed,” and Neinstein’s treatment was “outrageous” and “improper.”16

  And then, just as abruptly, the climate changed yet again. In August 2004, delegates to the Canadian Bar Association’s annual meeting were asked to adopt a complete sex-with-clients ban. The proposed ban was overwhelmingly rejected, following what one newspaper described as “a spirited, and oftentimes jocular” debate. Delegates described the proposal as “paternalistic,” “absolutist,” and “stereotypical.” One delegate, echoing a famous comment by Pierre Trudeau, said, “The Canadian Bar Association and the law societies of this country have no place in the bedrooms of its lawyers.” Another asked, “Who are we to impose a prohibition on falling in love?” Another said, “Wake up, we’re in 2004. Sex is not always bad.… It is possible to have a love affair that’s good.”17

  In October 2004, the Law Society of Upper Canada, no doubt chastened by the profession’s backlash at the recent Canadian Bar Association annual meeting, and following a new and much watered down report by the professional regulation committee, decided that, after all, it would be a mistake to have an outright ban on lawyers having sex with clients. Instead, in a modest move, it adjusted the official commentary on professional conduct rule 2.04 dealing with conflicts of interest.18 In making these cautious changes, Ontario followed the general approach already taken by Nova Scotia and British Columbia, the only other Canadian jurisdictions that explicitly address the sex-with-clients issue. Nova Scotia rule 7(a), in the society’s Legal Ethics and Professional Conduct Handbook, says that “a lawyer has a duty not to act for a client when the interests of the client and the personal interests of the lawyer … are in conflict.” Commentary on the rule says that it is intended to prohibit, inter alia, sexual exploitation by a lawyer in the course of a professional representation. The Professional Conduct Handbook of the Law Society of British Columbia, in a footnote to the general integrity rule, says, “A lawyer must not exploit the relationship between solicitor and client to the lawyer’s own advantage. An intimate relationship between a lawyer and a client, such as a sexual one, may constitute exploitation.”

  The Neinstein case now surfaced again, in a different and more laissez-faire environment. A five-person appeal panel heard arguments in December 2004, giving its decision on February 10, 2005.19 It found that the original hearing panel did not properly instruct itself as to the way in which a witness’s credibility should be assessed,20 and that it failed to give adequate reasons for its decision.21 In particular, the appeal panel found that the hearing panel had imposed an unreasonable penalty:

  The range of activity constituting sexual harassment can be vast: from an unwelcome dinner invitation made by a lawyer to a client or employee, to sexual assault.

  … Sexual harassment is contextual: actions or words may be sexual harassment in one instance, but not in another. What makes behaviour “unwelcome” or “unwanted” in most circumstances, turns on the context in which it occurs and whether, in that context, there was consent to the behaviour.

  The reasons continued:

  The Society, in argument, was asked whether two declined dinner invitations, made by a lawyer to a client … would constitute professional misconduct in which disbarment would be presumed. The Society confirmed that this accurately reflected their position. Given the nature of human interaction, one can certainly envision circumstances when it could be difficult for the lawyer issuing the invitation to discern whether it was “unwelcome” or “unwanted”. In such circumstances, it would be unreasonable to presume disbarment if the unwelcome nature of the invitation was ultimately proven.

  The appeal panel ordered a new hearing in the Neinstein case. The law society appealed this decision to the divisional court, which, in March 2007, ruled that Neinstein was indeed guilty of professional misconduct, but agreed that disbarment was an unreasonable penalty. It would be more appropriate, said the court, to suspend Neinstein for twelve months. Neinstein is appealing his twelve-month suspension.22

  The chairman of the original law society panel hearing the Neinstein case (which decided in June 2004 that Neinstein should be disbarred for sexually harassing a client) was George Hunter, senior partner of the blue-chip firm Borden Ladner Gervais. In June 2005, Hunter was elected treasurer of the Law Society of Upper Canada, and, shortly thereafter, president of the Federation of Law Societies, thus becoming the most powerful representative and regulator of Ca
nadian lawyers. In December 2005, Hunter suddenly resigned both positions, and went on medical leave from his law firm, citing vague family and personal reasons (Hunter is married and has two children). Many rumours circulated, but it was not until September 2006 that journalist Cristin Schmitz broke the story in the Ottawa Citizen: “A respected senior partner of a national law firm … is under investigation by Ontario’s law society after his intimate relationship with a divorced client turned sour.”23 The relationship between Hunter and JH, whom Hunter was representing in a bitter divorce, had lasted at least two and a half years, starting well before Hunter chaired the Neinstein panel. In a later story, Schmitz described a document that Hunter drafted and asked JH to sign in November 2005 without giving her the opportunity to seek independent legal advice (once JH signed, Hunter unwisely confessed to her a number of simultaneous affairs). In this document, JH “acknowledged” that her personal relationship with Hunter had no effect on their professional relationship.24 Kirk Makin, justice reporter for The Globe and Mail, gave details of a notice filed in September 2006 by the law society that led to a disciplinary hearing into allegations that Hunter engaged in professional misconduct:25

  It alleges that Mr. Hunter went so far as to show up at JH’s home to try to persuade her to tell his law partners that he had behaved properly—an unexpected visit that caused JH “concern and emotional distress,” the notice says. Mr. Hunter then launched a phone and e-mail campaign to get her to agree to his request, the notice says.

  It also alleges that during the course of their relationship, Mr. Hunter did not provide JH with competent advice on issues involving access to her daughter and supervision for the child during visits with her ex-husband.

  “You failed to take appropriate action to protect the interests of JH’s daughter after you were notified by JH, on or about June 5, 2005, that her daughter had been injured while in the care of JH’s ex-husband.” The allegations note that throughout their 2-year relationship, JH was “emotionally vulnerable,” yet Mr. Hunter failed to recommend that she obtain independent legal advice.