Historians may question the origin and the history of the oft-repeated statements about the honour and integrity of the legal profession, but it cannot be denied that the relationship of solicitor and client is founded on trust. That fundamental trust is precisely why persons can and do confidently bring their most intimate problems and all manner of matters great or small to their lawyers. That is an overarching trust that the profession and each member of the profession accepts. Indeed, it is the very foundation of the profession and governs the relationships and services that are rendered. While it may be difficult to measure with precision the harm that a lawyer’s misconduct may have on the reputation of the profession, there can be little doubt that public confidence in the administration of justice and trust in the legal profession will be eroded by disreputable conduct of an individual lawyer. (paragraph 10)
7. F.M. Christensen, Pornography: The Other Side (New York: Praeger, 1990).
8. See Deborah Tetley, “Prof dismisses uproar over book on porn,” Calgary Herald, 2 April 2001, B2.
9. Donna Laframboise, “Scandal taints fathers’ rights group,” National Post, 17 April 2001, A8.
10. Quoted by Donna Laframboise, “Dispute erupts at rights group for fathers,” National Post, 30 March 2001, A5.
11. Nova Scotia Barristers’ Society v. Pavey, [2001] L.S.D.D. No. 3. Pavey’s appeal to the Nova Scotia Court of Appeal was dismissed with costs to the society. See Nova Scotia Barristers’ Society v. Pavey 2001 NSCA 165.
12. Andrew Pavey, interview by Philip Slayton, Vancouver, 24 November 2005.
13. Law Society of Upper Canada v. Joseph, [2003] L.S.D.D. No. 34.
14. Law Society of Upper Canada v. G.N., [2003] L.S.D.D. No. 41
15. The sex-ban rule proposed in Ontario appeared to be modelled on the American Bar Association’s Rule 1.8(j), adopted in 2002, which provides that “a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.” The weight of opinion in the United States seems to favour such a ban (more than twenty states have flat prohibitions), although a ban has received far from universal support and different states have taken different approaches. The California rules are vague, forbidding “coerced” sex. New York only bars sex in domestic relations cases. Some states—Nevada, for example—have refused a ban. (“Adults are adults,” said the chairman of a Nevada committee that considered the matter.)
16. See Kirk Makin, “Lawyer disbarred for sexual harassment,” The Globe and Mail, 2 July 2004, A7.
17. See Michelle MacAfee, “Lawyers reject new rules restricting sex with clients,” The Globe and Mail, 16 August 2004, A1. See also Kirsten McMahon, “CBA delegates reject guideline on romance with clients,” Law Times, August 2004, and Peter Worthington, “Lawyers’ ‘dirty little secret,’” Toronto Sun, 17 August 2004.
18. The commentary, on rule 2.04(3) of the Professional Rules of Conduct, dealing with the avoidance of conflicts of interest, now reads:
If a lawyer has a sexual or intimate personal relationship with a client, this may conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client. Before accepting a retainer from or continuing a retainer with a person with whom the lawyer has such a relationship, a lawyer should consider the following factors:
a. The vulnerability of the client, both emotional and economic;
b. The fact that the lawyer and client relationship may create a power imbalance in favour of the lawyer or, in some circumstances, in favour of the client;
c. Whether the sexual or intimate personal relationship will jeopardize the client’s right to have all information concerning the client’s business and affairs held in strict confidence. For example, the existence of the relationship may obscure whether certain information was acquired in the course of the lawyer and client relationship;
d. Whether such a relationship may require the lawyer to act as a witness in the proceedings;
e. Whether such a relationship will interfere in any way with the lawyer’s fiduciary obligations to the client, his or her ability to exercise independent professional judgment, or his or her ability to fulfill obligations owed as an officer of the court and to the administration of justice.
19. Law Society of Upper Canada v. Neinstein, [2005] L.S.D.D. No. 3.
20. On the issue of witness credibility, the appeal panel said: The [Hearing] Panel engaged in a credibility contest. In so doing, it erred.
The two-step approach adopted by the Hearing Panel promotes the “either/or” approach: If the member is believed, the particular is dismissed. If he is disbelieved and the complainant’s evidence meets the standard of proof, there will be a finding of misconduct. The trier is not directed to examine any other possibility.
In particular, the Hearing Panel’s … method fails to direct the panel to consider the third alternative: if the trier disbelieves the member, does the member’s evidence nonetheless prevent the trier, in the context of the whole, from finding clear and convincing proof?
When a decision on credibility can result in the “professional death” … of the member, it is imperative to avoid the “oft-repeated error” of the either/or approach.
21. On adequacy of reasons, the appeal panel said:
The very length of the reasons, at first blush, suggests that they are adequate. However, a more careful review of their content reveals otherwise. While they contain a lengthy review of the evidence, there is little or no analysis of it. Nor is the basis of the Hearing Panel’s decision meaningfully enunciated. There is minimal discussion of the material conflicting evidence.
22. In 2006, prominent Ontario lawyer Peter Budd was found guilty of two criminal charges of sexual exploitation involving two teenage sisters—see R. v. Budd, 2006 CanLII 16541. The sisters were not Budd’s clients. Justice Little of the Ontario Supreme Court, in his judgment, described what happened:
The accused, the separated father of three boys, swept into the lives of the D. family in the late 1990s when he purchased a hobby farm in Napier near the D. family farm in K.[…], Ontario. The D. women, mother D.D. and daughters M.D., A.D. and K.D. were wowed by this charismatic, exuberant, high energy, generous, big city lawyer, his financial and career success, and his partying lifestyle.…
The accused worked his way into being an integral part of the D. family life. He hired the girls to work for him and his firm; he attended family functions and M.D.’s high school graduation; he encouraged the D.’s to purchase a cottage near his; he advised the girls on their career choices; he commiserated with them, and advised them when they had problems and he entertained them. He took them off the farm.…
He became a confidant and friend. They all looked up to him and admired him for his personality, kindness, success and wealth.
He made his residence in Toronto available to the D.s. He introduced the D. daughters to big city life. And he slept with all of them when they were over 14 and not yet 18.
23. Cristin Schmitz, “Affair with client lands lawyer in hot water,” Ottawa Citizen, 11 September 2006, A3
24. Cristin Schmitz, “Law Society of Upper Canada investgates former Treasurer,” The Lawyers Weekly, 15 September 2006, www.lawyersweekly.ca (accessed 15 September 2006).
25. Kirk Makin, “Ex-head of law body faces conduct review,” The Globe and Mail, 14 September 2006, A14.
26. Nancy J. Moore, “Sex with a client: Always a violation?” American Bar Association, GPSolo Magazine, October/November 2002.
27. James A. Hodgson, interview by Philip Slayton, Toronto, 29 January 2004.
28. The analogous rule for the medical profession has been very clear for some time. In 1992 the College of Physicians and Surgeons of Ontario adopted, as part of a policy with the coy title “Physician-Patient ‘Dating,’” a guideline that says “sexual relationships between doctors and patients during treatment are prohibited.” Other guidelines in the policy address the issue
of sexual relationships after treatment is over.
Eight: An Ordinary Man
1. I interviewed Agnew Johnston, in Thunder Bay, on January 10 and 11, 2005, and also had an email correspondence with him.
2. Henry Hess, “Police probe Crown lawyer,” The Globe and Mail, 21 June 1994, A8.
3. Ian Scott, interviews by Philip Slayton, Toronto, 20 September 2004, 19 January 2005.
4. Estanislao Oziewicz, “Thunder Bay lawyer’s trial shrouded in mystery,” The Globe and Mail, 7 October 1995, A1.
5. R. v. Johnston, [1996] O.J. No. 2882. See paragraph 23 of the judgment.
6. Agnew Johnston, “Update,” email message to author, 19 December 2005. In December 2005, Lichtenfeld was found guilty of obstructing justice in an unrelated incident, and was put under house arrest for twenty months. Ian Scott prosecuted Lichtenfeld.
7. Four years later, Justice Labrosse, in the judgment of the Ontario Court of Appeal that dismissed Johnston’s appeal from his eventual conviction, described what happened that June afternoon:
Mr. Ross … advised the trial judge that he was in an extremely difficult position with his client on this motion, as a result of third-party representations. He said he had a conflict between his own personal position and that of his client, and that his client was aware of his difficulties. He could only speak of generalities and was not in a position to disclose the nature of the conflict. He had sought advice from many sources and wished to seek more advice from senior counsel. He wanted the motion adjourned to July 2, 1996 (the date set for the trial). (paragraph 15)
The Court of Appeal found that the conversation between Judge Sargent and Ross gave no appearance of unfairness or of an attempt to interfere with the conduct of the defence. R. v. Johnston, [2000] O.J. No. 3539.
8. John Ibbitson, “Prominent citizens linked to prostitution: A well-known Crown attorney in Thunder Bay, Ont., has been charged with soliciting the sexual services of juveniles,” The Vancouver Sun, 5 July 1996, A4.
9. Alfred Petrone, interview by Philip Slayton, Thunder Bay, 12 January 2005. Johnston said of Petrone, “I worked for Alf for twelve years before I went to the Crown’s office. He is my mentor, my trusted friend. He knows what happened.”
10. See note 7.
11. Law Society of Upper Canada v. Johnston, [2001] L.S.D.D. No. 59.
12. Law Society of Upper Canada v. Johnston, [2003] L.S.D.D. No. 21.
Nine: A Lonely Time
1. I first wrote about this story in The Globe and Mail. Philip Slayton, “Lust and the law,” 24 July 2004, F2.
2. All quotations from Dennis Cann are from an interview with the author, North Battleford, Saskatchewan, 25 May 2004.
3. All quotations from Michael Bomek are from interviews with the author in Prince Albert, Saskatchewan, on May 24 and 25, 2004.
4. (Toronto: McClelland & Stewart, 2005). In a Canadian Press interview, Siggins described her book as “a white guilt book.… The slant was very, very pro native person.… I don’t find balance is very interesting.” On Bomek, she said that “he is a modern day symbol of so many things that happened to the good people there.” See The Chronicle-Herald (Halifax), 21 August 2005, “The NovaScotian/Books,” 13.
5. 3. And at 286: “Once again a white man in authority, who had something valuable to offer, has instead transgressed. Bomek must now join the long line of fur traders, missionaries, teachers, judges, social workers, police officers, bureaucrats, and politicians who imposed their will on the Rock Cree and did incalculable damage in the process.”
6. Leslie Perreaux, “Victims recall horror of attacks by sex predator: Crown seeks dangerous offender status for rapist,” The StarPhoenix (Saskatoon), 14 September 2000, A7.
7. Lois Burke, telephone interview by Philip Slayton, 19 August 2004.
8. Arnold Goodman, telephone interview by Philip Slayton, 2 September 2004.
9. Bomek v. Bomek, [1983] M.J. No. 96.
10. Law Society of Manitoba v. Greenberg, [1998] L.S.D.D. No. 93.
11. In June 2004, a Saskatchewan government commission concluded that racism in police services is a major contributor to the environment of mistrust and misunderstanding that exists in Saskatchewan. The commission reported that it heard many complaints of abusive treatment of First Nations and Metis people at the hands of municipal police officers and members of the RCMP, including complaints of police abuse in the detention areas of police facilities. See “Legacy of Hope: An Agenda for Change,” Final Report from the Commission on First Nations and Metis Peoples and Justice Reform, 21 June 2004, Chapter 5.
12. The disbarment proceedings were in Winnipeg on March 23, 2004. The author attended. See Law Society of Manitoba v. Bomek, [2004] L.S.D.D. No. 17.
13. See Law Society of Manitoba v. Bomek, [1994] L.S.D.D. No. 2, and Law Society of Manitoba v. Bomek, [1994] L.S.D.D. No. 139.
14. Law Society of Manitoba v. Bomek, Discipline Digest, Case 02-01.
15. Gavin Wood, telephone interview by Philip Slayton, 4 August 2004.
16. Lore Mirwaldt and Scott Gray, telephone interview with both by Philip Slayton, 4 August 2004.
17. “Accused of sex crimes, former lawyer sits in jail,” www.cbc.ca/sask/story/bomek051109.html (accessed 10 November 2005).
18. Jonathon Naylor, “Disturbing new charges have been brought against former Flin Flon lawyer J. Michael Bomek,” The Reminder, 21 November 2005.
19. Jonathon Naylor, “Mr. Bomek,” email message to author, 9 November 2005.
Ten: Coal Miner’s Son and Rock Solid Guy
1. From the poem “Cape Breton,” by Elizabeth Bishop.
2. Michael Greenberg, “Freelance,” The Times Literary Supplement, 29 July 2005, 14.
3. Nova Scotia Barristers’ Society v. Matheson, [1998] L.S.D.D. No. 7.
4. Rachel Brighton, “Why did he do it? Glace Bay struggles to figure out its disgraced MLA,” The Daily News (Halifax), 21 June 1998, 7.
5. Hansard, 5 June 1998, www.gov.ns.ca/legislature/hansard/han57-1/h98jun05.htm (accessed 2 July 2005).
6. “House no home for Matheson,” The Daily News (Halifax), 8 June 1998, 11.
7. See note 4.
8. Cathy Nicoll and David Rodenhiser, “Matheson introduces bill to deal with likes of him,” The Daily News (Halifax), 30 June 1998, 5.
9. David Rodenhiser, “‘I’m going to sit through this session’: Disgraced Matheson gets rough welcome,” The Daily News (Halifax), 16 October 1998, 5.
10. Tera Camus, “Jobs, Matheson hot topics in C.B. East race,” The Halifax Chronicle-Herald, 10 July 1999.
11. Saccary v. Wilson, 2000 CanLII 2613.
12. The Daily News noted that Matheson was the first MLA to face criminal charges since the eighties. In October 1986, Billy Joe MacLean, a former Nova Scotia cabinet minister, pleaded guilty to uttering forged documents. In February 1986, Port Hawkesbury lawyer and MLA Greg MacIsaac was convicted on eleven counts of fraud. Billy Joe MacLean is now mayor of Port Hawkesbury. Port Hawkesbury is in Cape Breton. Cathy Nicoll, “Cape Breton East MLA faces 12 charges,” The Daily News (Halifax), 17 December 1998, 3.
13. R. v. Matheson, [2001] N.S.J. No.195.
14. Donald F. Ripley, Bag Man: A Life in Nova Scotia Politics (Toronto: Key Porter Books, 1993), 1. In Chapter 24 of his book, Ripley tells at length the extraordinary story of establishment Halifax lawyer John Grant, originally from Sydney in Cape Breton, who had been president of Nova Scotia’s Progressive Conservative Party from 1977 to 1983. Ripley writes that Grant “had everything: looks, a good income, a cultured and attractive wife, great kids, and a large expensive home in ritzey south-end Halifax” (188). In the late eighties, Grant came under investigation by the Nova Scotia Barristers’ Society, for reasons that are not clear, and on September 19, 1988, he was found dead from stab wounds in a room in Dartmouth’s Wandlyn Inn. Grant was forty-seven years old. The verdict of the medical examiner was suicide. See also Stevie Cameron, On the Take: Crime, Corruption and Greed in the Mulroney Years (Toronto:
Seal Books, 1995), 298–304. Cameron raises the possibility that Grant was murdered.
15. Kelly Toughill, “Intimate politics allows for some hard truths; In Nova Scotia, voters know their politicians well. So the leaders don’t need to be perfect, or even nice,” Toronto Star, 2 October 1999, 1. Part of Toughill’s article read as follows:
Imagine this: The new Tory minister of education admits she was a needle-craving addict for years, that she has a marijuana conviction, that her life on the seamy side of Halifax cost her custody of her only son, that her heroin habit left her with a lifelong hepatitis C infection.
The reaction? A big yawn and a little sympathy. It was forgotten in a day.
The confession of Jane Purves is just the latest in a series of titillating tales about the misadventures of those who govern this land.
Rookie Liberal MLA Brian “Crusher” Boudreau is in court next week, accused of pummeling his brother in a fight over family land. (The nickname is real—no kidding.) NDP MLA Reeves Matheson was charged with bilking his Cape Breton law clients last year, disbarred and slapped with 12 criminal charges, including theft, fraud and forgery.
NDP leader Robert Chisholm fessed up that he had been convicted of drunk driving in his youth—but only after fibbing about the matter early in this summer’s election campaign. The nomination for one riding was contested by two men who both had drunk driving convictions.
And then there is former Liberal Premier Gerald Regan. You need an abacus to keep track of how many times he has been accused of mauling young girls. He spent six weeks in court last year defending his honour with the costly help of famed Toronto lawyer Edward Greenspan. Regan has not been convicted of anything.
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