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The debate over whether law firms and lawyers should give political donations — no matter how small the amount — is heating up in the wake of two recent cases.

When a prominent Quebec lawyer angrily resigned from a provincial inquiry in June, it was the second time in two months that a maelstrom over political donations swept a special prosecutor out of a job. In both instances, the media and opposition political parties strongly suggested that the counsel’s past political donations impugned his impartiality. Others argue that such suggestions are utter nonsense.

“How large a hair shirt must we wear,” says Bob Rae, a lawyer, former Ontario premier and now Liberal MP. “We’re living in an age of hypersensitivity — it’s nutsy.”

In May, Vancouver lawyer Terry Robertson resigned as a special prosecutor investigating alleged election improprieties by then Solicitor General Kash Heed after it became widely known that Robertson’s firm had contributed $1,000 to Heed’s 2009 successful rookie election campaign. Soon after B.C. Liberal premier Gordon Campbell brought the former West Vancouver police chief into his cabinet, Heed became embroiled in controversy. Earlier this year, the government asked Robertson to investigate the alleged election campaign dirty tricks.

At the time, Robertson, a Harper Grey LLP partner, knew this his firm had made the $1,000 donation, but felt that the transaction did not impinge on his neutrality. Robertson, who does not belong to a political party, had been conducting special prosecutions since 1994, including a 2001 investigation that led to charges against a Liberal MLA.

In the event, Robertson cleared Heed, but approved charges against two of his senior campaign workers. The next day, a senior provincial justice official, upon learning of the donation, telephoned Robertson to express concerns about how the public might view the relationship between the financial contribution and the special prosecutor’s decision not to proceed against Heed. Robertson immediately stepped down.

Meanwhile, one month later, chief prosecutor Pierre Cimon felt forced to resign from a Quebec inquiry into alleged Liberal party political interference in the nomination of judges. Cimon, over a five-year period, had made five separate donations to the Liberal party, ranging in amounts of $250 to $750. Cimon had told the inquiry chair, former Supreme Court of Canada Justice Michel Bastarache, about the contributions, and neither man considered them an impediment.

But the opposition had a contrary view, and Cimon came under public attack within a week of his appointment. Declaring himself non-partisan, the Quebec City lawyer with four decades experience decided that he could not continue as chief prosecutor. “The climate was unbearable,” he said. “It was impossible, given everything that was said, to work in peace and conduct a major investigation. We cannot do an inquiry like this while always being suspected of partisanship.”

While Cimon felt wronged, Robertson felt the need to apologize. The Vancouver lawyer said that he agreed that his firm’s donation presented a serious public perception issue. “It is clear now that I should not have accepted this assignment,” Robertson said afterwards. “For that, I am truly sorry.”

Harper Grey went one step further, halting all political donations as a result of the imbroglio. It also returned Robertson’s fees. “Harper Grey recognizes the public concern and seriousness of the…matter,” the firm said in a statement. “We regret that the action of one of our firm’s partners has initiated concerns regarding the special prosecution process.” It added, “The work should not have been taken on.”

Such a view is gaining some traction. In a recent column on legal weblog Slaw, Doug Jasinski questions whether law firms should continue with political donations. From a marketing perspective, the former lawyer, now ad agency principal, says the answer is probably no, given the increased public scrutiny of — and lack of trust in — the legal profession.

“The risk/reward ratio for law firm political donations is frequently too high to make it a prudent marketing strategy,” Jasinski argues. “Firms interested in pursuing government-related work of any kind need to be both completely transparent and utterly pristine in their dealings with public bodies and political organizations.

“Campaign contributions muddy the waters, and where mud exists, mud-slinging is sure to follow.”

University of Ottawa law professor Stephane Émard-Chabot also urges caution when law firms dip their toes in political waters. Given the close nexus between lawyers and politicians, he says both groups must exercise special caution in their relationships. “Lawyers are highly represented in the political class,” says Émard-Chabot, a former Ottawa city councillor and a former practising lawyer. “The links are always there; adding a financial aspect makes it even more complicated.”

As a result, he says law firms, as business entities closely associated with the administration of justice and political parties, should abstain from making political donations, even though they are largely a matter of public record. However, Émard-Chabot adds that individual lawyers should be free to make political contributions as long as they are transparent.

“Maintaining integrity is the most important thing, both for the legal profession and the politicians,” Émard-Chabot says.
“Right now, there is close to a crisis of confidence in both groups. It hurts every time that a law firm is seen to be influencing and joining the network of power. And there is a compounding effect. People say, ‘Oh, there they go again.’ ”

He adds: “Projecting a clean image is more important than the ability to raise funds from law firms. Everything that can be done to lower raised eyebrows is well worth it.”

Nevertheless, he acknowledges that the amounts of money involved, by legislation, are so small that political donations are unable to achieve any influence. Because of these legal limits, “the gain to politicians is small while the loss to lawyers — and politicians — is large.”

Not necessarily, says Dean of Osgoode Hall Law School of York University Lorne Sossin. For him, the key is transparency, not the donation itself. Referring to the B.C. situation, Sossin says: “Nobody would believe that a $1,000 contribution by the firm would jeopardize the special prosecutor’s impartiality. But there is an appearance of impartiality.”

He faults law firms for generally not having in place better procedures to let their members know about gifts, whether to a charity, a politician or a political party, so that individual lawyers can be aware of potential conflicts of interest. “The current situation of little internal disclosure is not sustainable,” says Sossin, who is also  director of the law school’s Centre for the Legal Profession, established in part to examine ethical and professional issues. “The law firms have to get out of donations or become more transparent.”
Clearly, he favours the latter approach. “We should not begin with the premise that all donations are evil,” Sossin says. “If donations stopped, the political system would cease to function.”

Instead, in the case of a special prosecution appointment, he suggests that both the government and the lawyer should be aware of any donation. Explains Sossin:

“The key to disclosure is that both sides at the outset can consider whether the relationship is proper. It should be discussed and perhaps even given to a third party to assess. Then, if the assignment goes ahead, the parties can say the potential conflict was known and investigated before proceeding. That’s impossible after the fact.”

Joining Sossin on the pro-law-firm donation side is Tim Murphy, a partner at Macmillan LLP in Toronto and chief of staff to former prime minister Paul Martin. “There is virtue and value in making political donations,” Murphy says. “Firms and individual lawyers have a responsibility to participate and contribute to the political process, especially in the legal context where we, as lawyers, are the interpreters and arbiters of rules as they apply to the public.”

Noting that lawyers and their firms are also members of the community, Murphy says they should demonstrate their commitment to society by participating in community events, including those that involve donations such as political fundraisers.

As for ethical and conflict-of-interest concerns, Murphy says the public has overreacted. “If I am asked to be an independent prosecutor and I had made a personal contribution, that suggests a connection,” he says. “But if one of my partners individually or the firm gives money, then reality has nothing to do with perception.”

He adds, emphatically, “Because people have a gross misconception about how the system works, it’s an astounding thesis that others should base their behaviour on that gross misconception.”

Rae agrees. “The pendulum has swung too far. The amounts are so trivial that they can’t buy influence, yet you can’t run an election campaign without money.”

Meanwhile, the British Columbia government has appointed a new special prosecutor to investigate Heed, and questions are being raised about seven other special prosecutors who either made personal donations to the Liberal party or work at firms who gave. Everyone seems to be examining their donation practices. Says Doug Buchanan, a partner at Davis LLP in Vancouver, one of the province’s leading firms: “We are alert to the issue and are considering it.”