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In a development that could renew debate about lawyers having improper relationships with their clients, the Law Society of Upper Canada is investigating whether its former Treasurer George Hunter violated any rule of professional conduct during an intimate relationship with a divorced client he was representing in a family law dispute.

“I do not feel that I violated any rules of professional conduct,” asserted the civil litigator and father of two, whose marriage collapsed late last year.

Hunter told The Lawyers Weekly he had “no comment” about the specifics of his relationship with his former client. “They are conducting an investigation, but I don’t know where it’s at,” he said in an exclusive interview. “I do not feel I have offended any rules.”

Hunter, a senior partner at  Borden Ladner Gervais (BLG) in Ottawa,  tendered his resignation as LSUC Treasurer Dec. 2, 2005. It was less than a month after the leaders of the 14 regulators who oversee the professional conduct of 88,500 lawyers and 3,500 notaries elected him president of their umbrella group, the Federation of Law Societies.

As part of overhauls of their ethical rules recently, both LSUC and the Canadian Bar Association have tried to come to grips with the thorny issue of sex with clients but the investigation into Hunter could trigger another round of soul-searching within the profession.

Unlike Canadian physicians and the American Bar Association, lawyers here have not adopted a “zero-tolerance” rule.

Rather in revamping Ontario’s Rules of Professional Conduct in 2004 the Benchers who included Hunter endorsed multiple factors for consideration – under the rubric of “avoidance of conflicts of interests” – which are supposed to guide lawyers, but which critics contend are vague and subjective.

In 2004 Hunter also sat on a three-Bencher LSUC discipline panel, which for the first time disbarred – rather than suspended or reprimanded – an Ontario lawyer the panel found had sexually harassed a client after the end of a consensual personal relationship. The decision was overturned on appeal, including on the basis that the penalty was much too harsh.

Law Society investigations are kept strictly confidential unless and until a committee of Benchers decides there are reasonable grounds to file a notice of application for a formal discipline proceeding.
With respect to Hunter, “there is currently no notice of application,” Law Society spokesperson Lisa Hall told The Lawyers Weekly.

Hunter has however been a topic of discussion within the legal community for months.
“There is an investigation by the Law Society of George Hunter,” BLG national managing partner Sean Weir confirmed in response to inquiries from The Lawyers Weekly.

In an exclusive interview, Weir stressed: “it should be absolutely clear there is no investigation by the Law Society of the firm itself, or any member of the firm, other than Mr. Hunter. There have been no allegations made against the firm, there have been no complaints made against the firm.”

He noted he felt constrained in his answers by Hunter’s entitlement to privacy, fairness and due process.

Weir emphasized BLG had “absolutely no involvement ... of any kind whatsoever” with a document, entitled “acknowledgment,” which Hunter drafted and asked his then-client to sign last November. The document’s thrust was a purported acknowledgment by the client that their personal relationship, which started many months previously, had no effect on Hunter’s professional representation of the client.

“There was no suggestion by the firm to Mr. Hunter that that document was something he should obtain, or anything contained in it that he should obtain, and we did not have any idea that that document existed until after – at least more than a week after – it was signed,” Weir stated.

The client became upset and angry after she signed the purported “acknowledgment,” and their personal and professional relationship ended.

Weir said the firm first became aware of “a significant number of the facts relating to this matter” on Nov. 30, 2005 . Weir said that at that time BLG management told Hunter the matter had to be reported to the Law Society and that Hunter did so in a letter Dec. 5, 2005. “When information came forward we acted promptly but properly, and Mr. Hunter was on leave immediately, continues on leave [and] has had no further contact with clients,” said Weir. “Right now the Law Society is seized of this matter and we will await to see what decision they make as a result of their investigation.”

Hunter has been on a leave of absence from BLG since Dec. 2 when he gave notice he was relinquishing his Law Society posts due to “family and personal” considerations. Last December Hunter assured The Lawyers Weekly that his resignation was not due to anything awry in his professional life, but was related only to “the demise of my marriage and the implications of that on my children.”

Weir said BLG management “instructed Mr. Hunter that he was to have no contact” with his ex-client after she complained that he had contacted her after their relationship ended.
Weir said the partnership has not decided when Hunter, who has been on a medical leave, will return to work. “He indicated that he thought he was able to return to practice. There has been no decision on that.”

Weir said BLG will look at the issue of lawyer-client sex as part of a more general review of its workplace policies which, as in most firms, do not impose an absolute ban on such relationships.

“All lawyers are expected to comply with the Law Society guidelines and requirements in that regard,” explained Weir. Professional Conduct Rule 2.04, and its commentary, provide a “very subjective” test to guide lawyers on the question of sex with clients, he suggested.

“I think that at the end of the day, when this is over, we will have to determine whether the Law Society policy sufficiently meets the needs of the firm,” Weir observed.

Rule 2.04 instructs lawyers to avoid situations “that would be likely to affect adversely a lawyer’s judgment on behalf of, or loyalty to, a client.”

A lengthy commentary warns that a sexual or intimate personal relationship with a client “may conflict” with the lawyer’s duty to provide objective, disinterested professional advice to the client. Before accepting or continuing a retainer with a person with whom the lawyer has such a relationship, the commentary admonishes that the lawyer should consider six factors: the client’s emotional and economic vulnerability; the fact that the lawyer-client relationship may create a power imbalance; that power imbalance may be in favour of the lawyer or, in some circumstances, in favour of the client; whether the 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 relationship may obscure whether certain information was acquired in the course of the lawyer-client relationship); whether such a relationship may require the lawyer to act as a witness in the proceedings; and “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.”

Notably, Rule 2.04(3) indicates that clients can give informed consent to a sexual relationship with their lawyer. But it stipulates that a lawyer shall not act, or continue to act, in a matter when there is, or is likely to be, a conflicting interest “unless, after disclosure adequate to make an informed decision the client or prospective client consents.”

The commentary elaborates that while Rule 2.04(3) does not require that a lawyer advise the client to obtain independent legal advice about the conflicting interest, “in some cases, especially those in which the client is not sophisticated or is vulnerable, the lawyer should recommend such advice to ensure that the client’s consent is informed, genuine, and uncoerced.”

After a debate over their new ethics bible in 2004, the Canadian Bar Association’s Council voted overwhelmingly to reject a “zero-tolerance” rule and a less restrictive option. Delegates condemned both options as paternalistic and as sending out negative messages about lawyers and clients. At the time Gavin MacKenzie, ex-chair of LSUC’s professional regulation committee who replaced Hunter as LSUC Treasurer this year, unsuccessfully urged the CBA to explicitly deal with the issue in its Code given the difficulty legal regulators have in prosecuting sexual misconduct cases. The issue “has often arisen in family law cases where reputable senior male lawyers have been found guilty of misconduct with women who have been through bitter divorces,” he explained to The Lawyers Weekly in 2003. “When those prosecutions have been brought the lawyers have inevitably taken the position: ‘Well the client wasn’t vulnerable, it was purely consensual.’ The complainant has invariably taken the position that ‘I trusted my lawyer ... I was clearly a victim. There was a power imbalance there’.”