Philip Slayton Click here to see full sized version.

Two diametrically opposed views of the legal profession emerged last week with the impending release of Philip Slayton’s new book, Lawyers Gone Bad.

“The practice of law has become essentially valueless,” said Slayton in an interview regarding his book, which includes profiles of lawyers who have laundered money, had sex with vulnerable clients, and sustained expensive lifestyles through fictitious billings. “There is no particular attention paid or interest in what might be the values that underpin the law and the legal system. Lawyers are expected to be and to some degree pride themselves on being manipulators of rules in the interests of their clients.”

Slayton believes this amoral outlook has emerged because many areas of the law place an extreme emphasis on profits and income. This results in relentless demands on lawyers’ time, with the expectation that they will work continuously.

“The demands are unreasonable, ridiculous and destructive,” Slayton said. Lawyers have no time for family life, outside interests, or time to relax, and by sacrificing these things that give pleasure and texture to life, they have become miserably unhappy, said Slayton. This has created a culture that fosters the greed and corruption exemplified by the lawyers profiled in Slayton’s book.

Maclean’s recently published an article of an extensive interview with Slayton discussing his book, choosing the provocative title of “Lawyers Are Rats”, which appeared on the cover of the magazine. The cover also included photos of lawyers with captions reading “I sleep with my clients”, “I take bribes” and “I pad my bills”.

Parker McCarthy, president of the Canadian Bar Association denounced the article as a negative, distorted and sensationalized picture of the legal profession.

“This gentleman takes the worst possible examples of the few cases of lawyer misconduct and tries to paint all lawyers with the same brush. He makes sweeping generalizations about the profession based on anecdotes and opinion,” McCarthy said in an interview regarding the Maclean’s article (Slayton’s book was not available at the time). He expressed “total disbelief that a credible magazine... would permit the reputation of lawyers across Canada to be tarnished by a sensationalist cover and an extremely one-sided interview with a man who is obviously trying to sell his book.”

“Is the system perfect? Absolutely not,” McCarthy said. “Is the profession aware that the system needs to be constantly re-examined... and seek to introduce reforms? Absolutely. We hold a privilege as officers of the court, and with that comes huge responsibility.”

McCarthy would like the public to know the truth about the legal profession and their contribution to Canadian society.

“Most lawyers donate hundreds of hours a year to pro bono work, to community involvement, and this gets very little attention. From what I read of Mr. Slayton, it’s not on the radar screen of the legal profession, and on that point he is wrong.”

Both men expressed a desire to talk about the issues and concerns raised by lawyers who have gone astray, rather than focusing on their misdeeds.

“The (Maclean’s) cover got people talking... which is what I want, provided they’re talking about the issues. They don’t have to agree with me,” Slayton said.

“Let’s debate issues, let’s debate facts, but let’s get the balance right on this thing,” McCarthy said.

An issue raised in both the Maclean’s article and Slayton’s book concerns the potential involvement of lawyers in money laundering. When the government created the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to prevent money laundering, concern arose in the legal community over FINTRAC’s reporting requirements which allegedly required the breach of solicitor-client privilege.

“To use solicitor-client privilege to try and exempt lawyers from the reporting requirements designed to stamp out money laundering, which everybody knows is connected to organized crime, just doesn’t wash,” Slayton said. “This rule should not be used to protect organized crime.”

McCarthy had a very different viewpoint.

“The FINTRAC rules are deeply suspect in terms of the violation of what the courts have determined is a proper level of solicitor-client privilege,” he said. “When do you cross the line from lawyers becoming agents of the state, and lawyers representing the interests of their clients?”

If lawyers get caught in a money laundering situation, they should be punished in the harshest possible way, and the profession has made that very clear, McCarthy said. But it’s inappropriate for lawyers to become agents of the state in not only having to breach confidentiality, but then not be able to tell their client of that breach.

The issue of lawyers’ self-governance was also raised in the Maclean’s article and Slayton’s book.

“Lawyers in this country have done a bad job of self-governance,” Slayton said. “Why shouldn’t some other body, not entirely composed of lawyers, govern the profession?... Doesn’t it violate a fundamental principle of justice that the same person shouldn’t investigate, prosecute and judge?”

Slayton referred to the review of self-governance taking place in the U.K. There, the creation of an independent body, separate and apart from the legal profession and reporting directly to Parliament, is being put in place to regulate lawyers, Slayton said.

McCarthy stated that the CBA strongly supports a self-regulating profession.

“Slayton draws the conclusion that the law society disciplinary process is deeply flawed,” McCarthy said. “If it’s so deeply flawed, how did these situations (the corrupt lawyers profiled by Slayton) come to light? It’s because there was vigilance on the part of other lawyers and on the part of the law societies and the regulators that they dealt with these wrongdoers in the strongest way.”

Paul Paton, a professor specializing in legal ethics at Queen’s University in the faculty of law, has spent considerable time reviewing and writing about the issues Slayton has raised. In an interview, Paton commented on the Maclean’s article (Slayton’s book not being available at the time).

“I think the sensationalism of it is unnecessary and unfortunate,” Paton said. “There are people in all walks of life who are going to be driven by money concerns alone. The legal profession is no different than other professions in that respect. But to put a cast or pall on the entire profession by saying it’s driven by a culture of greed is really unfortunate.”

However, Paton noted, “if it draws attention to doing things constructively, then it can have a positive result.”

One such positive result would be the introduction of mandatory legal ethics education at all law schools, Paton said. This would help lawyers deal with the ethical issues that come up in every practice as well as give them guidance on issues such as self-governance and the prevention of money laundering.

“I’m at a university and law school that does not have a mandatory course in legal ethics. I think that’s a mistake,” Paton said. “In terms of trying to do something constructive, (we need) to alert the new generation of law students that there are going to be ethical challenges before they face them.”

All the rules in the world aren’t going to prevent the really bad behaviour, Paton said. Instead, we need to equip lawyers so that an ethical and moral response becomes a reflex.

“People come with their own moral equipment and baggage to any profession. It’s not like you take them into law school and pump out somebody different, ethically and morally, than who entered,” Paton said. “You equip them with the tools to identify what the concerns are and to make decisions within a range of choices about how they’re going to handle their response.”

Ethical education should not end with law school, Paton said.

“It doesn’t stop when (students go) out the door with a law degree. It should continue into the initial phase of training and later on into the profession, though continuing legal education, seminars, through in-firm discussions. A lot of the firms are already doing this.”

Mandatory ethics education on an ongoing basis will lead to better conduct, Paton said. If firms have open dialogues about ethics issues and the way in which people are practising it may help solve some of the problems that come with the pressure to bill. Such dialogues need to continue throughout a lawyer’s legal career.
“It’s a lifelong thing,” Paton said.