George Hunter

A national law firm faces a $1.4 million civil damages suit after a senior partner broke the rules of professional conduct during a sexual relationship with a family law client.

Ottawa litigator George Hunter, the ex-president of the Federation of Law Societies, and his firm Borden Ladner Gervais (BLG), are being sued by A.B., and her 13-year-old daughter B.C., for general, special, aggravated and punitive damages flowing from the defendants’ alleged negligence and breach of fiduciary duty. The plaintiffs’ names are protected by court order.

Hunter, who resigned as Treasurer of the Law Society of Upper Canada in 2005 soon after his wife and law partners found out about his conduct, is also being sued by the Ottawa plaintiffs for deceit, infliction of mental distress and battery.

The statement of claim’s allegations have not been proven in court.

Hunter will file a defence, but told The Lawyers Weekly he could not comment further. “It’s not that I don’t want to say something. I can’t say anything,” he explained. “I am restrained by my firm from making any comments.”

Sean Weir, BLG’s national managing partner, told The Lawyers Weekly there are “some factual inaccuracies in the statement of claim” filed Dec. 20, 2007, in Ontario Superior Court. He did not elaborate, citing the ongoing litigation. “We will be defending the [action]. Obviously it’s unfortunate that it’s proceeded to a civil action. As far as the firm is concerned we are absolutely satisfied that we won’t have any liability in this,” Weir stressed. “We are very satisfied that as soon as BLG learned of the circumstances we acted swiftly, decisively, professionally and we are satisfied that at the end of the day BLG will have been found to have acted with integrity.”

A Law Society discipline panel suspended Hunter from practice for 60 days last February after he acknowledged violating the rules of conduct prohibiting conflicts of interest and thereby “failing to maintain the integrity” of the legal profession in his dealings with A.B., one of three women with whom he confessed he was having extra-marital sex.

Hunter admitted to the Law Society that he pursued a sexual/romantic relationship with A.B., while retained by her in an emotion-fraught custody and access matter, for over two-and-one-half-years “in circumstances in which [she] was emotionally vulnerable, without recommending that she obtain independent legal advice and without recommending that she retain a different lawyer.”

He admitted that he failed to ensure that A.B. was able to make informed decisions during that time.

The plaintiffs’ statement of claim contends that BLG is liable for Hunter’s actions since he “was acting in the ordinary course of the business of BLG in providing legal representation to the plaintiffs.”

The plaintiffs also charge that the firm was itself negligent in representing them for, among other things, allegedly failing to: provide “adequate legal services”; maintain the privacy of A.B.’s confidential records within BLG including keeping them from two employees with whom Hunter allegedly had “inappropriate sexual relationships” at the time; adequately screen Hunter’s suitability as a partner; ensure the safety of the female clients of the firm including A.B.; adequately supervise Hunter’s dealings with his female clients “when they knew, or ought to have known, that Hunter was engaging in inappropriate sexual relationships with at least two female employees of BLG;” adequately supervise Hunter when they knew, or ought to have known, that “he presented a predatory risk to his vulnerable female clients;” “adequately instruct their employees and partners to report inappropriate relationships between Hunter and his female clients”; and properly supervise, and train their partners “not to engage in any form of sexual relationships with vulnerable female clients.”

A.B.’s counsel, Matthew Wilton of Toronto’s Wilton and Associates, elaborated: “The nature of the allegation is that BLG knew, or ought to have known, that Mr. Hunter had a history of inappropriate relationships within the firm that should have put the firm on high alert with respect to his dealings with female clients.”

Wilton told The Lawyers Weekly the case’s message for all law firms is that “in this day and age I think law firms have to be scrupulous with respect to the conduct of their lawyers vis-à-vis relationships with either employees or clients.”

Since the Hunter scandal erupted more than two years ago, BLG has not implemented any new policies regarding lawyer-client sex, such as zero tolerance, or requiring lawyers contemplating intimate relationships with their clients to refer their clients to other lawyers, Weir confirmed.

He said a BLG “working group” has been mulling the issue for some time, but meanwhile the firm relies on the Rules of Professional Conduct to govern and guide their lawyers’ conduct. (The Rules do not contain a rule that per se bars lawyers from having sexual relationships with their clients.)

“There are no additional firm policies, and with respect to relationships within the firm [between employees] those are governed by our respectful workplace policy which basically provides that everybody will be treated with respect throughout,” Weir said. “There is a very heightened sensitivity within the firm with respect to these matters.”

As for lawyer-secretary sexual relationships, they are “discouraged,” he said. “We do have within our ranks a number of couples, people who are married, and their relationships started within the firm, and it’s those relationships we look at and say ‘There can be proper relationships but each one is dependant on... the circumstances’.”

Asked what message the firm is sending its professionals vis-à-vis sex in relation to the workplace, whether it’s involving clients or other people, Weir replied, “generally speaking, it shouldn’t happen. We expect people to act appropriately here, and with respect. We are quite confident that our clients and our staff are being well represented and work in a respectful atmosphere.”

Asked if he is satisfied that Hunter will not repeat his professional misconduct, Weir answered “well, I’d be pretty surprised if he did. I am satisfied that he is not going to do anything further in this regard.”

While Hunter pursued his dual personal/professional relationship with A.B. in 2005, he also ran for, and won, separate elections to lead the Law Society, and the Federation of Law Societies, the umbrella body for the 14 regulators which oversees the professional conduct of 88,500 lawyers and 3,500 notaries across Canada.

Before Hunter and A.B. became intimate, he told her his marriage was over in all but name, and that he and his wife were living together for the sake of the children, according to the agreed statement of facts between the Law Society and Hunter at his discipline hearing last year.

The agreed statement of facts also noted that Hunter “vigorously” denies A.B.’s allegation that he misused confidential information, gleaned through his professional representation of her, to take advantage of her.

A.B.’s statement of claim further particularizes her contention that Hunter used a psychologist’s report, which showed A.B. to be emotionally vulnerable, to “groom her for a sexual and romantic relationship.” She alleges that he failed to take her “seriously as a client, and was more focused on his own sexual gratification than he was interested in providing legal services to her” and “allowed his romantic and sexual relationship with A.B. to delay the finalization of the access issue.”

A.B alleges that he also failed to protect her confidential information from two other female BLG employees with whom he was romantically involved and who allegedly eventually found out about each other and about her.

“A.B. was obliged to undergo testing for AIDS when Hunter disclosed to her that he had unprotected sex with her as well as several other” women, she contends in her statement of claim. “Hunter grossly and recklessly breached his fiduciary duty to A.B. by taking sexual advantage of her, and tricking her into a romantic relationship,” says her statement of claim.

She alleges her consent to the sexual relationship with Hunter was based on false representations, including that he was not sexually involved with anyone else and that he wanted a serious monogamous relationship with her. “Her consent to the sexual relationship was not meaningful [and]... Hunter committed a battery upon her.”

A.B. also complains that after their relationship was discovered, Hunter pressured her to “lie on his behalf” by signing an inaccurate written statement, aimed at misleading his firm and others, stating that he had reviewed Rule 2. 04 with her before their sexual relationship started. This rule admonishes lawyers to avoid situations that could adversely affect a lawyer’s judgment or loyalty with respect to a client.

A.B. also complains that Hunter’s work for her as a lawyer was “incompetent” and that he did not follow her instructions to resolve custody and access issues, with the result that her child was injured in a swimming pool accident while in her ex-husband’s custody.

A.B. says her mental, emotional and physical health have been impaired and that she is consequently unable to realize her career potential. Her alleged damages include feeling humiliated, unable to trust others, especially potential romantic partners, low self-esteem and depression. She says she can’t concentrate or control her anger, has panic attacks and uses “inappropriate coping behaviours”.