The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50819
opinion Many regard [the LSUC's] disciplinary activities, and those of other Canadian law soci- eties, as suspect in principle (putting the fox in charge of the henhouse), and dubious in practice (the disciplinary historical record is unimpressive to say the least). of what was seen to be his own company. Success would be unlikely, and the price of trying could be losing an important firm client and seriously damaging your career. Faced with these proposed transactions, with Black glowering on the other side of the desk, who could blame a lawyer, for simply saying, "Yes, Conrad." Torys has stoutly maintained that DeMerchant and Sukonick did nothing wrong. What is surprising is that Torys was apparently content to represent parties with competing interests in the same transac- tions. It is startling that the firm didn't, at the very least, insist that different lawyers in the firm act for the different parties; as artificial as that might have been, it would have offered some cover from a conflict-of-interest accusation. No, it looks as if Torys walked naked into the maelstrom. Presumably all concerned were motivated by business rather than ethical considerations. As every Bay Street hand knows, this happens all the time. The most significant part of this story may not be the sins of individual lawyers, but the deeply rooted economic dynamics of big law firms. Some secondary questions seem to have been overlooked in the hubbub. Sukonick was an associate at the time. What were the supervisory responsibilities of DeMerchant, the partner he reported to, and of Torys itself? Should Sukonick be considered less culpable than his then superiors (if the LSUC allegations are upheld)? How acceptable is it to hang an underling out to dry? (It was Black himself who at one point blamed "errors by underlings" for all of his troubles.) And it would be interesting to know if, and when, the management of Torys reported the possible breach of the professional conduct rules to the law society. Old-timers will remember the infamous Lang Michener LLP affair of some 20 years ago. Members of that firm's executive committee were disciplined for failing to make timely disclosure to the law society of a partner's malfeasance. It's not just DeMerchant and Sukonick, and their firm, who are on trial. The law society has a lot at stake. Many regard its disciplinary activities, and those of other Canadian law societ- ies, as suspect in principle (putting the fox in charge of the henhouse), and dubious in practice (the disciplinary historical record is unimpressive to say the least). Most of the time, law societies operate under the radar. No one pays any attention if the regulator disciplines a solo practi- tioner who failed to maintain proper records and then ignored letters from the law society asking that something be done about it. But a lot of people are watching the DeMerchant/ Sukonick affair closely. A major law firm is involved. The cast of characters includes Black. The press is assiduously on the job. The Ontario law society needs to get this right to enhance its credibility. The hearings didn't get off to a good start with revelations of boxes of undisclosed documents. "It was an oversight," said a spokesman for the law firm. The hearing was delayed while document disclosure was sorted out. Then, there was consid- erable discussion about whether the proceedings should be in camera to preserve solicitor-client privilege; an attempt was made to solve that problem by seeking waivers from the clients involved. None of this inspired confidence. Getting back to DeMerchant and Sukonick, what, realisti- cally, could have been expected of them? Were they supposed to defy an imperious and unforgiving Black? Should they have stood up to the management and partners of Torys, jeopardiz- ing the firm's relationship with a major client and thus their own careers? These, I think, are counsels of perfection. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com. Conflicts of Interest Principles for the Legal Profession This service is designed as a handbook and covers all major legal areas regarding conflicts of interest. National in scope, this resource includes: • guidance on identifying and resolving conflict of interest issues • thorough analysis of the rules governing legal ethics • advice on changing jobs and conflicts arising out of transfers between law firms • coverage of a number of topics, including: • gifts, benefits, hospitality • acceptable conflicts of interest • the • discussion of a now comprehensive federal conflict of interest regime for public officials ORDER your copy today Looseleaf & binder • $205 • Releases invoiced separately (1-2/yr) P/C 0135030000 • ISBN 0-88804-430-5 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. MacNair_Conflicts of Interest (CL 1-4sq).indd 1 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. www. C ANADIAN Law ye rmag.com JULY 2010 19 6/11/10 11:04:21 AM M. Deborah MacNair Federal Accountability Act