Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 5 27 a steady drizzle of questions that seemed redundant and uncom- prehending of her explanations. Increasingly, her crisp responses invoked the image of a teacher educating an avid, but none-too- bright, pupil: "Think about it, Mr. Stern . . . My God, Mr. Stern." After lunching alone, as usual, DeMerchant asked to address the panel. "I am alone," she said, her voice wracked with frustration. "I am in isolation. I don't know where the questions are going to come from. I have deep concerns about the sometimes duplicative nature of them; the probative value of them; the misstatements." The incident could not have failed to make an impression on the hearing panel. It left a lingering sense that a significant, invisible threshold had somehow been crossed. In a series of letters commencing in 2012, the defence implored Stern to ask a PAC panel to reassess his faltering case. "Can it really be supposed that PAC intended to approve a 100-day hearing ruin- ous to the careers of its two subjects, in order to establish, at best, a technical violation of poorly understood and highly controver- sial rules which countless lawyers applied in the same way as Ms. DeMerchant and Mr. Sukonick?" they wrote. On Bay Street, lawyers who had once looked upon the Torys defendants with suspicion began to shake their heads in disbelief. Whatever relevance the case originally had was quickly fading. Most large firms had long since designated conflict specialists to flag potential trouble. "I can show you dozens of messages saying: 'There, but for the grace of God, go I," says Sukonick. "The law society could have charged a thousand people, but they had picked us." In a jocular effort to retain their sanity, he and DeMerchant began collecting metaphors about what they were enduring. One of Sukonick's favourites was likening the prosecution to building an airplane in the air. DeMerchant was fond of portraying Stern as an ice fisherman who puts his line down one hole and, bringing his hook up empty, goes to another. The hearing ground to a close on July 16, 2013, leaving the defendants to reflect on the fact that being found guilty on even one of the six charges would be enough to destroy what was left of their reputations. Months later, DeMerchant was shopping at a suburban Eddie Bauer outlet when an e-mail bearing the decision in an attach- ment popped into her inbox. Her hands shaking, she scanned it to grasp the end result. Within moments, she and Sukonick were on the phone sharing their jubilation at being completely exonerated. The decision — a blinding compendium of facts, figures, and minutiae — found that the prosecution had initially been war- ranted, but was incomplete. It faulted the law society for not reas- sessing it as it started to falter: "The Law Society knew it had no evidence to counter that already called and should have ended the hearing, at least by the time it received the letter on behalf of the Lawyers dated May 8, 2012." The panel said that in their dealings with the Hollinger Group, DeMerchant and Sukonick had followed general practices that involved no conflict of interest. "The clients are all considered to be sophisticated," it said. "Before there is a finding of conflict of interest, there should be some evidence that counsel preferred the legal interests of one or more clients to the detriment of the others. There was none." In the wake of their exoneration, DeMerchant and Sukonick felt little animus toward Stern and Naster. "Stern did the best job he could," says DeMerchant. "I do not think he's an evil person or a bad person. But if I were a litigation lawyer, I'd like to think I would be more surgical, efficient, selective." She seems more upset at what happened to Sukonick than to herself. "There is no doubt that I was the partner in charge. If they wanted one person, it should have been me." For his part, Sukonick is dismissive of suggestions his mentor ought to have reached a plea agreement that included drop- ping the charges against him. "It would have meant facing the rest of your life knowing you had sold out; that you had effectively lied." In formal and informal responses since the case ended, the LSUC, through benchers Paul Pape and Mark Sandler, insists it would have been negligent not to probe behind the murky cir- cumstances of the Hollinger deals. They point to the $30-million settlement as a linchpin moment: "A regulator cannot ignore a D 2000 - 2003 Hollinger Group sells multiple newspapers to CanWest and Osprey, with Torys LLP providing legal advice and services. October 2013 LSUC hearing panel releases ruling exonerating DeMerchant and Sukonick on all charges. April 2006 Law Society of Upper Canada investigation is launched into DeMerchant and Sukonick's work on the Hollinger ˆ les. April 2009 LSUC initiates misconduct proceedings against DeMerchant and Sukonick on six counts of con‰ ict of interest. Hearing continues intermittently for the next three years. A LONG ROAD 2007 Conrad Black and other Hollinger principles go on trial in Chicago on criminal charges relating to the sale of its newspapers. CONRAD BLACK: REUTERS/JOHN GRESS January 2014 LSUC appeals professional disciplinary ruling. Appeal is dismissed. May 2014 Law Society Tribunal awards each lawyer $250,000 in legal costs.

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