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 29 D E R A I L E D $30-million admission like that," says Pape, who conducted the law society's appeal of the decision. He noted the LSUC cannot shirk its responsibility to govern and help educate the profession. "This will reoccur. Leaving aside the circumstances of this case, whoever would want to have to stand up to Conrad Black? There are going to be other Conrad Blacks around. . . .You are dealing with power- ful people who are the controlling group of a closely held company. You are dealing with significant legal fees paid out over a long-term relationship." But Campbell maintains it is "indefensible" for anyone to argue that the prosecution can be in any way justified on the basis of clarifying the law or educating the profession. "While failing to confront the law head on, they spent four years trying to show that Beth and Darren had sold out their clients' interests — a project in which they failed miserably," he says. "That's why the case, which lent itself to a fairly straightforward analysis once the basic facts were established, became such a rampaging beast, gulping down resources and trampling reputations." In arguing for costs, Campbell and Smith said they each spent 4,000 hours of preparation and 118 hearing days. Adding in dis- bursements, the cost of the defence reached nearly $4 million. DeMerchant and Sukonick were ultimately awarded $250,000 each, apparently the largest cost awards ever made against the LSUC. It is under appeal. Besides losing the case and having costs awarded against it, the LSUC had a new problem. It felt the hearing decision had seri- ous misstatements about conflict law and the duties of counsel. Accordingly, Pape appealed four of the six charges that had been dismissed. On Feb. 18, 2015, the appeal tribunal upheld the dis- missal of the allegations but found considerable fault with some of the reasoning in the original decision. Not only had DeMerchant and Sukonick done nothing wrong in relation to the non-compete payments, the appeal panel said, but DeMerchant had moved "immediately and assertively" to advise her clients they had to rectify the problem once it became apparent. The decision illustrated the pressure the lawyers had been under by citing a flurry of internal correspondence over a $22-million debt one of the Hollinger companies had owed to another. In one peevish e-mail, Jack Boultbee had expressed impa- tience with DeMerchant and Sukonick for insisting that Hollinger International's public shareholders might be adversely affected. "We have already been around this before," Boultbee kvetched to a colleague, according to the appeal tribunal decision. "Can we get Torys to stop fussing about this and just complete the docu- mentation?" The appeal decision pointed out DeMerchant had continued to red flag the problem, going so far as to warn Black that ignoring her advice could result in the executives being sued and Black "serving up his head on a silver platter." To the relief of the LSUC, Pape did succeed in cleaning up many of the problems involving definitions and standards that were in the original deci- sion. Still, there was no glossing over the fact the prosecution had amounted to a long, inglorious legal belly flop. Rather than go into a defensive shell, the LSUC opted to revamp its disciplinary process to avoid another debacle. Led by benchers Mark Sandler, Linda Rothstein, Raj Anand, and Alan Gold, it has created an independent tribunal. Physically and psychologically separate from the society's disciplinary branch, the tribunal has more than 80 experienced adjudicators — both benchers but mostly non — who were appointed on merit. They adhere to a code of conduct and receive mandatory education. Its permanent chairman, David Wright, has moved to shorten cases and reduce adjournments through the use of mandatory pre- hearings and case-management. In addition, Sandler sat on every appeal panel over a period of several years to help create a badly needed body of consistent jurisprudence. "I decided we had to create a body of jurispru- dence," says Sandler. "It had conflicted at times and there wasn't much of it." Previously, all hearing panels were composed of benchers. "But just because you're a bencher doesn't mean you have the skills to be a good adjudicator. So it was best to combine both benchers and non-benchers." The LSUC has also extended a measure of this reformist zeal to the areas of investigations and prosecutorial oversight, and reduce the tunnel vision and lack of communication that comes of operating in separate silos. Which is all well and good, say DeMerchant and Sukonick, but what about accountability? What about conducting a thorough post mortem of the case? "I'd like to know what was going on behind that heavy veil," says DeMerchant. "Was this a problem with the quality of staff? Was it a lack of oversight by the benchers? Was it a one-off mess that will never happen again if we do nothing?" The other matter that remains unresolved is whether the lives and reputations of DeMerchant and Sukonick can ever truly recover. Since leaving Torys, DeMerchant has channeled her energy into renovating a church near her hometown into a multi- purpose venue for events such as concerts, exhibits, and meetings. In future, she said that she plans "to be productive and use my legal experience. I am reflecting on how to do that now that my good name has been restored." What happened to them also raises a Zen-like question: Did the system malfunction or has their exoneration proved that the system works? Sukonick was particularly hard struck on account of his relative youth and career path. He spent a decade watching from the sidelines as colleagues developed rich client relationships, assumed leadership positions at the firm, and saw their incomes soar. And while during that time he married Matthew Sapera, owner of Matthew Sapera Fine Homes, he says: "It is very dif- ficult to look back on almost 10 years of my life that should have been the most productive and brought me the most revenue. The biggest portion of my career-building years was decimated by virtue of this. It was horribly, horribly unfair." During this period, Sukonick has continued working on Torys' pro bono committee and some client pricing initiatives, but hopes to take most of the summer off. He knows that self-pity will get him nowhere. "My real passion is working with clients on their deals. I am having discussions with my colleagues about opportunities to re-integration into client service." He looks upon what happened to him at the hands of the LSUC as akin to a car accident. "You can spend years blaming somebody for your bro- ken arm or leg. Or, you can say: 'I have to work on healing and figure out my way forward.'"

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