Lawyers and Conflicts – the Myopia Continues

Yesterday, retired judge Dennis O’Connor resigned from heading up the Toronto Police use of force review. He did so because of a perceived conflict of interest over his role at Borden Ladner Gervais LLP; BLG represents the Toronto Police when they are sued.

According to the Toronto Sun, O’Connor said in a statement, “We were surprised by the objections raised by lawyers for some of the victims’ families to my conducting the review. We had thought that I could structure and conduct the review to satisfy any concern but apparently not….. I regret that this issue has arisen but I am of the view that if there is any possibility of concern in a matter such as this, it is best to address it at the outset.”

To most observers this resignation was a long time coming and illustrates the acute myopia that some lawyers have when it comes to conflicts of interest. Clearly both Mr. O’Connor and BLG wanted to be part of such a high profile matter – no wonder he took so long (16 days) to see the obvious conflict; the rewards were too great.

This is nothing new for the legal profession.

Most lawyers are aware that Ontario Bencher Peter Wardle is making a play to remain on the LSUC appeals panel for the Joe Groia disciplinary matter. This, despite the fact that his firm, Wardle Daley Bernstein is currently retained by the Law Society to represent it in four proceedings: Law Society of Upper Canada v. Small; Law Society of Upper Canada v. Chiarelli; Law Society of Upper Canada v. Feldman; and Sharma v. Law Society of Upper Canada. AND, there are an additional four proceedings in which Wardle Daley Bernstein are being retained by LawPRO to represent the Law Society: Alessandro et al. v. Law Society of Upper Canada; Lindhorst v. Law Society of Upper Canada et al.; Mundalai v. Law Society of Upper Canada; and Tiago et al. v. Law Society of Upper Canada et al.

As Mr. Wardle did not, as Mr. O’Connor eventually did, see the obvious conflict, LSUC and Mr. Groia will waste money and time fighting over it. Clearly Mr. Wardle is not of Mr. O’Connor’s view that, “if there is any possibility of concern in a matter such as this, it is best to address it at the outset.” And so another panel was convened in July to determine if Mr. Wardle is to be conflicted out of the appeals panel. That decision is yet to be rendered.

Why Mr. Wardle should be permitted to be a Bencher when he financially benefits from work done by his firm for the Law Society is another interesting question.

Certainly directors on a corporate board of directors who have even the faintest grasp of good governance, would never allow a director to so financially benefit.

Why is it OK for a Bencher?

It all seems a bit too cozy, doesn’t it?

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Comments

  1. Mitch,

    Regardless of whether there`s valid reason for a perception of conflict that should have caused O`Connor to decline the position, you`re way off if you think O`Connor took the work because of some `reward` to him.

    Peter Wardle also isn`t on the panel because of what he`s getting paid, or work that might come down to them.

    You owe them both an apology.

    I prefer to believe you`ll agree.

    David

  2. For a change I disagree with David. I am certainly prepared to believe that both Mr O’Connor and Mr Wardle undertook the tasks mentioned as part of a spirit of public service and not for the money. That makes them no less in conflicts of interest given the activity of their firms. No need to parse the latest subtleties of the SCC to understand this- the phrase ‘reasonable apprehension …’ is not new.

  3. John,

    I agree there’s a conflict. My point is Mitch’s seeming accusation that that Wardle and O’Connor took the roles because they were after some personal reward.

    David

  4. David,

    You always miss my points.

    First, I owe no apologies.

    Second, if someone truly grasps the nature of conflicts of interest, then there is no need to take weeks to recuse themselves, or to fight it. Indeed, such a person would not even accept the role.

    As a lawyer, you know very well that you check conflicts BEFORE you take a file – not a few weeks afterward. How BLG and Mr. O’Connor could believe that acting for Toronto Police would not be in conflict with a review of Police tactics is utterly bizarre.

    Lawyers and firms only fight conflict allegations because they want to retain the file (and the fees, and the profile) not because of some sense of civic duty.

    Likewise, the only reason a person chooses not to recuse himself or herself is because that person wants that job for personal reasons whether it be ego, financial gain, building a higher profile, or simply because he doesn’t like being told what to do. Otherwise there is absolutely no reason not to recuse – a simple shrug of the shoulders and the filing of a resignation would be the appropriate response.

    If Peter Wardle gains nothing from the appeals panel, then he should have acted in the best interests of the profession and recused himself months ago. His refusal is costing the Law Society (and by extension, all lawyers in Ontario – including me) real money. There is no civic duty in that.

    There are plenty of others who can perform his role on the appeals panel.

    Most of the comments you make on my posts stem from your belief that lawyers are not people, and that they do not have the same personal foibles as everyone else in the world.

    In your view David, upon being called to the Bar, lawyers are magically minted into some kind of special superhuman species that always act for the greater good of society and are never personally interested in anything. In your view David, lawyers are very very special and therefore beyond any criticism.

    You are wrong.

    And it is that kindof myopic arrogance that makes the public’s view of lawyers as low as it is today.

    I’m sure both of these men are good people. But good people can also make bad decisions – as both of these men have shown. Although I give full credit to Mr. O’Connor for realizing his error and correcting it. Mr. Wardle should take a lesson from that.

  5. RE: “In your view David, lawyers are very very special and therefore beyond any criticism. You are wrong. And it is that kind of myopic arrogance that makes the public’s view of lawyers as low as it is today.”

    Hello, I’m a layperson – a mere mortal – rather than a lawyer. I once commented on a Cheifetz post regarding “how not to be an expert witness”. Wow. Did I ever get my dumb-ass kicked for daring to ask a question.

    Even so, I have another question. Does the column from Law Times titled “When a judge refuses to recuse” help make Mr. Cheifetz’ point – or does it help make Mr. Kowalski’s point?

  6. Thanks for your comment, Brian.

    I try to live my life by the following simple maxim:

    Law is not created to provide a livelihood for lawyers.

    More lawyers need to understand that, then perhaps we wouldn’t see the shameful arrogance that too many of our profession routinely display.

    I believe the Law Times makes my point.

    Not that any of this is rocket science.

    Any 1L could see these conflicts because they have no self-interest in the matter. They have total objectivity.

    It is self-interest that clouds judgement in conflicts matters.

  7. Mitch,

    “Most of the comments you make on my posts stem from your belief that lawyers are not people, and that they do not have the same personal foibles as everyone else in the world.

    In your view David, upon being called to the Bar, lawyers are magically minted into some kind of special superhuman species that always act for the greater good of society and are never personally interested in anything. In your view David, lawyers are very very special and therefore beyond any criticism.”

    Attacking the messenger again, Mitch? Tsk.

    Have you ever read anything that I’ve had published?

    Did you bother to speak to anybody who knows anything about me before writing that?

    Anybody reading your comments who knows anything about me is probably still giggling. Some might even have had to go home and change their underwear.

    Regardless, thanks for the laugh.

  8. RE: “Not that any of this is rocket science.”

    Hi Mr. Kowalski,
    Thanks for replying. Whether or not conflict matters are (or ought to be) self-evident as opposed to being the stuff of “rocket science” might be in the eyes of the beholder (you verus Cheifetz for example). Interestingly, your point of departure for this topic was a quote from the Toronto Sun. There was a time I’d of thought that the need to purge bogus, (under)unqualified medico-legal “experts” from the Ontario civil litigation (personal injury) landscape would have been equally self-evident and hardly a matter of “rocket science”. For example, I’d of thought it would be painfully obvious that a psychological “expert” proffering opinion evidence in a chronic pain case who concedes under cross-examination to “a lack of training and competency in the area of chronic pain” ought to be confronted with his concession (chronicled in the form of adverse judicial comment) his next time out (only weeks later in another chronic pain case). Alas, it didn’t happen. Not that time or the next or the time after that; ad nauseum. So maybe there is some rocket science involved in figuring out whether prior adverse judicial comments are relevant and ought to be adduced to challenge dubious experts. And maybe Mr. Cheifetz is right to say that prior adverse judicial comments will almost never be relevant. Like I say – I’m only a layperson so I don’t know – though a Toronto Sun legal columnist seems to think properly checking and challenging opposing expert witnesses ain’t “rocket science”.
    Thanks for listening, brian
    Flushing out bogus experts not rocket science | Columnists | Opinion …www.torontosun.com/comment

  9. Brian,

    If you’ve paid attention to anything I’ve written here, then you ought to know that my view of law is that most of it isn’t difficult enough to be anything close to rocket science, and what is has little to do with law or rationality.

    As for your suggestion that I was impolite to you, provide the link so that I can see for myself if you’re right. If I was, I will apologize.

    As for whatever the disagreement might be between me and Mitch Kowalski, did you read my reply to John Gregory before you posted?

    David Cheifetz

  10. Hello Mr. Cheifetz,
    First, I have no interest in discussing who you think may or may not owe an apology to whom.

    Second, as I understand it, the heart of this discussion on conflicts is this point: ” if someone truly grasps the nature of conflicts of interest, then there is no need to take weeks to recuse themselves, or to fight it. Indeed, such a person would not even accept the role. ”

    To further the discussion I offered up an example of an apparent (or actual?) conflict that was fought. It’s not clear to me that you read it. So, again I ask: don’t you think the Law Times column (below) helps make Mr. Kowalski’s basic point?

    An appearance of conflict and a failure to recuse can have (the appearance of) a long tail. Continuing with the same example, how is one to know if a conflict (real or imagined) might affect which “dimensions of the law” ought to be considered when applying the “rule of law” (see further below). Doesn’t this make the importance of acknowledging conflicts early on and making timely recusals all the more important?

    Here’s the thing Mr. Cheifetz: you repeatedly ask others if they have read what you have written. (“Have you ever read anything that I’ve had published?…”If you’ve paid attention to anything I’ve written here, then you ought to know …”.) So I’m only asking for the same courtesy you demand of others. Please read the two references below and say whether or not, in your view, they help support the fundamental argument that folks ought not delay, or even “fight”, the need to recuse when faced with a conflict?

    In other words, lets talk about the substance of the initial post rather than quibble over its style. And lets not appoint ouselves as arbiters of the need for apologies. Doing so just clouds the issue.
    ……………………………………………………………….

    Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, 2006 CanLII 41649 (ON CA) — 2006-12-14
    Court of Appeal for Ontario — Ontario

    The Rule of Law
    [140] Throughout his reasons the motions judge emphasized both the importance of the rule of law and his view that “the rule of law is not functioning in Caledonia” and “the law has not been enforced.” As we said in our reasons on the stay motion, no one can deny the importance of the rule of law in Canada. The preamble to our Constitution states that Canada is founded on principles that recognize the rule of law. The Supreme Court of Canada has said that it is one of our underlying constitutional values. See Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217; and Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753.

    [141] But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is “highly textured.” See Reference re Resolution to Amend the Constitution, supra, at 805. One dimension is certainly that focused on by the motions judge: the court’s exercise of its contempt power to vindicate the court’s authority and ultimately to uphold the rule of law. The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected.

    [142] Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

    [143] It seems to me that in focusing on vindicating the court’s authority through the use of the contempt power, the motions judge did not adequately consider these other important dimensions of the rule of law.

    ……………………………………..

    Law Times: When a judge refuses to recuse
    (Headlines)
    … be difficult to find a local judge who didn’t own land in the disputed tract. Unfortunately, that argument is disingenuous. It is common practice for Ontario courts to assign judges who do not reside …

  11. David,

    I know you may find this very hard to believe, but I haven’t read anything that you write – other than the comments you make on my posts.

    You may also find it hard to believe that I don’t know much about you – again, other than what you have written on my posts.

    All I have to go on are your comments on my posts.

    In other words, you may wish to carefully think out the comments you make on blog posts if they don’t reflect who exactly you are.

    How you may think you are, is not what comes across in your comments.

    The tone and content of your comments, reveal the true David Cheifetz to the world. Be careful.

    Have a good a day, mate.

  12. Gentlemen,

    I believe the only challenge to be answered from within a set of standards is whether or not they were upheld in a timely manner. These standards are legislated by all lawyers and demand respect and enforcement if confidence is to be restored. Regrettably, the challenge of getting behind the legal ethical scene (eg. motivation, intention, morality, etc.) is next to impossible and so we need standards of behaviour to shape the ethical prescription for everyone, including judges. The only way to truthfully answer the questions surrounding, the recognition and action to take to avoid, a conflict of interest scenario is found within our own moral perspectives. I am pleased to support those individuals who believe that anytime these standards are ignored, belittled or threatened we must all act: lawyers, judges, and the public to challenge this behavior. This is the TARGET, not each other.

    Even if the moral mirror we all gaze into does not show us as saints, it need not show us demons either. (The above is a lesson learned from Simon Blackburn’s book entitled “Ethics, A Very Short Introduction”)

  13. Civility and professionalism require due assumption of civility and professionalism in others.

    Kevin Doan.