Thursday Thinkpiece: In Search of the Ethical Lawyer

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In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession
© 2016 UBC Press. Paperback version will be available online and in bookstores July 1, 2016.

Author: Micah Rankin is an Assistant Professor at Thompson Rivers University in Kamloops, BC.

Editors: Alice Woolley is Professor of Law at the University of Calgary and Ethics Advisor to Calgary City Council. She is also the President of the Canadian Association for Legal Ethics (CALE). Adam Dodek is Associate Professor at the University of Ottawa’s Faculty of Law and serves as the Vice-President of the Canadian Association for Legal Ethics (CALE). Canadian Lawyer magazine has named both Woolley and Dodek as members of the Top 25 Most Influential Lawyers in Canada.

Excerpt: from Chapter 3, Gerry Laarakker: From Rustic Rambo to Rebel with a Cause by Micah Rankin

Introduction

Vernon is a small town located in the rolling grasslands of the North Okanagan Valley. Those who have visited the town will tell you that it is a friendly place; the kind of place where people raise children, or live out their golden years. And if you are not driven by an insatiable appetite for the next “big deal”, it is also a fine place to start a law practice. That is what led Gerry Laarakker to start his practice in Vernon. Laarakker wanted to be part of a community, and to have the opportunity to help regular people with the problems that mattered to them.

It was this affinity for “helping out the little guy” that ultimately led to Laarakker being disciplined by the Law Society of British Columbia. In 2010, the LSBC began a conduct investigation into Laarakker after he sent a letter to an Ontario lawyer whom he accused of “preying on people’s embarrassment and naiveté”. The Ontario lawyer in question had sent a letter to one of Laarakker’s clients demanding that she pay for “losses” arising from a shoplifting incident involving her daughter. From Laarakker’s point of view, there was no merit whatsoever in the claim. Indeed, the very idea that a fellow lawyer would threaten an unrepresented person with such a flimsy lawsuit so incensed Laarakker that he was temporarily transformed into a rustic Rambo lawyer determined to annihilate what he called “sleazy operators”. [1] When the dust settled nearly a year later, Laarakker was found to have professionally misconducted himself in contravention of British Columbia’s Canons of Legal Ethics. [2]

But was a disciplinary sanction warranted in Laarakker’s circumstances? This essay explores the possibility that Gerry Laarakker is a casualty of what is now commonly referred to as the “civility movement”. Although Laarakker’s conduct was not in keeping with the best traditions of legal etiquette, it is only loosely comparable to the kinds of behaviour that have attracted sanctions in recent “civility” cases. [3] But more to the point, Laarakker was acting out of a heart-felt belief that it was unethical for a lawyer to intimidate an unrepresented person with a meritless threat of legal action. Viewed in this way, Laarakker’s actions could be seen as a well-intentioned (but perhaps misguided) attempt to defend his client, something which is entirely in keeping with the best the traditions of the bar.

Portrait of a Mild Mannered Solicitor

Gerry Laarakker is an unlikely person to find at the centre of an essay on incivility. Born Gerardus Martin Maria Laarakker, Laarakker immigrated to Canada from the Netherlands in 1963, spending two decades as a successful professional photographer in Hamilton, Ontario, and counting among his clients former Prime Minister John Diefenbaker. For a variety of reasons, Laarakker was not entirely happy with his career as a photographer. So it was that he began taking courses at McMaster University in philosophy, history and religion, eventually completing an undergraduate degree that he had begun in the 1960s. Then, at the age of 49, Laarakker wrote the LSAT and enrolled in Osgoode Hall Law School.

Laarakker found the study of law challenging and at times difficult to balance with his family life. While he knew right away that he had made the right choice in pursuing a law degree, he and his wife were growing tired of life in Southern Ontario. Indeed, on a snowy day near the end of his first year at Osgoode Hall, Laarakker and his family decided that they were going to move to British Columbia once he had completed his degree. Over the next two years, Laarakker and his family laid their plans for an eventual move. In the summer between second and third year, Laarakker did temporary articles in Kamloops, B.C. He then made arrangements for full articles in the town of Armstrong, just north of Vernon.

Laarakker was called to the British Columbia bar in 1997. He at first practiced law as associate at a small firm in Vernon, but decided to open his own law practice in the town in October 2000. Having spent most of his life as a small business owner, Laarakker was ideally suited to life as a solo practitioner. Since opening his firm, he has developed a prototypical small-town solicitor’s practice, with a particular emphasis on wills, estates and family law. Occasionally, he takes on small claims matters, but only if he feels that someone is being treated unfairly. He confesses now that he was never very interested in litigation. While he did some litigation early on in his practice, Laarakker has always preferred working cooperatively with clients to help them structure their estates and to assist them with their personal affairs.

From Small Town Lawyer To Rustic Rambo

It was in late-November 2009 when one of Laarakker’s clients came to his office to discuss a demand letter that she had received in the mail from an Ontario lawyer concerning an alleged shoplifting incident involving her teenage daughter. Laarakker knew the client well and could tell that she was upset. The client handed Laarakker a full page letter, and this is
what it read:

I am external legal counsel for […] (the “Retailer”) with respect to civil recovery matters. It is alleged that on September 22, 2009, a young person under your care and custody…took unlawful possession of merchandise from the Retailer’s premises [in] Vernon, BC. The Retailer takes the position that it has the right to claim damages from the said young person and/or you as a result of such action based on theft, damages, and conversion. The Retailer’s right of civil recovery and payments made to the Retailer are separate and distinct from any criminal proceedings which may be instituted by the police.

The Retailer also takes the position that it has the right to claim damages from you as a parent or guardian of the young person for failing to provide reasonable supervision of the young person. You have a right to be represented by a lawyer with respect to this claim.

The Retailer is prepared to settle its claim for damages in return for payment of $521.97 (“Settlement Amount”), received on or before November 29, 2009. If this amount is not paid, I may receive specific instructions, whether or not to arrange for a law firm in your jurisdiction to commence legal proceedings for a civil court for all damages, plus interest, legal expenses, and other administrative costs incurred by the retailer in connection with this matter.
…
Any questions regarding this matter are to be made in writing, and addressed to the undersigned.

Yours truly,

[“Ontario lawyer”]

Although Laarakker is hardly a meek or hesitating person, he is by no means aggressive. But when he read the Ontario lawyer’s demand letter he was overcome with a feeling that the letter was nothing short of “extortion by letterhead”. [4] Yet something else was contributing to his feelings of contempt. Laarakker knew that the accused shoplifter suffered from an eating disorder. Laarakker’s family had also been touched by the difficulty of coping with a loved one who suffers from such a condition. He was, furthermore, aware that eating disorders are commonly associated with impulsive behaviour such as shoplifting, a phenomenon that has been well-documented in the scientific literature. [5] Thus, from Laarakker’s standpoint, the demand letter not only advanced a meritless legal claim, but also had the effect of humiliating a hard-working parent who was already struggling to manage a child suffering from a complex mental disorder.

After reading the demand letter, Laarakker told his client not to worry about the letter and that he would take care of it. One of the first things Laarakker did was investigate the legal substance of the claim. In the course of doing so, he came across an internet blog that had anonymous postings from parents who had received similar letters. Laarakker decided to vent his spleen by posting his own comment. He wrote that lawyers who send such demand letters give “lawyers a bad name”, that they were “relying on intimidation and blackmail” and that he “hated these sleazy operators”. He added that “speaking as a lawyer” a retailer “would have little chance of collecting in court”.

Laarakker’s diatribe did not end with his blog posting. His next step was to fax a letter to the offending Ontario lawyer. This is what Laarakker wrote:

I have been approached by [my client] with respect to your letter of October 30, 2009. Suffice it to say that I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to the only use for which it might be suitable, however uncomfortably.

It is disappointing when members of our profession lend themselves to this kind of thing. You must know that you are on the thinnest of legal grounds and would be highly unlikely to get a civil judgment against my client. That is aside from the logistics in bringing this matter to court in BC. I am also well aware that by preying on people’s embarrassment and naiveté you will unfortunately be able to pry some money out of the pockets of some of the humiliated parents.

I have notified the local paper of this scam. Save the postage in the future and become a real lawyer instead! You must have harboured dreams of being a good lawyer at one point. Surely bullying people into paying some small amount of money is not what you went into law for.

But then again, someone has to be at the bottom of his class, practising with a restricted license as you appear to be.

Good luck.

Gerry M. Laarakker

Civility on Trial

Laarakker’s letter provoked a rapid response from the Ontario lawyer. A few days after receiving the letter, the Ontario lawyer wrote to the LSBC complaining about Laarakker’s letter and blog posting. In the year that followed, Laarakker, the Ontario lawyer and the LSBC exchanged correspondence, which culminated in the Law Society issuing a Citation alleging that Laarakker’s blog posting and letter contained discourteous and personal remarks that constituted “professional misconduct and/or conduct unbecoming”. Less than a year later, Laarakker, who had never been the subject of any disciplinary action before, found himself before an LSBC disciplinary panel representing himself. The only real dispute at the hearing was whether Laarakker’s statements were sufficiently discourteous to amount to professional misconduct or conduct unbecoming of a member of the profession.

To find out what happened to Gerry Laarakker and to read other stories from the Canadian legal profession, see In Search of the Ethical Lawyer. The paperback version will be available online and in bookstores July 1, 2016.

Footnotes

1 A “Rambo lawyer” is synonymous with a lawyer who “uses aggressive, unethical, or illegal tactics in
representing a client and who lacks courtesy and professionalism in dealing with other lawyers”: Black’s Law Dictionary (9th ed. 2009). The Rambo lawyer has become a favourite character in the legal ethics scholarship; see e.g., Kathleen P. Browe, “A Critique of the Civility Movement: Why Rambo Will Not Go Away” (1994) 77 Marq L Rev 751. Indeed, the Rambo caricature appears so often in the legal ethics scholarship that some argue that it has led to an underinclusive understanding of lawyer professionalism: see e.g., Amy Salyzn “John Rambo v Atticus Finch: Gender, Diversity and the Civility Movement” (2013) 16(2) Legal Ethics 97.

2 Laarakker (Re), 2011 LSBC 29 (CanLII) [Laarakker].

3 Many of the post-2007 disciplinary reports are reviewed by Professor Alice Woolley in A. Woolley, “Uncivil by Too Much Civility? Critiquing Five More Years of Civility Regulation in Canada” (2013) Dalhousie Law Journal 240 [“Uncivil by Too Much Civility”].

4 Laarakker attributes this particular turn of phrase to Professor Alice Woolley’s observations in A. Woolley, “Lawyers Regulating Lawyers?” (November 3, 2011) ABlawg< http://ablawg.ca/2011/11/03/lawyers-regulating-lawyers/> (“ABlawg”).

5 Antonia Baum and Elliot M. Goldner, “The Relationship between Stealing and Eating Disorders: A Review” (1995) 3 Harvard Review of Psychiatry 210 (noting that the presence of stealing behavior may serve as a marker of eating-disorder severity).