This month’s cover story is a cautionary tale but also a chance to openly discuss issues facing many lawyers across Canada, the majority of whom work alone or in small firms. Anyone practising law knows it’s no walk in the park. Law is a stressful profession bookended by the need to stay solvent on one end and the demands of clients on the other. For lawyers in larger firms, it is somewhat easier to manage than it is for those who practise alone or in smaller firms. Large firms have not only more lawyers to turn to if you’ve got questions or problems but many have built-in support mechanisms, educational opportunities, and even accounting and human resource departments to do a lot of the basics. That’s not the case for many other lawyers and they do run into problems trying to juggle all their various responsibilities.
But it’s more than just the difficulties of the day-to-day running of a law practice — it’s the overwhelming stress of practice in general. I don’t know a single lawyer who doesn’t know at least one other lawyer who has problems with drugs or alcohol or even both. Long hours, high expectations, hefty workloads, and complex work create a perfect storm for substance abuse. What may start out as the occasional drink after work can quickly turn into a daily need for alcohol or something stronger to take the edge off. In this, the size of the law firm does not matter. Stress is stress and the search for a crutch knows no limits.
In the good old days, which weren’t really all that long ago, colleagues often knew about another lawyer’s drug or alcohol problem but not much was said about it, a few friends may have tried to help but the problem was kept hush hush. But as discipline records at the law societies will show, in the end, it’s often personal problems that start to hurt the law practice and frequently end in letters from the law society or even disbarment. It’s more likely to be a marriage breakdown or similar personal problem than any real nefarious behaviour that is at the root of what sends many a lawyer in the vortex of disciplinary proceedings.
In recent years, there has been a much greater realization of these problems within the legal profession in Canada. We saw the creation of many lawyer assistance groups across the country. Most started simply as drug- and alcohol-support organizations but they’ve grown into much more. For lawyers who are having trouble in certain areas of their practice, they can access peer support networks to help with, say, accounting problems or complicated cases. For those having emotional or substance-abuse problems, there is access to professional counsellors in every province across the country. The Canadian Bar Association even has a section that provides education, support, and expertise to strengthen these provincial lawyer assistance programs.
Help is out there. It’s up to lawyers to recognize when they’re having problems and reach out. But there’s just as much of an onus on friends and colleagues to reach out and offer a helping hand or a bit of guidance to keep their lawyer pals off the radar of the law societies’ discipline departments.
To co-opt a catchphrase from the Bush administration: no lawyer should be left behind.
Conflicts are a messy business, on every level these days, it seems. While conflict of interest rules underpin the justice system and are at the heart of the practice of law, no one ever dreamed that complying with them would become so onerous and so costly. And it’s not just a big-firm problem. Conflict-related concerns affect law firms of all sizes in a wide range of practice areas. They also no longer occupy the periphery of practice with a growing number of firms assigning a partner or entire groups of lawyers to manage — or is that avoid — conflicts for clients and the firm.
Following conflict rules, which includes their interpretation through a number of Supreme Court of Canada decisions, is absolutely imperative, as an error could lead to damaged client relationships, increased costs, delays, further lawsuits, and even disciplinary action against practitioners. The problem is not that lawyers have to abide by conflict rules, it’s that the rules, and again their interpretation, are complex and are imposing a substantial burden on lawyers, firms, the courts, and even clients.
For a few years, the increasing complexity, cost, and effort required to comply with conflict of interest rules have weighed heavily on law firm manager’s minds. In March 2007, the Canadian Bar Association created a task force to examine the issue and develop a set of model rules and materials to make the process of managing conflicts easier and practical.
The task force is led by Scott Jolliffe, the managing partner of Gowlings, who has been on the forefront of the issue for years. He’s joined on the panel by 14 lawyers who represent law firms across the country, in-house counsel, law societies, and legal insurers — all of whom have varying but interwoven interests in making the application of the principles of conflict of interest more effective. While the task force can’t create enforceable rules, its aim is to develop a set of widely accepted model rules that law societies will incorporate into their rules of professional conduct.
For the first six months, the task force worked together to identify the most prominent areas of concerns and in October released its consultation and background papers. They’re online at www.cba.org/conflicts. The consultation paper has 15 questions that address loyalty requirements and their interpretation, information-sharing within firms, retainer letters, and the problematic challenges posed by current conflict rules.
As already stated, conflict rules don’t just apply to top-tier firms. Mid-size firms, lawyers in smaller communities, and their clients are all affected by the rules. They also affect lawyers’ abilities to move between firms, not to mention firms that have multiple offices that operate in several jurisdictions.
There aren’t likely to be many lawyers who are not touched one way or another by aspects of today’s complex web of conflict rules, which makes it so much more important for every lawyer and every level of practice in this country to take part in the task force’s consultations. The task force is in the throes of its consultation period. The deadline for sending comments is Nov. 29 and Canadian Lawyer encourages all Canadian lawyers to participate by visiting the task force’s web site to read the consultation paper and complete the questionnaire. More than any other issue facing the profession, the miasma of conflict rules and interpretations needs clarity in order to be effective and protect lawyers and clients. Make your voice heard.
The issue of securities regulation and enforcement has been big news in Canada over the last few months. It appears that the debate over whether this country needs a single securities regulator will never be resolved.
Federal Finance Minister Jim Flaherty has once again stated he’s putting together a panel to draft legislation for a national securities regulator. The panel was scheduled to meet before the end of 2007, but by press time no moves had been made. While Flaherty is pushing for a single regulator, Quebec, most vocally, and a number of other provinces say they are opposed.
“A common securities regulator does not mean an Ontario or Toronto-oriented regulatory body,” Flaherty told the Senate standing committee on banking, trade and commerce last month. “That is what we have now . . . . We have an Ontario-dominated securities regulatory system. For those in favour of an Ontario-dominated system, they should permit the current system to remain. For those who want a distribution of powers, they should support a common securities regulator in Canada.”
The debate rages on and, as former Ontario Securities Commission chairman Jim Baillie suggests in our cover story this month, Canada will still look like a bunch of Keystone Cops on the international enforcement scene with its slew of provincial regulators instead of one voice for the country.
But even if Canada never achieved national securities regulatory unity, the many parts of it that now do exist have to do better at arresting corporate crime. Again, our international reputation depends on it. As one recent newspaper article about lax enforcement noted, Canada is not just considered an “enforcement-free zone” where people get away with white-collar crime, but a place where they can profit dearly from such crimes. That’s not a reputation conducive to building a strong economy.
There has been a lot of chin wagging about the differences between Canadian and U.S. treatment of such crimes and it is true that in many ways the patchwork, some might even say haphazard, system in this country is to blame. But there is more to it than that. As the cover story notes, there is a bit of a cozy relationship between the OSC, in particular, and the lawyers who both prosecute regulatory matters and represent or work for the companies and/or directors involved in many of these cases.
On the criminal end of it, there are problems with the Integrated Market Enforcement Teams set up to investigate criminal activities on the markets. A report on IMETs from Nick LePan made public last month points to all sorts of problems, including a lack of prosecutors well versed in securities law. Not to mention that with 13 different regulators across the country, timeliness goes out the window in cases that may involve federal prosecutors and one or more provincial Crowns.
Fighting fraud is not a high priority either within the RCMP or the Public Prosecution Service of Canada, says LePan, and that has to change. No one is complaining about lack of resources; IMET and the OSC have enough to do what they need to, but the lack of co-ordination, complicated multi-jurisdictional regulatory system, and cozy relationships among securities lawyers are making a bit of a mockery of the securities enforcement system in this country. A single regulator would help for sure. But timeliness and co-operation leading to some real results could also go a long way to comforting investors, particularly those who in some cases have been waiting decades for the resolution of cases in which they’ve been bilked of their hard-earned money.
In November 2005, Helena Munroe was whisked away, under false pretenses, from her Nova Scotia home by her brother. Claiming his sister was unhappy, he secretly took Helena, suffering from Alzheimer’s disease, back to his home in Scotland. It would be 19 months before her husband, Sandy Munroe, would be able to see her again. And even now, it will be at least two years — and a long and arduous battle — before she returns home to Nova Scotia. Just days before we went to press, it was announced that Helena would soon be returning to Canada on the heels of a British panel, formed under a law designed to protect vulnerable adults, determining Sandy to be her official caregiver and decision-maker.
As a psychologist specializing in Alzheimer’s, Helena knew what lay ahead when she was diagnosed with the disease. She did the right thing: drew up papers designating her power of attorney and preparing a health-care directive long before she was declared mentally incompetent, in May 2005. Her husband would be the one to take care of her, with a close friend as an alternative. Her wishes were set out in official documents. That would have been fine, if her brother hadn’t swooped in and jetted off with her to the U.K. Once Helena was moved beyond Canada’s borders, her wishes, as outlined in those documents, essentially became unenforceable.
Her husband pleaded to have the brother charged criminally with kidnapping. Nothing happened. He fought in Canadian and British courts to get her back. Nothing worked. Sandy, along with the help of Canadian diplomats, finally located her again in a psychiatric hospital in northern England in February 2006.
It was still months before he could see Helena. And still, he had to prove to the panel and an independent mental capacity advocate to prove that he was her official caregiver. An arduous and lengthy process that shouldn’t have been necessary if the power of attorney and health-care directive documents prepared in Nova Scotia carried any weight across borders.
The case, as outlined in our Legal Report on Wills and Estates on page 49, highlights the need for changes in legislation to protect vulnerable adults from ending up in similar situations, particularly as the number of elderly people in society is increasing. Within Canada there is a trend toward having documents created in one jurisdiction recognized in another, but outside the boundaries of Canada, there’s practically no protection.
The Hague Convention on International Protection of Adults was struck in 2000 yet very few countries in the world have signed on — Canada is not one, neither is the U.S. — even though 40 countries were part of the negotiations leading to the agreement. So far, ratification of the convention has not been much of a priority for the “new” Conservative government. Defence Minister Peter MacKay, who is from Nova Scotia, has taken a personal interest in Helena Munroe’s case. He is a powerful member of the current government and perhaps his involvement in the resolution of this affair will prompt him to push for more action on the federal front.
With Canada being a nation of immigrants who have family all over the world, and the numbers of older people growing, Canada needs to create legislation to protect vulnerable adults that put into law the recognition of their written wishes so they are applied evenly across the country, but also move forward on international agreements that would extend those same protections.
It may not be the sexiest issue out there, but our mother and fathers, grandmothers and grandfathers deserve at least that much from our politicians.
The Supreme Court’s 1985 Singh v. Minister of Employment and Immigration decision gave any foreigner who set foot in Canada all the procedural rights that the Charter grants to full-fledged Canadian citizens. In that ruling, the word “entitle” appears 24 times in relation to would-be Canadians. The word “responsibility” appears just once.