Our latest ethics scandal

CBC's The National is running a story tonight on an ethics case out of Winnipeg, Manitoba involving some fairly sordid facts (print story here).  A husband and wife were lawyers at one of - if not the - most prestigious firms in Winnipeg.  They both practiced some family law.  The husband was representing a black client in a bitter divorce case.  He attempted to solicit his client to have sex with his wife; gave the client very pornographic pictures of the wife; and directed the client to a website where the photos were posted, which website is intended to solicit black men to have sex with white women.  He also arranged for the client to meet his wife, and persisted in trying to get the client to come to his house.  The client was disturbed but did not want to disrupt his case and so went along to some extent, although not attending at the lawyer's house or having sex with the wife.  

Once the case was resolved the client reported what had happened to the law firm.  The law firm arranged for a modest financial payment to the client from the lawyer, had the client sign a release and, shortly thereafter, the lawyer left the firm.  The law firm did not report the lawyer to the Law Society of Manitoba.  The lawyer's wife remained at the firm until she was appointed to the bench a few years later, where she is now Associate Chief Justice of the family law division of the Manitoba superior court.  

The client eventually became concerned that she was interfering with a civil case he had ongoing, and so has brought the matter to the press and made complaints to the Canadian Judicial Council and to the Law Society of Manitoba.  There is nothing to confirm that she has so interfered at this point.  The husband says that he posted the pictures without her consent.  However, she knew they were on the web once the client made the complaint to the law firm.

The main issues in the matter are the judge's duty of disclosure in relation to the photos at the time she was appointed and the failure of the law firm to report the matter.  The duty to disclose the existence of the photos is clear given the form filled in by all prospective appointees to Canadian superior courts.  With respect to the law firm, although the Manitoba rules do not impose a duty to report expressly, in my view they are sufficient to impose a duty on the firm to report (they indicate that lawyers should report acts that might indicate the likelihood of future wrongdoing).  In addition, and regardless of the rules, I do not see how self-regulation can justify itself if law firms do not report in cases like this - particularly where it appears that the law firm itself had no desire to continue to have the lawyer practice there.  If they didn't want the lawyer to be associated with them, why were they OK with having him out offering his services to the public?  Well, I can guess why, but I don't think it reflects well on the firm.

I am interested though in the comparative perspective - would a law firm in the US have a duty to report in a case like this, or could they simply arrange a legal settlement and move on?

Comments

[Alice Woolley]

To be fair, the story says the lawyer quit the firm. I guess I just have enough experience of law firms to think that, even if true, he likely had a few hands pushing his back out the door as he left. And in any event I don't think it matters. The firm should still have reported.

[Joe]

When will attorneys learn that that getting too personal with clients like this (and is such a WEIRD manner) will only get them into hot water? Where is the thought process for a person like this?

[Frances Woolley]

Will anyone whose high school and undergrad years are celebrated on Facebook be able to serve on the judiciary?

[Alice Woolley]

Frances, with respect to the judge herself the issue is less what she did, than her (perhaps) failure to disclose it. The form requires that an applicant for a superior court appointment disclose anything from their personal or professional life that may bring the administration of justice into disrepute (or something like that). In this instance the only acknowledged facts are that she posed for the pictures, and that her husband posted them on the web and then used them in an inappropriate way with his client, and that she knew what he had done at some point. If she disclosed that it is possible it wouldn't disqualify her from being appointed - that would be up to the ctte. But the failure to disclose it, particularly when the client is a litigant before the court to which she is being appointed (albeit a different division) would be an issue as undermining the functioning of that process.

In terms of your actual question, I think it depends on the nature of the celebration. But if your life is recorded in the public sphere, and if the exposure of your life in the media when you are in the middle of adjudicating a public trial could bring the administration of justice into disrepute, then you should disclose the recording to the ctte. I can't imagine a picture of a drunk 18 year old would say much of interest about that 18 year old as a 40 something judge adjudicating anything. And I can't imagine the ctte caring. On the other hand, if the 18 year old hi-jinks involve beating up a person of colour while wearing nazi costumes... yes, I think the ctte would - and should - care. How would that make a person of colour litigating perceive the administration of justice?

Ultimately though the message is an old one - disclosure is better than a cover up. See Pettitte, Andy and Clemens, Roger.

[Alice Woolley]

And Joe... I have no idea, on so many levels. There is a serious ick factor in this one.

[Stephen Shoshan]

I have to say that the client's conduct is a little strange. I guess it's a matter of perspective, but why did he believe he couldn't say anything when sex with the wife was first suggested? He didn't want to "disrupt" his case? His lawyer is trying to get him to have sex with the wife, either because the wife has a fetish for black men, or because he has a fetish for his wife having sex with black men, or both. The lawyer brings this up over and over, gives him photos etc. That's not disruptive enough? Then, he forms the (almost certainly baseless) belief that the judge/wife is conspiring behind the scenes to thwart his civil action. The second (and maybe also the first) of these beliefs bespeaks a disturbing paranoia.

I have had one or two clients who had this weird paranoid fear of me - they seemed to believe that as a lawyer, I could and would manipulate things in some evil magical way to their detriment, if they crossed me.

It seems the husband lawyer picked the wrong guy to involve in this little drama.

[Alice Woolley]

Steve,

My understanding is that he had already had problems with his divorce case being adjourned, and advised by the judge that no further adjournments would be acceptable. The lawyer was - the client says - doing a good job on the divorce action, which had been bitter and intractable.

I am very reluctant to be hard on a client who is being sexually harassed by a lawyer in the middle of a trial of a divorce action.

Is the belief baseless? How would you feel if you were him?

While I'm quite willing to believe that some clients have had a weird paranoic fear of you (!! - actually I find that a little hard to believe) I can guarantee you they didn't have the grounds than this client did. I mean come on - have you ever sent your clients to websites to solicit them to have sex with your wife? I don't think so.

Alice

[Judith]

Wait, you mean all judicial nominees are supposed to disclose their sexual preferences, and if they ever had sexy pictures taken? Maybe I don't understand, but I don't get why her pictures would bring the law into disrepute. (not her husband's behavior with his client, because that was clearly seriously wrong). I always figured private lives were private. I've never had any interest in knowing the sexual activities of any judges I worked with. f it is true that she did not consent to either the interaction with the client or the posting of the pictures, is there still an obligation to disclose?

[Alice Woolley]

Judith,

The obligation to disclose comes from the form that potential superior court judges fill out, which asks, "Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed".

The question is badly drafted ("which should be disclosed" begs the question). However, bearing in mind that the pictures were posted on a website intended to solicit black men to have sex with white women, and were distributed to this client to solicit him to have sex with her, I think the answer to that question in her case had to be "yes". The appointments committee could then make whatever decision they liked.

I agree with you about sex in general - I am disinterested in the (adult, consensual) sexual proclivities of judges - except to the extent that they are in the public domain and could, therefore, create issues of disrepute. I also think the racial aspect changes this significantly.

Alice

[Rick Underwood]

I actually did a CLE - multimedia DVD and in 3-D - about sex with clients. I mentioned this case but could not bring myself to discuss the details. This is so hideous that even I don't want to think about it anymore. One more reason to totally avoid technology. So why am I commenting over the internet?