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?