Lawyers are unloved and jokes are legion: how does a lawyer sleep? First he lies on one side, then he lies on the other. “In the public’s mind lawyers are not only adept at the dubious arts of manipulation and double dealing, but also moral hypocrites because they defend these practices in the brazen name of ‘professional ethics’,” write editors of In Search Of The Ethical Lawyer. “Along with used car dealers and telemarketers, lawyers are considered to be the least trustworthy and least respected of all professions.”
Yet there is no criticism of barristers that has not been made by barristers, themselves. They are capable of raw self-analysis that’s rarely practiced by journalists, morticians, accountants or any other trade you can think of. It speaks to plain integrity and a passion for the profession. Imagine a volume In Search Of The Ethical Engineer – written by engineers.
Editors Adam Dodek of the University of Ottawa law faculty, and Alice Woolley of the University of Calgary, present this candid and credible account of the lawyer’s trade. The anecdotes are intriguing, sandwiched between two book-end pieces that perfectly illustrate public outrage over the legal profession’s reputed inability to see the ethical forest for the trees on the one hand, and its tiresome enforcement of cheese-paring rules on the other.
First, the trees.
Ethical Lawyer recounts the story of attorney Kenneth Murray of Newmarket, Ont., defence counsel for serial killer Paul Bernardo. In 1993, as police wound up a search of Bernardo’s home, they contacted Murray to retrieve Bernardo’s personal belongings from the house before it was bulldozed. Did Bernardo have any keepsakes? Well, yes, a collection of six 8mm videotapes secreted above a bathroom light fixture in which he and Karla Homolka documented their crimes. It remains a mystery why police were never able to find the tapes though they spent ten weeks ransacking the house.
The evidence was enough to jail Bernardo and Homolka for life. Lawyer Murray retrieved the tapes and stored them in his office safe for 17 months as Homolka pled to a lesser charge of manslaughter in the deaths of two schoolgirls. “He should have realized at an early stage that he was out of his depth,” Ethical Lawyer observes; “Murray did no favour to his client, himself or the legal profession generally.”
“There is no happy ending to a sordid saga like this one,” authors conclude. Homolka today is a free woman; Bernardo remains in prison; Murray was acquitted of obstruction of justice and never heard from again. Ethical Lawyer observes, “The most appropriate and ethical course would have been for Murray to inform Bernardo that, if he retrieved the tapes, he would likely be under an obligation to hand them over to police.”
Book-ending this appalling case is the saga of Gerry Laarakker, a likable attorney from Vernon, B.C. In 2009 Laarakker railed against “sleazy operators” after an Ontario litigator threatened to sue the parents of children arrested for shoplifting unless they paid $521.97 in damages. The claim was bogus, Laarakker thought, and the threat unseemly: “extortion by letterhead,” he called it. Lawyers for retail stores were “preying on people’s embarrassment and naiveté” and attempting to “pry some money out of the pockets of some of the humiliated parents.”
It was a strong protest – too strong for the Law Society of British Columbia, which ordered Laarakker to pay $4,500 in damages and costs for breaching a Canon Of Legal Ethics that states lawyers’ conduct among colleagues must be “characterized by courtesy and good faith.”
By any cold analysis the outcomes in the two cases are contradictory and incomprehensible. In Search Of The Ethical Lawyer attempts to decipher the secret handshakes that govern the profession. “The stories in this book are not stories of ‘great men’,” editors write; “Without a rich and rigorous understanding of the personal, social, structural and cultural circumstances in which they arise, one cannot have a meaningful conversation about the ethical challenges of legal practice.”
It’s a worthwhile conversation. Ethical Lawyer is an intriguing place to start.
By Holly Doan
In Search Of The Ethical Lawyer, edited by Adam Dodek & Alice Woolley; University of British Columbia Press; 272 pages; ISBN 9780-7748-30997; $34.95