(This post is an edited extract from a talk I gave on Nov. 1, 2017, to the legal ethics seminar of the bar admission course at the Law Society of Newfoundland and Labrador. My thanks once again to the Honourable John Joy, lately of the Provincial Court of Newfoundland and Labrador, and to the society’s director of legal education, Christian Hurley.)
Having spent many years in legal journalism and as a writer of books, I entered law practice later in life. When I was in law school more than a decade before these events, I’d thought I wanted to work in criminal law, Crown side. But more lately the opportunity had arisen to article with the country’s senior practitioner of libel law, Julian Porter. After my articles, I became the tenth barrister at the Bay Street boutique litigation firm.
One of my jobs as articling student and junior associate was to screen out the cold-callers – generally the people who would phone us during the week, especially after Julian had been on television or in the papers. Typically, these callers were livid that they had been defamed by their boss or their mother-in-law, whom they were bound and determined to sue.
Some might already see a potential ethical issue here: screening possible clients might be good training for the student, but how safe is it professionally? I was giving preliminary legal advice, unsupervised. But of course we weren’t retained (or was I? More on that anon…), I had much greater experience of substantive law than most students-at-law (as I say, I was new to law practice but older and not at all new to the law), and the partners understood that I would bring sticky situations to them. Mind you, there was also the business concern, given that I generally persuaded the callers that they didn’t have a case, or even if they did, they would have to mortgage their houses and futures for the privilege of three years of terrible, unrelenting stress. Typically I would quote them the advice of the American trial lawyer Louis Nizer: when you get splashed with a bit of mud from a passing car, it’s a bad idea to smear it around. Wait a few minutes for it to dry, then flick it away. Often, the same goes for mud slung at you metaphorically. I thought it my ethical duty to point that out, where other counsel might have taken a retainer less hesitantly (scrupulously?).
In any event, one morning during my articles, Betty, Julian’s secretary (this was before we had “administrative assistants”), buzzes me: “There’s a guy on line three, he says people are slagging him off in a bar. He wants to sue them.” Oh, goody, I think, another one of those.
So, yes, it turns out it’s the guy’s watering hole and he says that the other punters there are putting him down. I give him the mud line, I explain how libel and slander actions are generally a rich person’s game, I explain to him the defences of truth (“justification”), fair comment, qualified privilege. I talk about the stress of litigation, how slander actions are rare birds that can bite back, while consuming three, four years of his time and spirit, never mind his paycheque.
So he says, “Well, maybe I should just put a bomb there, then.” We laugh. “I don’t recommend that,” I say. “Maybe you should just find another pub.”
But right after I hang up, I start to panic. I don’t know this guy from Adam. He sounded like a nice fellow; he was feeling hurt; he wanted my help. I don’t want to sic the cops on him if he’s just been making a casual joke. That wouldn’t be good for anybody, and certainly not for my chances of being hired back at the firm. On the other hand, what if life and limb really are at stake? The guy feels aggrieved; I’ve just told him that he probably has no legal recourse.
So I scamper to the senior partners. My articling principal, Joyce Harris, a woman of deep experience who rose in the profession when female counsel were rare and not well tolerated, listens carefully to my narration of the call. Then she phones the guy and grills him on speakerphone, with half the firm present – a textbook cross-examination that itself is an education. Joyce makes it clear that we’re considering involving the police.
The ethics there? Well, if the guy had been hassled by the police about the matter, he might have argued that he thought there was solicitor-client privilege – that I was retained – because I did give him some advice. But this was a cold call, by him, that resulted in a preliminary, pre-retainer discussion. Any idea of a relationship would have been what is sometimes called a ghost retainer, supernatural, imaginary. Most barristers would say the same, I think, although our firm still could have had a hassle over the contrary argument. Then again, there was the possibility of an incipient crime. Which raised my immediate ethical problem and brings us back to Joyce.
The guy was cooperative with her, and a little sheepish. He reiterated that he’d been joking. We felt reassured. But after hanging up, Joyce took one further step. If you’ve encountered the so-called bloody-shirt problem of legal ethics (where a client lands counsel, his retained lawyer, with incriminating evidence), you will have a good idea of what it was.
Joyce called the practice advisory division of the law society, and got the view of counsel there on how we’d handled things. This of course gave us another senior, earnest, and – most important – official look at the matter. Not to put too fine a point on it, it helped cover our behinds with the professional regulator. Practice Advisory (another deeply experienced barrister that day, whom Joyce knew well) said that as long as we were convinced that the guy was no actual danger to the public, we seemed to have managed the problem effectively. And sure enough, we heard no more about it. But it was one of those sweating-bullets incidents that most lawyers can recount from their articling days. I have a good few, some more of which I hope to share in this blawg.
**If you’d like to be notified of each new posting, let me know via the “contact” page and I’ll put you on my e-mail list.**