M Kowalski: Lawyers and Conflicts – the Myopia Continues

Mitch Kowalski posted to SLAW here: http://www.slaw.ca/2013/08/29/lawyers-and-conflicts-the-myopia-continues/

Yesterday, retired judge Dennis O’Connor resigned from heading up the Toronto Police use of force review. He did so because of a perceived conflict of interest over his role at Borden Ladner Gervais LLP; BLG represents the Toronto Police when they are sued.

According to the Toronto Sun, O’Connor said in a statement, “We were surprised by the objections raised by lawyers for some of the victims’ families to my conducting the review. We had thought that I could structure and conduct the review to satisfy any concern but apparently not….. I regret that this issue has arisen but I am of the view that if there is any possibility of concern in a matter such as this, it is best to address it at the outset.”

To most observers this resignation was a long time coming and illustrates the acute myopia that some lawyers have when it comes to conflicts of interest. Clearly both Mr. O’Connor and BLG wanted to be part of such a high profile matter – no wonder he took so long (16 days) to see the obvious conflict; the rewards were too great.

This is nothing new for the legal profession.

Most lawyers are aware that Ontario Bencher Peter Wardle is making a play to remain on the LSUC appeals panel for the Joe Groia disciplinary matter. This, despite the fact that his firm, Wardle Daley Bernstein is currently retained by the Law Society to represent it in four proceedings: Law Society of Upper Canada v. Small; Law Society of Upper Canada v. Chiarelli; Law Society of Upper Canada v. Feldman; and Sharma v. Law Society of Upper Canada. AND, there are an additional four proceedings in which Wardle Daley Bernstein are being retained by LawPRO to represent the Law Society: Alessandro et al. v. Law Society of Upper Canada; Lindhorst v. Law Society of Upper Canada et al.; Mundalai v. Law Society of Upper Canada; and Tiago et al. v. Law Society of Upper Canada et al.

As Mr. Wardle did not, as Mr. O’Connor eventually did, see the obvious conflict, LSUC and Mr. Groia will waste money and time fighting over it. Clearly Mr. Wardle is not of Mr. O’Connor’s view that, “if there is any possibility of concern in a matter such as this, it is best to address it at the outset.” And so another panel was convened in July to determine if Mr. Wardle is to be conflicted out of the appeals panel. That decision is yet to be rendered.

Why Mr. Wardle should be permitted to be a Bencher when he financially benefits from work done by his firm for the Law Society is another interesting question.

Certainly directors on a corporate board of directors who have even the faintest grasp of good governance, would never allow a director to so financially benefit.

Why is it OK for a Bencher?

It all seems a bit too cozy, doesn’t it?

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