The following appeared in the National Post on Monday July 30, 2007.
Under Canadian law, group libel is not actionable. No matter how malicious or false a comment about a group is, the comment cannot give rise to damages. You may safely call all bankers thieves - even if identifying just one of them by name would make you liable to be sued for defamation.
In principle, the only recourse for a defamed group is to answer the libel and defend their reputation in the court of public opinion. That is what I am doing here in response to a recklessly erroneous attack on lawyers in the Aug. 6 issue of Maclean's magazine.
Under a full-page cover declaring that "Lawyers Are Rats," the magazine published an interview with Philip Slayton, author of the recently released book, Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession. Like that book, the magazine interview collectively portrays lawyers as unethical, corrupt, sexually predatory crooks.
The title on the cover of Maclean's is especially objectionable: The connection of lawyers to rats brings to mind the opening scene from Der ewige Jude ("The Eternal Jew"), the grotesque 1940 Nazi anti-Jewish film showing a pack of rats emerging from a sewer, juxtaposed with a crowd of Jews in a bustling Polish street.
The number of slurs, half truths and outright false statements contained within the Maclean's article is shocking. To take one example, the article says: "What can get you disbarred in Alberta won't have much effect on you at all in, say, Nova Scotia." Well, I personally have acted on discipline matters in Ontario. And I can report that a lawyer who has been disbarred, or even merely disciplined, in Ontario will find it virtually impossible to join the bar of another province.
In other cases, the Maclean's article seeks to be more sensationalistic. Mr. Slayton has cherry-picked the worst examples of lawyer misconduct -- taken from a pool of thousands of lawyers litigating millions of cases -- and used these few isolated cases to tarnish the reputation of a whole class of professionals who, like their fellow Canadians, generally are honest, hard-working and community-minded.
Consider the reference to a Manitoba criminal lawyer who, after being disbarred, committed sexual offences against children.
This case is indeed terrible. But given that the fellow had already been thrown out of the lawyers' guild, what does it say about the profession? To the extent it proves anything, it is the effective functioning of the legal discipline system. Or is the author somehow arguing that the practice of law turns people toward pedophilia?
The article also refers to a bizarre case in which a Winnipeg lawyer actually hired enforcers to beat people up. This criminal is behind bars - but the impression given is that lawyers are mobsters in good suits. From such bizarre incidents, the article breathlessly generalizes about the "amoral nature of legal practice." Lawyers also are described as "oversexed" and (gasp!) "interested in profit." In the same breath, one might cite Tonya Harding as evidence that the world of figure skating is dominated by thugs.
A lawyer's job is to defend his or her clients' legal interests, and the vast majority do a good job of it. Despite their busy schedules, many lawyers provide free legal services in their communities, churches and charitable organizations. Indeed, I know few lawyers who do not give freely of their time for good causes.
Lawyers and law are essential to society. Just last week, in this newspaper, Washington Post writer Anne Applebaum pointed out that Russia has become a desperate, dangerous place in large part because it lacks "a working legal system." Countries where lawyers do not operate freely, such as Zimbabwe, are countries in chaos. "The first thing we do, let's kill all the lawyers," declares the treacherous Dick the Butcher in Shakespeare's Henry VI. The comment often is cited as an indictment of lawyers. But taken in context, it shows that the surest path to tyranny is to eliminate the professionals whose job it is to protect and promote freedom and justice.
In my years as a lawyer, I have seen many things. These include a (very) few lawyers who intentionally lied about their billing, slept with a client or defrauded someone. Where discovered, those lawyers have been disbarred and, in some cases, sent to jail. That's how our system works: If a lawyer breaks the law or the professional code of conduct, he or she is punished just like everyone else.
The distorted, one-sided cover story in Maclean's this week is an insult to the country's legal profession. One can only hope it isn't a trend. Bankers, architects, engineers, dentists, accountants - who will be targeted by the next smear campaign? I suppose we should keep our eyes on the cover of coming issues of Maclean's to find out. - James Morton teaches Evidence at Osgoode Hall Law School and is President of the Ontario Bar Association. He is proud to be a lawyer.
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