Are Lawyers Rats
Open letter to the Bar Association, by a member of the legal profession, calling for the disbarment of Alan Dershowitz.
Content
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Are Lawyers Rats?
Introduction
This paper will focus on the reputation of the legal profession, how it has earned the respect
and credibility in the eyes of many people, while at the same time lawyers have been called rats
by none other but the former dean of an Ontario law school.
In law school we are told by some law professors that a good lawyer must defend his client even
if his client is clearly guilty; yet some professors teach ethics proclaiming that aside from his
responsibilities to his client, a lawyer has obligations to the court and the general public.
While the second group of professors is correct, the misconception promoted by the first group
of professors can lead young lawyers to engage in dubious practices, claiming that it is their
obligation to protect their client and help him get off the hook even in a case where they know
that the client has maliciously committed a crime such as murder.
Thesis
This paper will discuss several ways in which a lawyer’s behaviour may bring honor or disgrace
on the reputation of the legal profession. Because the legal profession is self-regulated, the
action or inaction of the Law Society in disciplining an offending member thus either prohibits
or enables lawyers to breach the standard of ethics expected by the public; the decision to
discipline or ignore corrupt lawyers is therefore directly related to the reputation the legal
profession will earn in the eyes of the masses.
Roadmap
The paper will examine the ways in which the actions of a few members can earn a respectable
reputation or the title rats for themselves and subsequently the entire legal profession.
The paper will proceed by analyzing cases in which lawyers acted unethically and evaluate how
the court system responded.
The paper will the argue that unethical behaviour by a member of the bar should not be
covered up, as unethical behaviour by a lawyer is generally an indication of an unethical
personality that will ultimately bring a great deal of disgrace upon the legal profession.
The paper will then argue that both the law societies and the court system are responsible for
unethical behaviour by lawyers where a court’s actions or inactions empower unscrupulous
lawyers to continue with their unethical behaviour.
Next, the paper will analyze why law societies often overlook unethical behaviour on the part of
lawyers.
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2
Finally, the paper end with a recommendation for law societies around the world to focus more
on protecting the general public, as that will ultimately contribute to improving the reputation
of the legal profession, which is of primary concern to law societies.
Background
The legal profession, though honorable, has been lately the victim of negative publicity with
Maclean's magazine’s infamous cover story “Lawyers Are Rats”.1 In his book Lawyers Gone Bad:
Money, Sex and Madness in Canada's Legal Profession,2 Philip Slayton admits that not all
Canadian lawyers are bad; however, Maclean's magazine still chose to declare that lawyers are
rats, which basically paints the entire profession with the same brush.
In every industry including the legal profession, there are unscrupulous members; however we
do not hear similar comments about other professions, even though the percentage of
unscrupulous members in those industries may arguably be higher. Some lawyers may claim
that statements such as “Lawyers Are Rats” are made out of jealousy or resentment due to the
exorbitant fees lawyers command. However, commanding exorbitant fees does not explain why
lawyers are more hated than other professionals whose earnings parallel that of lawyers. The
only way the actions of a few corrupt members can earn a disgraceful title for an entire
profession is when the profession as a whole actively or passively sanctions the disgraceful
actions.
The legal profession is separately policed in each jurisdiction by a local Law Society or Bar;
however, in the eyes of the public we are one profession and the actions or inactions of one Law
Society or Bar can affect the public perception of the legal profession as a whole.
Ethical issues faced by the legal profession
This paper will focus on ethical issues faced by the legal profession. These issues may arguably
be those that define our reputation in the eyes of the masses.
The following four issues will be discussed:
1. The extent that a lawyer may ethically act to advance his client’s interest where his
actions unfairly violate the rights of his client’s opponent or breach the lawyer’s
obligation to the court;
2. Whether a lawyer can take his client’s word as fact when the client claims he is innocent,
even in a case where the lawyer has reason to believe that his client is lying;
3. Whether legal action can be brought against a law society for failing to take action
against a lawyer who acted like a rat, particularly in cases where the lawyer not only
defended his client who was clearly guilty, but went a step further and brought malicious
charges against the innocent;
1
Kate Fillion “Lawyers Are Rats,” McLeans Magazine, (6 August 2007) at p 18, online: FranchiseFool.com
<https://lesstewart.wordpress.com/2009/01/14/lawyers-are-rats-a-top-legal-scholar-exposes-the-corruption-ofhis-professio/>.
2 Philip Slayton, Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession, (Toronto: Viking
Canada, 2007) [Lawyers Gone Bad].
2
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4. Whether, considering that the lawyer is truly an agent of the court, it is ethical for a
senior lawyer to go full force in examination of the opposing party especially when it is
clear that the playing field is far from even.
1. The Extent That A Lawyer May Ethically Act To Advance His Client’s Interest Where His Actions
Unfairly Violate The Rights Of His Client’s Opponent Or Breach The Lawyer’s Obligations To The
Court.
In our criminal law class we were told that an individual that will not defend anybody, including
the most vicious criminal, has no business becoming a lawyer. The dangers of this method of
educating the next generation of lawyers is elaborated on by Julia Renouf in her book review of
Slayton’s Lawyers Gone Bad. In the review, Renouf states that “students are taught in law
school that it is not their job to judge their clients, but to assist them in achieving their
objectives by any means legally possible[.]”3 Teaching law students to focus on the prize and
forget about morality can ultimately lead lawyers to create new, unethical, legal means.
This method of educating law students may not only create the problem upon which we are
frowning, it also throws the responsibility of unscrupulous lawyers’ actions at the profession at
large as it legitimizes their actions.
It is important to note that while there are some professors that preach the motto of winning at
any cost, the policy of the Canadian Bar Association (“CBA”) and the Law Society of Upper
Canada (“LSUC”) strongly condemns this course of action. The CBA’s Code of Professional
Conduct4 states that a “lawyer must not, … (a) abuse the process of the tribunal by instituting or
prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on
the part of the client and are brought solely for the purpose of injuring another party[.]”
The LSUC states in the Rules of Professional Conduct5 that “[i]t is an abuse of the court or
regulatory authority’s process to threaten to make or advance a complaint in order to secure
the satisfaction of a private grievance. Even if a client has a legitimate entitlement to be paid
monies[.]”6
While a course of action may not break the letter of the law, lawyers should avoid it if it is not
morally correct. A course of action can be morally incorrect even if it is legal, as laws are written
broadly, are subject to interpretation, and are not tailored for specific situations. An
unscrupulous lawyer may therefore find ways to manipulate the system and interpret laws in
ways its authors did not intend. While a lawyer who violates the spirit of the law may claim that
he has done nothing wrong according to the letter of the law, as he has not broken the law in
the literal sense, he has definitely not met the higher standard of integrity which requires that
“a lawyer’s conduct should reflect favourably upon the legal profession, inspire the confidence,
3
Julia Renouf, “Appeal: Review of Current Law and Law Reform” (2008) 13 Appeal 99 – 101, at para 9.
The Code, c IX subsection 2(a), [The Code].
5
Rules of Professional Conduct, The Law Society Of Upper Canada, online:
http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159, [The Rules].
6
Ibid at c 3 s 3.2-5.1 commentary [1].
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respect and trust of clients and of the community, and avoid even the appearance of
impropriety.”7
The LSUC also has the power to penalize lawyers acting as rats, thus reflecting poorly on the
legal profession, as the court states in Law Society of Alberta v. Hammoud,8 “the Law Society
has broad powers to declare conduct to be deserving of sanction. The Law Society's primary
concern is conduct that reflects poorly on the profession.”9 It would therefore seem as if the
legal profession does not tolerate, nor does it need to tolerate dishonesty. However, if the
profession truly does not tolerate dishonesty, it should use its powers to clean up its house by
penalizing not only those who breach the code of conduct, but also those who advocate for this
unethical conduct.
Examining the legal profession’s response to charges of misconduct in Lawyers Gone Bad, an
article in the National Post notes: “[a]t meetings across Canada, seriously outraged lawyers
urged defamation actions, boycotts of Rogers products (Rogers owns Maclean's) and shared
tales about the book's author, Philip Slayton.”10 However, this ad hominem response would
arguably further damage the reputation of the profession instead of defending it.
By not dealing with the issues Slayton has raised, the legal profession is, in effect, sanctioning
the disgraceful conduct of the few, and rightfully deserves the title “rats.”
2. Whether A Lawyer Can Take His Client’s Word As Fact When The Client Claims He Is Innocent,
Even In A Case Where The Lawyer Has Reason To Believe That His Client Is Lying.
The Rules state that“[a] lawyer shall not act or do anything or omit to do anything in
circumstances where he or she ought to know that, by acting, doing the thing or omitting to do
the thing, he or she is being used by a client, by a person associated with a client or by any other
person to facilitate dishonesty, fraud, crime or illegal conduct.”11 The problem is that some
lawyers claim that they sincerely believe that their client is right. This claim is often absurd,
especially when it comes from high profile lawyers who are generally not considered naïve, such
as Alan Dershowitz. However, in justification to their claim, it can be said that these high profile
lawyers truly believe their clients, as they themselves are sympathetic or even emotionally
attached to their client’s criminal activity. This works in concert with Slaton’s view, as he states
that “sometimes it may not be the crime that is sensually appealing; it may be the criminal
himself who is the attraction. ...Admiration, even love, explains what money, or other motives,
cannot.”12 A case involving former Harvard Law professor Alan Dershowitz, who has defended
7
Ibid at c2 s 2.1-1 [2].
Law Society of Alberta v. Hammoud [2012] LSDD No 253.
9
Ibid at para 22.
10
Fifth paragraph of “The rats fight back,” Editorial, National Post, online:
<http://www.nationalpost.com/scripts/story.html?id=bfb0717d-eabe-4716-94da-aa2e34c9d8c4&k=4220>.
11
Supra note 5, at c 3 s 3.2-7.1.
12 Supra note 2 at p 6.
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vicious criminals including Boruch Lebovits, a serial child molester,13 demonstrates this point.
Dershowitz claimed that regardless of the clear proof of Lebovits’ guilt, he truly believed that he
was innocent. In his quest to clear Lebovits of any wrongdoing, Dershowitz then filed extortion
charges against Sam Kellner, the father of one of Lebovits’ victims. Dershowitz stated that he
had incriminating telephone recordings. Those recordings allgedly included conversations
between Kellner and Lebovits’ son where Kellner stated that he would drop the charges for the
right price,14 but these recordings ultimately proved to be fabricated. Dershowitz’s admiration
and love for this pedophile was an extension of his attachment to pedophilia in general, as was
recently discovered in the Dershowitz-Epstein-Prince Andrew scandal.
Slayton's explanation can more fittingly be applied to the legal profession as a whole, which
should not be benefitting financially from unethical activity. This may be the only explanation
available to explain why the legal profession would cover up on the unscrupulous behaviour it
decries. This may very well be what has earned our profession the title rats.
3. Whether Legal Action Can Be Brought Against A Law Society For Failing To Take Action
Against A Lawyer Who Acted Like A Rat And Not Only Defended His Client Who Was Clearly
Guilty, But Went A Step Further And Brought Malicious Charges Against The Innocent.
The Rules state: “In addition to other advice appropriate in the circumstances, a lawyer shall
encourage a client who has a claim or complaint against an apparently dishonest licensee to
report the facts to the Law Society as soon as reasonably practicable.”15 It would seem from this
rule that the LSUC would sincerely like to eradicate corruption from the legal profession.
However, in many jurisdictions, complaining against a lawyer may cause the victim to be
penalized, not the lawyer. In Mccullock-Finney v Barreau Du Quebec,16 Christina Finney sued the
Quebec Bar Association (“the bar”). Finney argued that the bar had been negligent by not
protecting the public from Eric Belhassen,17 who had a history of 23 misconduct charges.18 The
court ruled against Finney’s claim, due to the immunities granted to the bar by s 193 of the
Quebec Professional Code,19 which states that
[t]he following persons or bodies cannot be prosecuted by reason of acts engaged
in in good faith in the performance of their duties or functions: (1) a professional
inspection committee or a member, inspector, expert or the secretary of such
13
See page 25 line 7 online: <http://www.scribd.com/doc/227487260/Rabbi-Cantor-Baruch-M-Lebovits-GuiltyPlea-to-Oral-Sex-with-a-minor>, for details of what one of Lebovits’ many victims was put through.
14
Paraphrased information regarding the alleged recordings, reported by Sharon Otterman, “Judge Dismisses
Charges Against Whistle-Blower in Sexual Abuse Case,” The New York Times (7 March, 2014) online:
<http://www.nytimes.com/2014/03/08/nyregion/prosecutors-expected-to-dismiss-charges-against-whistleblower-in-sex-abuse-case.html?_r=0>.
15
Supra note 5, at c 7 s 7.1-4.
16
Mccullock-Finney v Barreau Du Quebec, [1999] RRA 83.
17
Details of this French language case are available in Lawyers Gone Bad, at p 214.
18
Lawyers Gone Bad, at p 212.
19
Quebec Professional Code, online:
http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/C_26/C26_A.html,
[Quebec Code].
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committee, or the person responsible for professional inspections appointed
under section 90; (2) a syndic, an expert whose services are retained by a syndic
and any other person assisting a syndic in the exercise of inquiry functions; (3) a
review committee referred to in section 123.3 or a member of such committee; (4)
a disciplinary council or a member or the secretary of such council; (5) the
Professions Tribunal or a judge thereof; (6) the board of directors, a member of
the board of directors or the secretary of the order; (7) a committee of inquiry
established by a board of directors, a member of such a committee or an
investigator of the order[.]” 20
The court therefore stated that the bar was immune to any action against it unless Finney could
prove intentional wrongdoing, which, according to the court, she had failed to prove.21
However, the Quebec Court of Appeal later overturned this decision on the basis that the bar
had failed to protect the public as required by s 23 of the Quebec Professional Code, which
states that “[t]he principle function of each corporation shall be to ensure the protection of the
public[.]”22 Therefore the bar did not enjoy s 193 immunity.23 The measly $25,000 awarded to
Finney, though, was arguably too small an award to be considered restitution for what Finney
had gone through due to the negligence of the bar and it was also too small a punitive measure
against a 20,000-member bar to deter future inaction.
Through this ruling, the court has effectively told the public that the law society, which
represents lawyers, should be held to the same standard as other professional organizations.
However, given that lawyers are expected to be held to a higher ethical standard than other
professionals, the law society that represents them should likewise be held to a higher ethical
standard than other professional organizations.
While Finney was awarded $25,000, however because of the uphill battle required to bring
about this reward, the court effectively ruled that the law society is held to the same standard
the court in Cooper v Hobart24 required from other professional organizations, as the court
states that “even though the Registrar might reasonably have foreseen that losses to investors
in Eron would result if he was careless in carrying out his duties under the Act, there was
insufficient proximity between the Registrar and the investors to ground a prima facie duty of
care.”25 While the court in Cooper stated that it cannot place a duty of care on the registrar as
“[s]uch a duty would no doubt come at the expense of other important interests, of efficiency
and finally at the expense of public confidence in the system as a whole.”26 In Finney’s case, a
duty of care would only enforce a higher duty of care already required from lawyers.
20
Ibid, s 193.
Supra note 17.
22
Supra note 19 at s 23.
23
McCullock-Finney c Barreau du Québec, 2002 CanLII 9255, [2002] iijcan 9255, an English language paraphrase of
this case’s French language ruling can be found in Lawyers Gone Bad p 214-215.
24
Cooper v Hobart, 2001 SCC 79, [2001] S.C.J. No. 76, [Cooper].
25
Ibid at para 50.
26
Ibid.
21
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The courts practice of assisting the legal profession in washing itself clean of any responsibility
went a step further in the case of Finney c. Barreau du Québec,27 where Justice Carole Hallée
stated that Saint-onge and Lavery, who represented the bar, behaved in an exemplary fashion.
In response to Finney’s claim that all her troubles and worries were due to persecution by
lawyers, Justice Hallée responded by throwing the blame on Finney, arguing that only she could
stop her troubles. In other words, Finney’s decision to fight the system is to blame, rather than
the negligence of the bar. By issuing these statements, the court is sending a clear message: the
bar, which has clearly neglected their duty of protecting the public, will still be exalted by the
court while the blame for the bar’s misconduct will be placed on the victim.
Though the legal profession in each jurisdiction is independently regulated, the average layman
does not differentiate between an Ontario lawyer, a Quebec lawyer, or a New York lawyer;
therefore, the statements issued by the Quebec Superior Court not only taints the reputation of
the legal profession in Quebec, it opens the door to judges and lawyers in other jurisdictions to
act unethically, thus bringing the administration of justice in all jurisdictions into disrepute. This
may help explain the results of a 2004 Leger poll, which found that only 44 percent of Canadians
trust lawyers, down from 54 percent two years earlier.28
Even though the Ontario Bar may consist of reputable lawyers, it will still suffer from the
unethical behaviour of lawyers such as Alan Dershowitz, and though such lawyers are a
minority, their notoriety, and in some cases their influence on the judiciary system, taints the
reputation of the entire legal profession.
In New York v Baruch Lebovits,29 Alan Dershowitz along with Arthur Aidala, who represented
serial pedophile Baruch Lebovits, in their quest to have their client’s conviction overturned,
resorted to unethical behaviour. This, together with the judiciary system that abetted their
behaviour, provided fodder to those who call lawyers rats.
Lebovits’ original conviction was set aside when
[h]is defense team (led by none other than Alan Dershowitz) convinced an
appeals court that the trial had been prejudiced by the prosecution’s failure to
share a police detective’s note about one of the witnesses expected to be
called by the defense. While the court said Lebovits was denied his right to a
fair trial, it also noted that there was sufficient evidence to prove he was guilty
of the same crimes.30
27
Finney c. Barreau du Québec, [2002] J.Q. no 1522.
See Leger Marketing, How Canadians perceive various professions (Montreal: 2004), online:
<http://www.6thdistrictiaff.com/2004%20Leger%20Poll%20of%20Professions%20trusted.pdf>.
29
Online: <http://www.scribd.com/doc/227487260/Rabbi-Cantor-Baruch-M-Lebovits-Guilty-Plea-to-Oral-Sex-witha-minor>.
30
Emily Shire, “The Orthodox Sex Abuse Crackdown That Wasn’t,” The Daily Beast (10 July 2014) online:
<http://www.thedailybeast.com/articles/2014/10/07/the-orthodox-sex-abuse-crackdown-that-wasn-t.html>.
28
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The fact that there was sufficient evidence to prove that Lebovits was guilty did not stop
Dershowitz from lying, threatening to produce a “smoking gun” recording that never existed31
and fraudulently arranging for the incarceration of Sam Kellner, the father of one his client’s
victims,32 all in order to secure the release of his client.33 When Kellner was finally released as
the fabricated story against him fell apart, Dershowitz did not give up: he claimed that another
smoking gun recording existed34 and had a shouting match with supporters of the victim at the
courthouse.35
While the use of threats is generally prohibited in the practice of law,36 no disciplinary action
was taken against Dershowitz. The judge’s statement after Lebovits’ guilty plea,37 similar to
Justice Hallée’s statement in Finney c. Barreau du Québec, empowered corrupt lawyers to
continue down the path that has tarnished the reputation of the legal profession.
It would seem logical that the law society should be held responsible for the damage created by
a lawyer in cases where the law society failed to take action against a lawyer who acted like a
rat, which subsequently enabled that lawyer to continue to hurt members of the public.38
However, because the legal profession is self-governed, it is likely that nothing will be done even
if the law society is truly responsible for the actions of corrupt lawyers.
4. Considering that the lawyer is truly an agent of the court, is it ethical for a senior lawyer to go
full force in examination of the opposing party when it is clear that the playing field is far from
even?
This question is particularly applicable when an opposing party who, due to financial restraints,
has hired an inexperienced lawyer. In such a case, the party with the senior lawyer may claim
that it is a free country and each party can opt to hire any lawyer they wish. The influential party
or lawyer can also claim that enacting restrictions and preventing one party from hiring a better
lawyer than the opposition is a grey area where it would be hard to draw the line. This paper,
31
After Kellner’s lawyer told Dershowitz to go ahead and publish the recordings, Dershowitz sheepishly conceded
that the smoking gun never existed. Please see online: <https://www.scribd.com/doc/234028476/Letter-to-JudgeDwyer>, where Niall Macgiollabhui, Kellner’s lawyer, documents the mobster style action Dershowitz took in order
to vindicate Lebovits.
32
See Mosi Secret “Prosecution Backtracks in Sex-Abuse Fraud Case” The New York Times
(8 July 2013) online: http://www.nytimes.com/2013/07/09/nyregion/prosecution-backtracks-in-sex-abuse-fraudcase.html>, regarding how Aidala, one of Lebovits’ lawyers who had connections with the District Attorney’s office,
arranged for the incarceration of Kellner in order to vindicate Lebovits.
33
Sharon Otterman, “Judge Dismisses Charges Against Whistle-Blower in Sexual Abuse Case,” The New York Times
(7 March, 2014) online: <http://www.nytimes.com/2014/03/08/nyregion/prosecutors-expected-to-dismisscharges-against-whistle-blower-in-sex-abuse-case.html?_r=0>.
34
To date, no valid recording has been produced by Dershowitz or Lebovits.
35
Supra note 33, at para 5.
36
Supra note 5 at c 3 s 3.2-5.
37
Available online: <http://www.scribd.com/doc/227487260/Rabbi-Cantor-Baruch-M-Lebovits-Guilty-Plea-to-OralSex-with-a-minor>, at page 31, line 12.
38
Judges and benchers should be under the same obligation as lawyers to take reasonable action to protect the
public, as The Code c XV commentary 1 states, “it is, therefore, proper for a lawyer to report to a governing body
any occurrence involving a breach of this Code.”
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however, seeks to analyze a case where it would be patently unfair to allow a party to hire an
aggressive senior lawyer without any restrictions on how it conducts the cross-examination of
witnesses. This can come into play in a child molestation case, where the molester hires an
aggressive lawyer to cross-examine the victim who may have had to gather all his courage to
publicly tell his story. The victim may also be a psychologically fragile child who had a hard time
standing up against his abuser in the first place. To force this child to face an aggressive lawyer,
and then to base justice on this matchup, would be grossly unfair. On the other hand, the
defense lawyer of the accused may claim that he must use every tool at his disposal to prove his
client’s innocence.
In order to properly address this question, it is first important to note that while a solicitorclient relationship prevents the lawyer from divulging confidential information including
information that would incriminate his client, this relationship should not require a lawyer to
conduct the cross examination in a way that will prejudice the victim.
If a lawyer aggressively cross-examines a witness knowing that the level of his aggressiveness is
wrong, then he arguably has no scruples and may be considered to be a coconspirator of the
crime. This would be a blatant violation of The Code which states that a “lawyer must not, … (i)
dissuade a material witness from giving evidence, or advise such a witness to be absent; (j)
knowingly permit a witness to be presented in a false or misleading way or to impersonate
another; (k) needlessly abuse, hector or harass a witness; (l) [or] needlessly inconvenience a
witness.” 39 This would seem to imply that a lawyer should not aggressively cross-examine a
witness where doing so would prevent the witness from properly conveying his testimony.
There are, however, those that claim that “[d]efence counsel’s function is not limited to
protecting the innocent from wrongful conviction, but includes also protecting those who are in
fact guilty against overreaching by the state.”40 However, this can arguably not be said in cases
of violent crime, as overreaching by the state should not be a concern where its effect is to
ensure public safety by preventing criminals from freely endangering ordinary citizens as The
Code states that “[a]dmissions made by the accused to the lawyer may impose strict limitations
on the conduct of the defence… Such admissions will also impose a limit upon the extent to
which the lawyer may attack the evidence for the prosecution.”41
For a senior lawyer to go full force in cross-examination of a child witness would place the
administration of justice in disrepute, as it will effectively prevent other vulnerable children
from coming forward and reporting abuse. Allowing for such behaviour would mean that the
legal system is effectively a partner in the crime that could result from the confidence criminals
would gain due to lack of fear of consequences. For the law society to overlook this type of
behaviour would undoubtedly add to the general public’s lack of trust of the legal profession,
which may lead to lawyers being called rats.
39
Supra note 4, at commentary 2, (i), (k) and (l).
Gavin Mackenzie, Lawyers and Ethics professional Responsibility and Dicipline, Carswell, c 7.4, at p 7-11.
41
Supra note 4, at commentary 11.
40
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Why Law Societies Often Overlook Unethical Behaviour
Law societies often cover up on unethical behaviour on the part of lawyers, not because they do
not care or because they are satisfied that this behaviour does not exist; on the contrary, it is
likely that they are mortified by its existence and are deeply concerned that should its existence
be publicized, the public would lose its confidence in the legal system. A law society may
therefore seek to hide any past occurrences from the public eye in the hope that these
misdemeanors will disappear. This is however a bankrupt theory. Covering up unethical
behaviour will send the message that the law society is not bothered by its existence; it will also
lower the risk for lawyers contemplating acting unethically in the future and it will allow past
offenders to continue their unethical behaviour. While covering up may hide embarrassing
information from the public eye for the short term, it will explode in the long term. Thus, not
only will unethical activity committed in the past be publicized, so will the steps the law society
took to cover it up, and the resulting mushroom of unethical behaviour will rear its ugly head in
full public view.
While immediate action taken to denounce violation of ethical rules may bring a small measure
of embarrassment on the legal profession, it will be matched by the public’s increase of
favourable perception toward the legal profession. This is because in every profession and in
every community there are so-called bad apples that act unethically. Given that members of the
legal profession are expected to live up to a higher standard, still it is unreasonable to expect
that all its members will actually live up to that higher standard. Because offenders do and
always will exist, law societies have procedures in place for how to deal with them. The
presence of unethical lawyers can be compared to the flu: it will always exist, but the
percentage of infected persons will be dependent on whether its existence is recognized and
proper steps are taken to treat and contain, or denied and thus allowed to spread freely.
This type of unchecked infection is precisely what happened with Alan Dershowitz. For years he
has been victimizing victims for the sake of covering up on the crimes of those who were able to
afford his hefty fees. The United States court system has turned a blind eye and has even
commended him.42 The court system bent its own rules by allowing Dershowitz to arrange a
plea deal for Jeffery Epstien, which included “a secret provision that immunized “any potential
co-conspirators” from federal prosecution. In other words, Dershowitz negotiated an agreement
that (if the allegations against him are true) shields him from prosecution for participating in a
child sex-trafficking ring.”43 While the US court system would have emerged as a hero if, in the
42
Supra note 37, where the judge stated that it is always a pleasure to deal with the Dershowitz family, this after
his client admitted to criminal activity that Dershowitz lied, threatened and arranged for incarceration of the father
of his client’s victim in order to deny.
43
A PDF copy of the section of the settlement that contains this clause is available at Nick Bryant “Flight Logs Put
Clinton, Dershowitz on Pedophile Billionaire’s Sex Jet,” Gawker (22 January, 2015) online:
<http://gawker.com/flight-logs-put-clinton-dershowitz-on-pedophile-billio-1681039971>, also online:
<https://www.scribd.com/doc/251906445/Edwards-Cassell-v-Alan-Dershowitz-Defamation-Lawsuit-1-6-2015> at
para 6 and 13.
10
11
name of justice, it had taken on such big names as Prince Andrew and Alan Dershowitz,44 the
legal system instead chose to hide the details and vindicate many of the coconspirators
including Dershowitz the lawyer. This lack of justice for the victims was a grave mistake, as the
lack of recourse for a wronged client may contribute more to the legal profession’s bad
reputation than non-ethical action taken by a lawyer. It seems that the courts are reluctant to
accept that a wrong was committed out of fear that such an admission would lower the respect
of the legal profession in the eyes of the public. However, it is the lack of justice that has earned
us the title rats; people would respect our profession more if they saw that its standards are
strictly enforced.
I believe that a lawyer who conducts his business ethically is clearly respected. When people say
lawyers are rats, they are referring to the Dershowitzs who are ultimately uncovered for what
they are. Covering up corruption not only fails to generate real honor for the legal system, it
results in a volcano of shame when details of a case that have been covered up begin to emerge
as has recently occurred with the Dershowitz-Epstein-Prince Andrew scandal,45 where the court
system has emerged as a coconspirator for the cover up they have enabled.
Most of the horror stories related to unethical behaviour on the part of lawyers relate to
lawyers who are repeat offenders. They generally start by testing the waters to see if they will
get away with bending the rules. The evil steadily grows, along with the blind eye the law
society turns to it in the hope it will disappear. This can be compared to covering a family of rats
with hay: while it may cover up the rats in the short term, the result will be an uncontrollable
rat epidemic. This explains how the legal profession earned itself the title rats.
Conclusion
The correct response from the legal profession to allegations that lawyers are rats is not to deny
the fact that there are incidents of unethical behaviour by lawyers; rather, law societies and
court systems should embrace the allegations and expel individuals such as Eric Belhassen and
Alan Dershowitz from their ranks. This will not only allow for the legal profession to rid itself
from members that prevent the profession from wearing the crown of an ethical profession,46 it
will show that the legal profession stands for justice, even at the cost of purging some of its own
members.
44
Who along with Jeffrey Epstein, had raped underage girls, United States District Court Southern District Of
Florida, Case No. 08-80736-Civ-Marra/Johnson online:
http://online.wsj.com/public/resources/documents/2015_0102_epsteindershowitz.pdf.
45
After allowing Dershowitz, who was already “known early on for successfully defending infamous criminals ...
[and] became notorious later for defending pornography, prostitution, obscenity[,]” to continue to neglect his duty
to the public and the court; when the truth finally began to emerge, Dershowitz under pressure mistakenly
revealed his true intentions in this video <https://www.youtube.com/watch?v=F9xvOaLte0E> (source of quote Brooklyn Daily Eagle (25 September 2003) online: <http://www.brooklyn.cuny.edu/bc/spotlite/news/092903.htm>.
46
See The Rules, c 2 s 2.1-1, commentary [1], [2] and [3].
11
12
The reason why the legal profession has not been able to live up to the golden standard may not
be because it is self-governed; on the contrary, it is likely that political pressure47 may be what is
preventing the legal profession from living up to its mandate.48 Regardless of what has
prevented the legal profession from doing so in the past, it is time for the legal profession to rise
as a knight in shining armor, and protect its honor by ruthlessly fighting for the truth.
47
For example, pressure from Buckingham palace that a US court should drop charges against Dershowitz in order
to protect prince Andrew, also see online: <https://www.scribd.com/doc/251520789/Jane-Doe-1-and-Jane-Doe-2v-U-S> where Epstein used government connections to secure an easier sentence.
48
Supra note 46.
12
Are Lawyers Rats?
Introduction
This paper will focus on the reputation of the legal profession, how it has earned the respect
and credibility in the eyes of many people, while at the same time lawyers have been called rats
by none other but the former dean of an Ontario law school.
In law school we are told by some law professors that a good lawyer must defend his client even
if his client is clearly guilty; yet some professors teach ethics proclaiming that aside from his
responsibilities to his client, a lawyer has obligations to the court and the general public.
While the second group of professors is correct, the misconception promoted by the first group
of professors can lead young lawyers to engage in dubious practices, claiming that it is their
obligation to protect their client and help him get off the hook even in a case where they know
that the client has maliciously committed a crime such as murder.
Thesis
This paper will discuss several ways in which a lawyer’s behaviour may bring honor or disgrace
on the reputation of the legal profession. Because the legal profession is self-regulated, the
action or inaction of the Law Society in disciplining an offending member thus either prohibits
or enables lawyers to breach the standard of ethics expected by the public; the decision to
discipline or ignore corrupt lawyers is therefore directly related to the reputation the legal
profession will earn in the eyes of the masses.
Roadmap
The paper will examine the ways in which the actions of a few members can earn a respectable
reputation or the title rats for themselves and subsequently the entire legal profession.
The paper will proceed by analyzing cases in which lawyers acted unethically and evaluate how
the court system responded.
The paper will the argue that unethical behaviour by a member of the bar should not be
covered up, as unethical behaviour by a lawyer is generally an indication of an unethical
personality that will ultimately bring a great deal of disgrace upon the legal profession.
The paper will then argue that both the law societies and the court system are responsible for
unethical behaviour by lawyers where a court’s actions or inactions empower unscrupulous
lawyers to continue with their unethical behaviour.
Next, the paper will analyze why law societies often overlook unethical behaviour on the part of
lawyers.
1
2
Finally, the paper end with a recommendation for law societies around the world to focus more
on protecting the general public, as that will ultimately contribute to improving the reputation
of the legal profession, which is of primary concern to law societies.
Background
The legal profession, though honorable, has been lately the victim of negative publicity with
Maclean's magazine’s infamous cover story “Lawyers Are Rats”.1 In his book Lawyers Gone Bad:
Money, Sex and Madness in Canada's Legal Profession,2 Philip Slayton admits that not all
Canadian lawyers are bad; however, Maclean's magazine still chose to declare that lawyers are
rats, which basically paints the entire profession with the same brush.
In every industry including the legal profession, there are unscrupulous members; however we
do not hear similar comments about other professions, even though the percentage of
unscrupulous members in those industries may arguably be higher. Some lawyers may claim
that statements such as “Lawyers Are Rats” are made out of jealousy or resentment due to the
exorbitant fees lawyers command. However, commanding exorbitant fees does not explain why
lawyers are more hated than other professionals whose earnings parallel that of lawyers. The
only way the actions of a few corrupt members can earn a disgraceful title for an entire
profession is when the profession as a whole actively or passively sanctions the disgraceful
actions.
The legal profession is separately policed in each jurisdiction by a local Law Society or Bar;
however, in the eyes of the public we are one profession and the actions or inactions of one Law
Society or Bar can affect the public perception of the legal profession as a whole.
Ethical issues faced by the legal profession
This paper will focus on ethical issues faced by the legal profession. These issues may arguably
be those that define our reputation in the eyes of the masses.
The following four issues will be discussed:
1. The extent that a lawyer may ethically act to advance his client’s interest where his
actions unfairly violate the rights of his client’s opponent or breach the lawyer’s
obligation to the court;
2. Whether a lawyer can take his client’s word as fact when the client claims he is innocent,
even in a case where the lawyer has reason to believe that his client is lying;
3. Whether legal action can be brought against a law society for failing to take action
against a lawyer who acted like a rat, particularly in cases where the lawyer not only
defended his client who was clearly guilty, but went a step further and brought malicious
charges against the innocent;
1
Kate Fillion “Lawyers Are Rats,” McLeans Magazine, (6 August 2007) at p 18, online: FranchiseFool.com
<https://lesstewart.wordpress.com/2009/01/14/lawyers-are-rats-a-top-legal-scholar-exposes-the-corruption-ofhis-professio/>.
2 Philip Slayton, Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession, (Toronto: Viking
Canada, 2007) [Lawyers Gone Bad].
2
3
4. Whether, considering that the lawyer is truly an agent of the court, it is ethical for a
senior lawyer to go full force in examination of the opposing party especially when it is
clear that the playing field is far from even.
1. The Extent That A Lawyer May Ethically Act To Advance His Client’s Interest Where His Actions
Unfairly Violate The Rights Of His Client’s Opponent Or Breach The Lawyer’s Obligations To The
Court.
In our criminal law class we were told that an individual that will not defend anybody, including
the most vicious criminal, has no business becoming a lawyer. The dangers of this method of
educating the next generation of lawyers is elaborated on by Julia Renouf in her book review of
Slayton’s Lawyers Gone Bad. In the review, Renouf states that “students are taught in law
school that it is not their job to judge their clients, but to assist them in achieving their
objectives by any means legally possible[.]”3 Teaching law students to focus on the prize and
forget about morality can ultimately lead lawyers to create new, unethical, legal means.
This method of educating law students may not only create the problem upon which we are
frowning, it also throws the responsibility of unscrupulous lawyers’ actions at the profession at
large as it legitimizes their actions.
It is important to note that while there are some professors that preach the motto of winning at
any cost, the policy of the Canadian Bar Association (“CBA”) and the Law Society of Upper
Canada (“LSUC”) strongly condemns this course of action. The CBA’s Code of Professional
Conduct4 states that a “lawyer must not, … (a) abuse the process of the tribunal by instituting or
prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on
the part of the client and are brought solely for the purpose of injuring another party[.]”
The LSUC states in the Rules of Professional Conduct5 that “[i]t is an abuse of the court or
regulatory authority’s process to threaten to make or advance a complaint in order to secure
the satisfaction of a private grievance. Even if a client has a legitimate entitlement to be paid
monies[.]”6
While a course of action may not break the letter of the law, lawyers should avoid it if it is not
morally correct. A course of action can be morally incorrect even if it is legal, as laws are written
broadly, are subject to interpretation, and are not tailored for specific situations. An
unscrupulous lawyer may therefore find ways to manipulate the system and interpret laws in
ways its authors did not intend. While a lawyer who violates the spirit of the law may claim that
he has done nothing wrong according to the letter of the law, as he has not broken the law in
the literal sense, he has definitely not met the higher standard of integrity which requires that
“a lawyer’s conduct should reflect favourably upon the legal profession, inspire the confidence,
3
Julia Renouf, “Appeal: Review of Current Law and Law Reform” (2008) 13 Appeal 99 – 101, at para 9.
The Code, c IX subsection 2(a), [The Code].
5
Rules of Professional Conduct, The Law Society Of Upper Canada, online:
http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159, [The Rules].
6
Ibid at c 3 s 3.2-5.1 commentary [1].
4
3
4
respect and trust of clients and of the community, and avoid even the appearance of
impropriety.”7
The LSUC also has the power to penalize lawyers acting as rats, thus reflecting poorly on the
legal profession, as the court states in Law Society of Alberta v. Hammoud,8 “the Law Society
has broad powers to declare conduct to be deserving of sanction. The Law Society's primary
concern is conduct that reflects poorly on the profession.”9 It would therefore seem as if the
legal profession does not tolerate, nor does it need to tolerate dishonesty. However, if the
profession truly does not tolerate dishonesty, it should use its powers to clean up its house by
penalizing not only those who breach the code of conduct, but also those who advocate for this
unethical conduct.
Examining the legal profession’s response to charges of misconduct in Lawyers Gone Bad, an
article in the National Post notes: “[a]t meetings across Canada, seriously outraged lawyers
urged defamation actions, boycotts of Rogers products (Rogers owns Maclean's) and shared
tales about the book's author, Philip Slayton.”10 However, this ad hominem response would
arguably further damage the reputation of the profession instead of defending it.
By not dealing with the issues Slayton has raised, the legal profession is, in effect, sanctioning
the disgraceful conduct of the few, and rightfully deserves the title “rats.”
2. Whether A Lawyer Can Take His Client’s Word As Fact When The Client Claims He Is Innocent,
Even In A Case Where The Lawyer Has Reason To Believe That His Client Is Lying.
The Rules state that“[a] lawyer shall not act or do anything or omit to do anything in
circumstances where he or she ought to know that, by acting, doing the thing or omitting to do
the thing, he or she is being used by a client, by a person associated with a client or by any other
person to facilitate dishonesty, fraud, crime or illegal conduct.”11 The problem is that some
lawyers claim that they sincerely believe that their client is right. This claim is often absurd,
especially when it comes from high profile lawyers who are generally not considered naïve, such
as Alan Dershowitz. However, in justification to their claim, it can be said that these high profile
lawyers truly believe their clients, as they themselves are sympathetic or even emotionally
attached to their client’s criminal activity. This works in concert with Slaton’s view, as he states
that “sometimes it may not be the crime that is sensually appealing; it may be the criminal
himself who is the attraction. ...Admiration, even love, explains what money, or other motives,
cannot.”12 A case involving former Harvard Law professor Alan Dershowitz, who has defended
7
Ibid at c2 s 2.1-1 [2].
Law Society of Alberta v. Hammoud [2012] LSDD No 253.
9
Ibid at para 22.
10
Fifth paragraph of “The rats fight back,” Editorial, National Post, online:
<http://www.nationalpost.com/scripts/story.html?id=bfb0717d-eabe-4716-94da-aa2e34c9d8c4&k=4220>.
11
Supra note 5, at c 3 s 3.2-7.1.
12 Supra note 2 at p 6.
8
4
5
vicious criminals including Boruch Lebovits, a serial child molester,13 demonstrates this point.
Dershowitz claimed that regardless of the clear proof of Lebovits’ guilt, he truly believed that he
was innocent. In his quest to clear Lebovits of any wrongdoing, Dershowitz then filed extortion
charges against Sam Kellner, the father of one of Lebovits’ victims. Dershowitz stated that he
had incriminating telephone recordings. Those recordings allgedly included conversations
between Kellner and Lebovits’ son where Kellner stated that he would drop the charges for the
right price,14 but these recordings ultimately proved to be fabricated. Dershowitz’s admiration
and love for this pedophile was an extension of his attachment to pedophilia in general, as was
recently discovered in the Dershowitz-Epstein-Prince Andrew scandal.
Slayton's explanation can more fittingly be applied to the legal profession as a whole, which
should not be benefitting financially from unethical activity. This may be the only explanation
available to explain why the legal profession would cover up on the unscrupulous behaviour it
decries. This may very well be what has earned our profession the title rats.
3. Whether Legal Action Can Be Brought Against A Law Society For Failing To Take Action
Against A Lawyer Who Acted Like A Rat And Not Only Defended His Client Who Was Clearly
Guilty, But Went A Step Further And Brought Malicious Charges Against The Innocent.
The Rules state: “In addition to other advice appropriate in the circumstances, a lawyer shall
encourage a client who has a claim or complaint against an apparently dishonest licensee to
report the facts to the Law Society as soon as reasonably practicable.”15 It would seem from this
rule that the LSUC would sincerely like to eradicate corruption from the legal profession.
However, in many jurisdictions, complaining against a lawyer may cause the victim to be
penalized, not the lawyer. In Mccullock-Finney v Barreau Du Quebec,16 Christina Finney sued the
Quebec Bar Association (“the bar”). Finney argued that the bar had been negligent by not
protecting the public from Eric Belhassen,17 who had a history of 23 misconduct charges.18 The
court ruled against Finney’s claim, due to the immunities granted to the bar by s 193 of the
Quebec Professional Code,19 which states that
[t]he following persons or bodies cannot be prosecuted by reason of acts engaged
in in good faith in the performance of their duties or functions: (1) a professional
inspection committee or a member, inspector, expert or the secretary of such
13
See page 25 line 7 online: <http://www.scribd.com/doc/227487260/Rabbi-Cantor-Baruch-M-Lebovits-GuiltyPlea-to-Oral-Sex-with-a-minor>, for details of what one of Lebovits’ many victims was put through.
14
Paraphrased information regarding the alleged recordings, reported by Sharon Otterman, “Judge Dismisses
Charges Against Whistle-Blower in Sexual Abuse Case,” The New York Times (7 March, 2014) online:
<http://www.nytimes.com/2014/03/08/nyregion/prosecutors-expected-to-dismiss-charges-against-whistleblower-in-sex-abuse-case.html?_r=0>.
15
Supra note 5, at c 7 s 7.1-4.
16
Mccullock-Finney v Barreau Du Quebec, [1999] RRA 83.
17
Details of this French language case are available in Lawyers Gone Bad, at p 214.
18
Lawyers Gone Bad, at p 212.
19
Quebec Professional Code, online:
http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/C_26/C26_A.html,
[Quebec Code].
5
6
committee, or the person responsible for professional inspections appointed
under section 90; (2) a syndic, an expert whose services are retained by a syndic
and any other person assisting a syndic in the exercise of inquiry functions; (3) a
review committee referred to in section 123.3 or a member of such committee; (4)
a disciplinary council or a member or the secretary of such council; (5) the
Professions Tribunal or a judge thereof; (6) the board of directors, a member of
the board of directors or the secretary of the order; (7) a committee of inquiry
established by a board of directors, a member of such a committee or an
investigator of the order[.]” 20
The court therefore stated that the bar was immune to any action against it unless Finney could
prove intentional wrongdoing, which, according to the court, she had failed to prove.21
However, the Quebec Court of Appeal later overturned this decision on the basis that the bar
had failed to protect the public as required by s 23 of the Quebec Professional Code, which
states that “[t]he principle function of each corporation shall be to ensure the protection of the
public[.]”22 Therefore the bar did not enjoy s 193 immunity.23 The measly $25,000 awarded to
Finney, though, was arguably too small an award to be considered restitution for what Finney
had gone through due to the negligence of the bar and it was also too small a punitive measure
against a 20,000-member bar to deter future inaction.
Through this ruling, the court has effectively told the public that the law society, which
represents lawyers, should be held to the same standard as other professional organizations.
However, given that lawyers are expected to be held to a higher ethical standard than other
professionals, the law society that represents them should likewise be held to a higher ethical
standard than other professional organizations.
While Finney was awarded $25,000, however because of the uphill battle required to bring
about this reward, the court effectively ruled that the law society is held to the same standard
the court in Cooper v Hobart24 required from other professional organizations, as the court
states that “even though the Registrar might reasonably have foreseen that losses to investors
in Eron would result if he was careless in carrying out his duties under the Act, there was
insufficient proximity between the Registrar and the investors to ground a prima facie duty of
care.”25 While the court in Cooper stated that it cannot place a duty of care on the registrar as
“[s]uch a duty would no doubt come at the expense of other important interests, of efficiency
and finally at the expense of public confidence in the system as a whole.”26 In Finney’s case, a
duty of care would only enforce a higher duty of care already required from lawyers.
20
Ibid, s 193.
Supra note 17.
22
Supra note 19 at s 23.
23
McCullock-Finney c Barreau du Québec, 2002 CanLII 9255, [2002] iijcan 9255, an English language paraphrase of
this case’s French language ruling can be found in Lawyers Gone Bad p 214-215.
24
Cooper v Hobart, 2001 SCC 79, [2001] S.C.J. No. 76, [Cooper].
25
Ibid at para 50.
26
Ibid.
21
6
7
The courts practice of assisting the legal profession in washing itself clean of any responsibility
went a step further in the case of Finney c. Barreau du Québec,27 where Justice Carole Hallée
stated that Saint-onge and Lavery, who represented the bar, behaved in an exemplary fashion.
In response to Finney’s claim that all her troubles and worries were due to persecution by
lawyers, Justice Hallée responded by throwing the blame on Finney, arguing that only she could
stop her troubles. In other words, Finney’s decision to fight the system is to blame, rather than
the negligence of the bar. By issuing these statements, the court is sending a clear message: the
bar, which has clearly neglected their duty of protecting the public, will still be exalted by the
court while the blame for the bar’s misconduct will be placed on the victim.
Though the legal profession in each jurisdiction is independently regulated, the average layman
does not differentiate between an Ontario lawyer, a Quebec lawyer, or a New York lawyer;
therefore, the statements issued by the Quebec Superior Court not only taints the reputation of
the legal profession in Quebec, it opens the door to judges and lawyers in other jurisdictions to
act unethically, thus bringing the administration of justice in all jurisdictions into disrepute. This
may help explain the results of a 2004 Leger poll, which found that only 44 percent of Canadians
trust lawyers, down from 54 percent two years earlier.28
Even though the Ontario Bar may consist of reputable lawyers, it will still suffer from the
unethical behaviour of lawyers such as Alan Dershowitz, and though such lawyers are a
minority, their notoriety, and in some cases their influence on the judiciary system, taints the
reputation of the entire legal profession.
In New York v Baruch Lebovits,29 Alan Dershowitz along with Arthur Aidala, who represented
serial pedophile Baruch Lebovits, in their quest to have their client’s conviction overturned,
resorted to unethical behaviour. This, together with the judiciary system that abetted their
behaviour, provided fodder to those who call lawyers rats.
Lebovits’ original conviction was set aside when
[h]is defense team (led by none other than Alan Dershowitz) convinced an
appeals court that the trial had been prejudiced by the prosecution’s failure to
share a police detective’s note about one of the witnesses expected to be
called by the defense. While the court said Lebovits was denied his right to a
fair trial, it also noted that there was sufficient evidence to prove he was guilty
of the same crimes.30
27
Finney c. Barreau du Québec, [2002] J.Q. no 1522.
See Leger Marketing, How Canadians perceive various professions (Montreal: 2004), online:
<http://www.6thdistrictiaff.com/2004%20Leger%20Poll%20of%20Professions%20trusted.pdf>.
29
Online: <http://www.scribd.com/doc/227487260/Rabbi-Cantor-Baruch-M-Lebovits-Guilty-Plea-to-Oral-Sex-witha-minor>.
30
Emily Shire, “The Orthodox Sex Abuse Crackdown That Wasn’t,” The Daily Beast (10 July 2014) online:
<http://www.thedailybeast.com/articles/2014/10/07/the-orthodox-sex-abuse-crackdown-that-wasn-t.html>.
28
7
8
The fact that there was sufficient evidence to prove that Lebovits was guilty did not stop
Dershowitz from lying, threatening to produce a “smoking gun” recording that never existed31
and fraudulently arranging for the incarceration of Sam Kellner, the father of one his client’s
victims,32 all in order to secure the release of his client.33 When Kellner was finally released as
the fabricated story against him fell apart, Dershowitz did not give up: he claimed that another
smoking gun recording existed34 and had a shouting match with supporters of the victim at the
courthouse.35
While the use of threats is generally prohibited in the practice of law,36 no disciplinary action
was taken against Dershowitz. The judge’s statement after Lebovits’ guilty plea,37 similar to
Justice Hallée’s statement in Finney c. Barreau du Québec, empowered corrupt lawyers to
continue down the path that has tarnished the reputation of the legal profession.
It would seem logical that the law society should be held responsible for the damage created by
a lawyer in cases where the law society failed to take action against a lawyer who acted like a
rat, which subsequently enabled that lawyer to continue to hurt members of the public.38
However, because the legal profession is self-governed, it is likely that nothing will be done even
if the law society is truly responsible for the actions of corrupt lawyers.
4. Considering that the lawyer is truly an agent of the court, is it ethical for a senior lawyer to go
full force in examination of the opposing party when it is clear that the playing field is far from
even?
This question is particularly applicable when an opposing party who, due to financial restraints,
has hired an inexperienced lawyer. In such a case, the party with the senior lawyer may claim
that it is a free country and each party can opt to hire any lawyer they wish. The influential party
or lawyer can also claim that enacting restrictions and preventing one party from hiring a better
lawyer than the opposition is a grey area where it would be hard to draw the line. This paper,
31
After Kellner’s lawyer told Dershowitz to go ahead and publish the recordings, Dershowitz sheepishly conceded
that the smoking gun never existed. Please see online: <https://www.scribd.com/doc/234028476/Letter-to-JudgeDwyer>, where Niall Macgiollabhui, Kellner’s lawyer, documents the mobster style action Dershowitz took in order
to vindicate Lebovits.
32
See Mosi Secret “Prosecution Backtracks in Sex-Abuse Fraud Case” The New York Times
(8 July 2013) online: http://www.nytimes.com/2013/07/09/nyregion/prosecution-backtracks-in-sex-abuse-fraudcase.html>, regarding how Aidala, one of Lebovits’ lawyers who had connections with the District Attorney’s office,
arranged for the incarceration of Kellner in order to vindicate Lebovits.
33
Sharon Otterman, “Judge Dismisses Charges Against Whistle-Blower in Sexual Abuse Case,” The New York Times
(7 March, 2014) online: <http://www.nytimes.com/2014/03/08/nyregion/prosecutors-expected-to-dismisscharges-against-whistle-blower-in-sex-abuse-case.html?_r=0>.
34
To date, no valid recording has been produced by Dershowitz or Lebovits.
35
Supra note 33, at para 5.
36
Supra note 5 at c 3 s 3.2-5.
37
Available online: <http://www.scribd.com/doc/227487260/Rabbi-Cantor-Baruch-M-Lebovits-Guilty-Plea-to-OralSex-with-a-minor>, at page 31, line 12.
38
Judges and benchers should be under the same obligation as lawyers to take reasonable action to protect the
public, as The Code c XV commentary 1 states, “it is, therefore, proper for a lawyer to report to a governing body
any occurrence involving a breach of this Code.”
8
9
however, seeks to analyze a case where it would be patently unfair to allow a party to hire an
aggressive senior lawyer without any restrictions on how it conducts the cross-examination of
witnesses. This can come into play in a child molestation case, where the molester hires an
aggressive lawyer to cross-examine the victim who may have had to gather all his courage to
publicly tell his story. The victim may also be a psychologically fragile child who had a hard time
standing up against his abuser in the first place. To force this child to face an aggressive lawyer,
and then to base justice on this matchup, would be grossly unfair. On the other hand, the
defense lawyer of the accused may claim that he must use every tool at his disposal to prove his
client’s innocence.
In order to properly address this question, it is first important to note that while a solicitorclient relationship prevents the lawyer from divulging confidential information including
information that would incriminate his client, this relationship should not require a lawyer to
conduct the cross examination in a way that will prejudice the victim.
If a lawyer aggressively cross-examines a witness knowing that the level of his aggressiveness is
wrong, then he arguably has no scruples and may be considered to be a coconspirator of the
crime. This would be a blatant violation of The Code which states that a “lawyer must not, … (i)
dissuade a material witness from giving evidence, or advise such a witness to be absent; (j)
knowingly permit a witness to be presented in a false or misleading way or to impersonate
another; (k) needlessly abuse, hector or harass a witness; (l) [or] needlessly inconvenience a
witness.” 39 This would seem to imply that a lawyer should not aggressively cross-examine a
witness where doing so would prevent the witness from properly conveying his testimony.
There are, however, those that claim that “[d]efence counsel’s function is not limited to
protecting the innocent from wrongful conviction, but includes also protecting those who are in
fact guilty against overreaching by the state.”40 However, this can arguably not be said in cases
of violent crime, as overreaching by the state should not be a concern where its effect is to
ensure public safety by preventing criminals from freely endangering ordinary citizens as The
Code states that “[a]dmissions made by the accused to the lawyer may impose strict limitations
on the conduct of the defence… Such admissions will also impose a limit upon the extent to
which the lawyer may attack the evidence for the prosecution.”41
For a senior lawyer to go full force in cross-examination of a child witness would place the
administration of justice in disrepute, as it will effectively prevent other vulnerable children
from coming forward and reporting abuse. Allowing for such behaviour would mean that the
legal system is effectively a partner in the crime that could result from the confidence criminals
would gain due to lack of fear of consequences. For the law society to overlook this type of
behaviour would undoubtedly add to the general public’s lack of trust of the legal profession,
which may lead to lawyers being called rats.
39
Supra note 4, at commentary 2, (i), (k) and (l).
Gavin Mackenzie, Lawyers and Ethics professional Responsibility and Dicipline, Carswell, c 7.4, at p 7-11.
41
Supra note 4, at commentary 11.
40
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Why Law Societies Often Overlook Unethical Behaviour
Law societies often cover up on unethical behaviour on the part of lawyers, not because they do
not care or because they are satisfied that this behaviour does not exist; on the contrary, it is
likely that they are mortified by its existence and are deeply concerned that should its existence
be publicized, the public would lose its confidence in the legal system. A law society may
therefore seek to hide any past occurrences from the public eye in the hope that these
misdemeanors will disappear. This is however a bankrupt theory. Covering up unethical
behaviour will send the message that the law society is not bothered by its existence; it will also
lower the risk for lawyers contemplating acting unethically in the future and it will allow past
offenders to continue their unethical behaviour. While covering up may hide embarrassing
information from the public eye for the short term, it will explode in the long term. Thus, not
only will unethical activity committed in the past be publicized, so will the steps the law society
took to cover it up, and the resulting mushroom of unethical behaviour will rear its ugly head in
full public view.
While immediate action taken to denounce violation of ethical rules may bring a small measure
of embarrassment on the legal profession, it will be matched by the public’s increase of
favourable perception toward the legal profession. This is because in every profession and in
every community there are so-called bad apples that act unethically. Given that members of the
legal profession are expected to live up to a higher standard, still it is unreasonable to expect
that all its members will actually live up to that higher standard. Because offenders do and
always will exist, law societies have procedures in place for how to deal with them. The
presence of unethical lawyers can be compared to the flu: it will always exist, but the
percentage of infected persons will be dependent on whether its existence is recognized and
proper steps are taken to treat and contain, or denied and thus allowed to spread freely.
This type of unchecked infection is precisely what happened with Alan Dershowitz. For years he
has been victimizing victims for the sake of covering up on the crimes of those who were able to
afford his hefty fees. The United States court system has turned a blind eye and has even
commended him.42 The court system bent its own rules by allowing Dershowitz to arrange a
plea deal for Jeffery Epstien, which included “a secret provision that immunized “any potential
co-conspirators” from federal prosecution. In other words, Dershowitz negotiated an agreement
that (if the allegations against him are true) shields him from prosecution for participating in a
child sex-trafficking ring.”43 While the US court system would have emerged as a hero if, in the
42
Supra note 37, where the judge stated that it is always a pleasure to deal with the Dershowitz family, this after
his client admitted to criminal activity that Dershowitz lied, threatened and arranged for incarceration of the father
of his client’s victim in order to deny.
43
A PDF copy of the section of the settlement that contains this clause is available at Nick Bryant “Flight Logs Put
Clinton, Dershowitz on Pedophile Billionaire’s Sex Jet,” Gawker (22 January, 2015) online:
<http://gawker.com/flight-logs-put-clinton-dershowitz-on-pedophile-billio-1681039971>, also online:
<https://www.scribd.com/doc/251906445/Edwards-Cassell-v-Alan-Dershowitz-Defamation-Lawsuit-1-6-2015> at
para 6 and 13.
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name of justice, it had taken on such big names as Prince Andrew and Alan Dershowitz,44 the
legal system instead chose to hide the details and vindicate many of the coconspirators
including Dershowitz the lawyer. This lack of justice for the victims was a grave mistake, as the
lack of recourse for a wronged client may contribute more to the legal profession’s bad
reputation than non-ethical action taken by a lawyer. It seems that the courts are reluctant to
accept that a wrong was committed out of fear that such an admission would lower the respect
of the legal profession in the eyes of the public. However, it is the lack of justice that has earned
us the title rats; people would respect our profession more if they saw that its standards are
strictly enforced.
I believe that a lawyer who conducts his business ethically is clearly respected. When people say
lawyers are rats, they are referring to the Dershowitzs who are ultimately uncovered for what
they are. Covering up corruption not only fails to generate real honor for the legal system, it
results in a volcano of shame when details of a case that have been covered up begin to emerge
as has recently occurred with the Dershowitz-Epstein-Prince Andrew scandal,45 where the court
system has emerged as a coconspirator for the cover up they have enabled.
Most of the horror stories related to unethical behaviour on the part of lawyers relate to
lawyers who are repeat offenders. They generally start by testing the waters to see if they will
get away with bending the rules. The evil steadily grows, along with the blind eye the law
society turns to it in the hope it will disappear. This can be compared to covering a family of rats
with hay: while it may cover up the rats in the short term, the result will be an uncontrollable
rat epidemic. This explains how the legal profession earned itself the title rats.
Conclusion
The correct response from the legal profession to allegations that lawyers are rats is not to deny
the fact that there are incidents of unethical behaviour by lawyers; rather, law societies and
court systems should embrace the allegations and expel individuals such as Eric Belhassen and
Alan Dershowitz from their ranks. This will not only allow for the legal profession to rid itself
from members that prevent the profession from wearing the crown of an ethical profession,46 it
will show that the legal profession stands for justice, even at the cost of purging some of its own
members.
44
Who along with Jeffrey Epstein, had raped underage girls, United States District Court Southern District Of
Florida, Case No. 08-80736-Civ-Marra/Johnson online:
http://online.wsj.com/public/resources/documents/2015_0102_epsteindershowitz.pdf.
45
After allowing Dershowitz, who was already “known early on for successfully defending infamous criminals ...
[and] became notorious later for defending pornography, prostitution, obscenity[,]” to continue to neglect his duty
to the public and the court; when the truth finally began to emerge, Dershowitz under pressure mistakenly
revealed his true intentions in this video <https://www.youtube.com/watch?v=F9xvOaLte0E> (source of quote Brooklyn Daily Eagle (25 September 2003) online: <http://www.brooklyn.cuny.edu/bc/spotlite/news/092903.htm>.
46
See The Rules, c 2 s 2.1-1, commentary [1], [2] and [3].
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The reason why the legal profession has not been able to live up to the golden standard may not
be because it is self-governed; on the contrary, it is likely that political pressure47 may be what is
preventing the legal profession from living up to its mandate.48 Regardless of what has
prevented the legal profession from doing so in the past, it is time for the legal profession to rise
as a knight in shining armor, and protect its honor by ruthlessly fighting for the truth.
47
For example, pressure from Buckingham palace that a US court should drop charges against Dershowitz in order
to protect prince Andrew, also see online: <https://www.scribd.com/doc/251520789/Jane-Doe-1-and-Jane-Doe-2v-U-S> where Epstein used government connections to secure an easier sentence.
48
Supra note 46.
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