When I began practising law, it was truly a profession. With the rarest of exceptions, lawyers aspired to act and be viewed as professionals. I articled at what was then McCarthy & McCarthy, spending much of my year working for John J. Robinette, viewed by many as the best lawyer of the 20th century. Robinette was imperious, but noblesse oblige ran through his veins. He took pain to know the names of the clerks and even the cleaning staff in the courthouse.
In that firm then were many legal authors, two of the other top litigators in Canada in George Finlayson, later of the Court of Appeal and Doug Laidlaw, with Alan Lenczner as his understudy, John Clarry, Counsel to the Canadian Bankers Association, and Senator Hayden, Chair of the Senate banking and finance subcommittee. That set my DNA for what one should aspire to as become as a lawyer, setting aspirations toward excellence and a career which included legal writing, public commentary and charity, both in the broader and Jewish communities.
That is not what is common today. If “huckster” might be too harsh, much of the employment law bar today are products of social media and conventional advertising, and approach law as a business rather than a profession. Clients are seen by too many as commodities, sources of income, rather than a calling to service and to serve.
What I see today for the most part, among too many lawyers representing employees, are exaggerated allegations, claims without truth or substance and puffery. The judiciary shares blame for this as it has not adequately punished the perpetrators. The consequence of this is that reasoned negotiations become antagonistic wars. There is nothing wrong with aggression and hard fights but they should be substantive, not fabricated. There is nothing wrong with taking even the toughest of positions on behalf of your clients without fear, when they are substantively based rather than an artifice to have damages rendered non-taxable for a severance settlement.
Too many young lawyers today receive little or no mentorship. We have two lawyers in my firm with more than 40 years’ experience and another with more than 30. At most of the employment law shops, at least in Toronto, even the senior partners are relatively junior themselves, lacking the requisite skill to provide appropriate mentoring. There is also an overemphasis on pumping out claims and making exaggerated or false allegations, hoping for a quick shakedown of the company in question and a quick contingency return for the law firm.
In a handful of recent cases and others over the last year or so, I have seen demand letters, statements of claim and mediation briefs that often bore scant relationship to the actual cases in question, much of it almost a cut and paste from similar documents from those law firms.
Sometimes the often blatant inaccuracies about what had occurred lead to admissions at examination for discovery (a pretrial deposition under oath) by the employee that the facts in their claims and letters of demand were inaccurate and, worse, that they had never advised their lawyer of them.
One common falsehood is claiming that the employee is fired because of their age, whether it be because they were too young or too old. Such an allegation obviously bespeaks human rights violations and opens the door to human rights damages. Not surprisingly, such claims are less frequently made when the employee is racialized and then that is listed as the reason for discharge. Of course, when the employee is examined, they are often quick to admit that they did not believe they were fired for that reason at all and invariably had never raised it as an issue until they visited their lawyer.
What the lawyers/their clients forget is that employers are people too and can react very strongly to being accused of racism/sexism etc. Many of these employers had themselves experienced racism in the past and overcome it in building their businesses. They do not appreciate that, to many of these lawyers, such allegations are merely a “game” to get damages treated non-taxably, concealing the true nature of the severance payments from the CRA. They react strongly to the accusations and it makes the cases far more difficult to settle. Even worse, it permanently poisons their relationship with that employee and destroys the possibility of any positive reference ever being provided.
Examples of other kinds of misstatements include that the employee was actively recruited when they had not been; that they regularly received bonuses in defined amounts, when that had not been the case; or that they did not receive their ESA entitlements or Record of Employment upon termination, when they had.
There is no consequence to the conduct of these lawyers. Mediators don’t care. Their job is not to be moral arbiters but to resolve the case. And for judges, these allegations are meant to extort and, if ineffective in accomplishing that, usually get dropped before trial so the lawyer/client is not embarrassed.
The professional problem, in my view, is that allegations are made without substance in the apparent hope of a quick shakedown of the employer in question.
BY HOWARD LEVITT
Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-clients-increasingly-being-seen-as-commodities-is-a-problem-for-the-legal-profession