September 21, 2020 | By Julius Melnitzer
This is the second of a three-part LegalWriter.net series on lawyers who represent lawyers
When lawyers get into trouble, the reputation of an entire firm may be at stake.
But the concerns of the individual lawyer and the firm can diverge. They may have different views of the severity of the conduct and the consequences. Their assessments of risk, it follows, do not necessarily coincide.
If the gulf’s too great, separate counsel may be required. But it doesn’t come to that, at least not most of the time.
Usually, then, management has the final say in choosing counsel. So what are they looking for?
“Ultimately, management wants to know that their own litigators respect you,” says Peter Griffin of Lenczner Slaght Royce Smith Griffin LLP in Toronto, a litigation boutique. “And that a bad result won’t be a second-guessed result.”
A good reputation with judges is also crucial.
“Clients are looking for respect or acknowledgement that courts will rely on what you have to say,” Griffin says. “That the bench will look to you and count on your ability and reliability, especially in a complex case.”
The third element is judgment.
“Law firms look for that quality that’s born of lots of mistakes and bruises,” Griffin says. “That’s what gives you good strategic and tactical judgment.”
Griffin, on paper alone, fits the bill. He’s a past president of The Advocates’ Society, A Fellow of the American College of Trial Lawyers (ACTL) and past chair of the ACTL’s Ontario committee. Canadian Lawyer has named him as one of Canada’s 25 most influential lawyers.
His experience is no less impressive. There are some 70 “select” cases on his firm profile, spanning more than 40 years at the Bar and a wide-ranging counsel practice.
Griffin says he avoids routine cases in his professional representation practice.
“I haven’t done a discipline case in a long time,” he says. “I focus on retainers with complicated issues, such as conflicts work and instances where lawyers are pulled into class proceedings.”
After 47 years, Terry O’Sullivan has recently retired from his counsel practice at Lax O’Sullivan Lisus Gottlieb LLP in Toronto, the litigation boutique he co-founded. But he continues his mediation and arbitration work – – – so don’t be surprised if publicity-averse law firms with partnership or other internal problems remain on his agenda.
O’Sullivan was counsel for the Canadian Bar Association in 2007 when it intervened in Strother v. 3464920 Canada Inc., one of the cases in the Supreme Court of Canada’s (SCC) landmark conflicts trilogy.
By that time, O’Sullivan, already a past present of The Advocate’s Society, had long earned the bar and the judiciary’s respect. He’s also an ACTL fellow, received the Law Society of Ontario’s medal for his outstanding contribution to the legal profession, and earned the Gold Key Award for Achievement from the Osgoode Hall Law School Alumni Association. The man has also authored some 70 papers on diverse litigation topics.
For all these accolades, it may be that O’Sullivan is best known as the host of the Canadian General Counsel Awards, where his legendary sense of humour has regaled audiences for years.
It wasn’t long before major firms facing conflicts issues reached out to him.
“The work involved giving advice to the partner managing conflicts, mediating internal disputes about conflicts, and public representation at disqualification hearings,” O’Sullivan says.
As Canadian firms grew larger and expanded nationally, disqualification hearings became more common.
“From the beginning, the large firms turned to the litigation boutiques, and that hasn’t changed to this day,” O’Sullivan says. “Ron Slaght (Griffin’s partner at Lenczner Slaght), Chris Paliare and Linda Rothstein (both at Paliare Roland Rosenberg Rothstein LLP) have also done a fair bit of this work.”
Eventually, the scope of the practice broadened.
“I morphed from conflicts into troubleshooting,” O’Sullivan says. “I would give firms advice about their partnership agreements, including how to manage de-partnering without generating publicity.”
Ultimately, professional representation formed between 15 -20 percent of O’Sullivan’s practice. His retainers have included defending McCarthy Tétrault LLP against Toronto Life cover girl Diane LaCalamita’s allegations of gender discrimination; counselling seven former Heenan Blaikie LLP partners when the national firm collapsed in 2014; and, most recently, representing Lerner’s LLP in Bent v. Platnick, the landmark anti-SLAPP ruling released by the SCC earlier this month.
Both Griffin and O’Sullivan say representing their colleagues is satisfying, but challenging.
“The courts make us work hard when we’re defending lawyers,” Griffin explains.
Julius Melnitzer is a Toronto-based legal journalist, writing coach and media trainer for lawyers at LegalWriter. net.