Friday, June 05, 2009

An exclusive interview with The Public Eye!

Truth To Power
Good Day Readers:
We were able to negotiate the exclusive rights for an interview with The Public Eye on the condition we not reveal their identity other than to say they're a practicing Canadian lawyer. Here are the 10 questions we submitted.
Clare L. Pieuk
(1) Why did you choose to study law?

Quite honestly, I was like most law students in not really knowing what else I wanted to do, or could do. I had the intangible goal of wanting to work in a career where I could get satisfaction from helping real people and earn a decent income, but - like most arts students at the end of their degree programs - had no idea how to go about it. I had no particular aptitude for maths or sciences, couldn't stand the sight of injury or blood, didn't want to build or fix things, and didn't relish the idea of a cookie-cutter corporate career, so these no-nos essentially wiped me out of consideration for almost every job available. At the same time, I always had an aptitude for communication and public speaking, and always wanted to work in a profession where I dealt with real people - and with those expectations in mind, I just happened to stumble into law. It could easily have been social work or journalism, but I just happened to believe that a career in law was the best way to achieve concrete results for real people.

The real question, of course, is whether law school delivers on its expectations, and, concomitantly, whether it actually prepares its students for the real world of practice. The answers to both questions, of course, are no. Most of what I've learned has come from the courtroom where I practise law, not the classroom where I first learnt it. Law school does very, very little to prepare its students for What's Out There, and I would go so far to say that it's only been through sheer luck and happy accident that my legal career has generally fulfilled my goals and expectations.

(2) Why have you chosen to remain anonymous?

As the blogmaster of Truth to Power, I post, frankly, a lot of dirt about lawyers and judges across Canada and the world, some of whom were and are my colleagues in legal practice. I post newspaper articles, disciplinary and court decisions, and all manner of things that are, well, not flattering to the reputations of these lawyers. I do this without apology because many of the posts which I put up on my blog - particularly the disciplinary decisions - are not otherwise easily available to be accessed by the public.

My justification for posting all of the above is that I believe it's important that Joe Q. Public know the person he is hiring to be their lawyer. If your lawyer were suspended for sexually harassing a client or another lawyer, wouldn't you want to know about it? Unfortunately, disciplinary decisions, if they're posted on the internet at all, are usually posted in such a way as to avoid the reach of internet search engines. This is wrong. It is precisely these decisions that should be the most accessible to the public. To a large extent, that is exactly what I'm trying to achieve with Truth to Power. It is no accident that my domain name is

At the same time, I am still a practicing lawyer (managing Truth to Power may eventually make me a millionaire, but that day is far-off) and I have to deal on a daily basis with many of the lawyers, and even a number of the judges, who appear on my blog. The need to shield my identity and protect my own ability to advocate and negotiate on behalf of my clients is obvious. If my name were to be associated with Truth to Power, I would almost certainly be blackballed by the lawyers about whom I've posted or will post: I would suffer, as would my clients. My employer does know that I maintain this blog, and they have no issues with it. In fact, a number of my co-workers regularly check the blog, and they often offer suggestions for posts.

My promise to the reader is I will maintain and post to the blog as long as I draw breath. The unfortunate price associated with that commitment is that, if I have my way, no one outside of a select, trusted few will ever know who I am.

(3) Is there a story associated with the black and white reporter/photographer known as The Public Eye?

Of course, you're referring to the photo which appears in the "About Me" column at the upper right hand corner of my blog. The photo is a scene from the much-neglected French movie "Alphaville," which I would highly recommend to anyone interested in avant-garde cinema. Even today, it comes off as a fascinating movie, well ahead of its time

In terms of my blog, the significance of the photo-snapping figure in the photo is essentially explained in the "About Me" description. I am a muckraker. I am the paparazzo who exists to snap the unflattering photo, to get at the truth no matter how unpleasant or gross. I am here to knock off their pedestals those who, through their actions, show they are undeserving of their positions of trust, authority and adulation. Sooner or later, with my metaphorical camera, I catch them all with their pants down.

4. What annoys you most about opposing lawyers?

Most of the lawyers with whom I deal in my professional life are Crown Attorneys of various stripes. In that regard, unquestionably the most annoying quality about Crowns is the sense of arrogance and cocksure certainty they tend to radiate. There are many good Crowns, but also many with whom I absolutely despise dealing, essentially for this reason.

5. If you could make one change to the Canadian legal system what would it be?

If I could wave my wand, the one change I would make immediately would be to dramatically expand the presence and clout of Legal Aid in our justice system. Some of the best criminal defence lawyers with whom I've worked in two different provinces have been Legal Aid lawyers. Contrary to some public perceptions, they are instinctively scrappy, combative, and zealously protective of their clients' interests. All of the existing problems with Legal Aid relate to underfunding and understaffing.

This is obviously much easier said than done, but if I had the dictatorial power to make one change to our legal system, it would be to increase funding levels to double if not triple the number of lawyers employed by Legal Aid organizations across the country, and to expand Legal Aid coverage to more legal matters. This is utopian - if anything, the trends across the country are in precisely the opposite direction - but a lawyer can dream, can't they?

6. Should Law Societies be reformed? If so how?

In my experiences in dealing with the Law Society of Manitoba in particular, I have been extremely disappointed in the lack of will (for lack of a better word) that exists to genuinely protect the interests of the public. That itself is also a large part of the reason why I set up Truth to Power.

In the past, I recall assisting a former client (we'll call "Mr. C.") with a Law Society complaint against his previous lawyer practicing out of Winnipeg (who we'll call "Mr. L."). It was a complicated story, but essentially it was this: Mr. C. was the webmaster of a popular Winnipeg website, and had engaged pro bono the services of Mr. L. to essentially do "due-diligence" work for him - providing editorial advice and generally vetting posts for defamatory content. Some time into their relationship, when Mr. L. had become involved in drafting political opinion pieces for publication on the website, Mr. L. had drafted a petition against a Manitoba corporation (call it "XYZ Inc.") containing numerous allegedly defamatory comments, which Mr. L. subsequently recommended Mr. C. publish on the site. Mr. C. published it, and was then, along with the domain name owner of the site, subsequently actioned for defamation by the party referred to in the petition. Mr. L., despite having drafted the allegedly defamatory petition, was strangely never actioned. It was later discovered by Mr. C. that Mr. L. had, subsequent to Mr. L. withdrawing from representation of Mr. C., received a retainer to perform legal services for XYZ Inc., and continued to do legal work for XYZ even as XYZ was vigorously prosecuting a lawsuit against Mr. C.! On top of all this, at the same time that Mr. L. had accepted his retainer from XYZ, he also dared to provide legal advice to Mr. C. as to possible defences available, and went so far as to suggest specific wording for his Statement of Defence.

This was such outrageous conduct by Mr. L. that I honestly felt I had no choice but to minimally assist Mr. C. with a Law Society complaint. You think that the Law Society would care enough to investigate, right? Wrong.

Upon submitting the complaint, I was frankly shocked by the degree of apathy manifested by the "Complaints Investigation, Competence and Discipline" crowd at the Law Society of Manitoba. The complaint minimally raised serious allegations of conflict of interest and professional misconduct, which should at the very, very least have been investigated. Furthermore, the complaint was backed by solid evidence in the form of perfectly preserved emails and several other relevant documents. The response of the Law Society? "We decline to investigate." Thus began my disillusionment and disgust with the Law Society of Manitoba. To not even bother to investigate my former client's allegations was a travesty of justice.

If the above incident provides any indication as to how the Law Society of Manitoba handles routine complaints, I am sure there are many reforms that need to be implemented to bring Law Societies more in line with their declared mandates. At the same time, though, I don't think more funding, more resources or manpower is necessarily the answer; I think Law Society counsel and investigators need extensive re-education as to their proper roles and functions. They need to get some guts and be prepared to dig. Otherwise, Law Societies will be paper tigers, unfeared and thus unable to carry out their proper function of policing the legal profession. If "Mr. C." above couldn't persuade the Law Society of Manitoba to give him his "day in court," who can?

7. Would you like to become a judge?

No. I would miss the partisanship of advocating for a particular client. I could never be impartial, or pretend to be. The other factor necessarily of importance is that being a judge is really very tiresome and tedious work. Far more than the clients, judges always look like they'd rather be somewhere else.

8. Do you have a favorite lawyer? Is so who and why?

No one particular person, but I admire all lawyers who take up the cause of The Little Guy. I admire all scrappers, all those who care about justice and are willing to give up the lure of the easy day to fight for a client's rights. The temptation always exists to roll over, to manoeuvre things to accept a deal offered by the Crown or the other side, for the sake of a short courtroom appearance. Any lawyer who resists this temptation but instead chooses to argue the point - who chooses the long way around, to try to achieve a better outcome for the client - is my favourite lawyer.

9. Based on your experience as a practicing attorney, how should the curricula of Canadian law schools be revised?

Based on my experience, law schools ultimately fail to prepare lawyers for the real world because there is far too strong an emphasis on theory and abstract legal principles, to the neglect of real-world skills. I recognize that law school is not "lawyers' school;" but law-school instructors have to recognize that the vast majority of the students before them want to be practising lawyers, and not academics or research hounds.

Some law schools have attempted to integrate clinical electives - ie. work-experience programs involving Legal Aid, etc. - into their curricula, and this is decidedly to be encouraged. More needs to be done. It is a scandal that there are law schools where students will never, ever have the opportunity to deal with a client, to draft a contract, or to learn about bail hearings or Askov applications. To that end, I would recommend more practical content in courses, and more options in terms of courses themselves - foremost, more clinical and work-experience options.

10. In your opinion should real time blogging and television cameras be allowed in Canadian courtrooms?

Personally, I have mixed feelings about this. Courtrooms are public fora, and anything that encourages public participation in the court process is decidedly to be encouraged. At the same time, we cannot kid ourselves about how having the media in the courtroom can negatively affect the integrity and justice of the process. It is well known, for example, how people will alter their behaviour when they know they are being watched. Lawyers, who tend to be naturally narcissistic in any event, are particularly prone to alter their behaviour if they are being televised or otherwise covered by the media.

My view is we should cut the baby in half, which is a backdoor way to endorse the status quo: Judges, as in other matters affecting their courtroom, and subject always to the strictures set out in the Criminal Code and to appellate review, should have total discretion in terms of having the final say.

If this is seen to be a cop-out, a way for me to avoid expressing my own personal opinion as to how media coverage - in particular, television coverage and live-blogging - can affect court proceedings, then let me alternatively answer the question like this: If I were a judge, my general criteria for allowing or excluding media would be
(i) whether the form of media coverage is physically intrusive in terms of a courtroom presence;
(ii) whether the form of media otherwise can be expected to affect the conduct of proceedings; and
(iii) in the case of television cameras specifically, whether there is an overarching public interest in having the public view images of proceedings, and whether the same end could be served by non-visual media coverage.
Using these criteria, acting as the judge in my hypothetical scenario, I would almost always choose to exclude television cameras on the grounds that their physical presence would be overpowering and would unduly influence the conduct of courtroom proceedings, and that any legitimate public interest in the "right to know" could be achieved through other media coverage.
On the same criteria, I almost never would have an issue with live-blogging; but, that said, this would always be dependent on specific conduct by bloggers. If the clicking of keys and the presence of laptops proved obviously disruptive to the proceedings, I would exclude live-bloggers without a moment's hesitation. By the same token, blogging using a cellphone or Blackberry would seem to me to be almost wholly non-intrusive and generally inoffensive, and I could see myself allowing this form of live-blogging under almost all circumstances.
Thank You!


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