Don’t be a tool

Are Murdoch's lawyers at fault in the News of the World scandal?
Are Murdoch's lawyers at fault in the News of the World scandal?

When I took the Ontario Bar Admissions Course many years ago, I remember joking with fellow classmates about the Rule of Professional Conduct that states a lawyer “should be on guard against becoming the tool or dupe of an unscrupulous client.” We thought the idea that a lawyer could be a “tool” or “dupe” of a client was funny.

But it’s clear from recent revelations in the U.K. surrounding the News of the World phone hacking scandal that such a warning is anything but funny for a lawyer.

Both in-house and outside counsel for Rupert Murdoch’s News Corp., the company that owns NOTW, have been put under the microscope in the parliamentary committee hearings into the allegations of phone hacking and bribery by NOTW employees. And as the investigation and finger-pointing spreads beyond the newsroom, the Murdochs have even turned on their own lawyers.

Rupert Murdoch alleged that one of News Corp.’s outside firms made a “major mistake” in its part of an internal investigation into phone hacking. He also testified that News Corp.’s board relied on legal opinions that phone hacking was not widespread at NOTW. James Murdoch’s testimony that he was not aware of any evidence in 2008 that phone hacking went beyond a single “rogue reporter” has been challenged by NOTW’s former top in-house lawyer, Tom Crone, who said that he and the editor-in- chief at the time showed Murdoch evidence of wider phone hacking.

Now, Britain’s Solicitors Regulation Authority is set to investigate the lawyers’ roles in the scandal.

Although how much the News Corp. lawyers knew and when they knew it still remains to be seen, there are serious concerns that some lawyers may have become “tools” or “dupes” of their clients.

Canada isn’t immune to such situations. Disciplinary proceedings still before LSUC against two Torys LLP lawyers allege that they were in a conflict of interest regarding their involvement in structuring the non-compete payments that Conrad Black and other Hollinger International executives received as part of Hollinger’s sale of newspapers to Canwest Global Communications Corp. from 2000 to 2002.

Both of these situations involve scenarios where lawyers were in possible conflicts of interest (legal or ethical) that may have led to assisting their clients in dishonesty, fraud or even criminal activity.

The situation in the U.K. is a lawyer’s worst nightmare. But the nightmare could have been avoided if integrity was more of a guiding principle. The first rule in the Canadian Bar Association’s Code of Conduct states that a “lawyer must discharge with integrity all duties owed to clients, the court or tribunal or other members of the profession and the public.” This principle of integrity is a key element of each rule of the Code.

It is critical that we recognize when our duties as lawyers, particularly the duty of integrity, may conflict with the interests of a client. It isn’t always easy. A longstanding client who pays handsomely, but needs assistance in protecting his interests by bending some rules or sugar-coating certain information for public authorities, can be difficult to stand up to on the basis of something as amorphous as “integrity.” Such conflicts can be even more acute with in-house counsel when they may have to weigh the security of their jobs against their personal integrity. But without integrity, a lawyer is useless to his client.

In public surveys of professions that people trust most, lawyers routinely fall near the bottom. If we put personal integrity first, even at the expense of our client’s interests, who knows where we’d place? One thing is for certain, though: we’d beat out journalists.

Iain MacKinnon is a civil litigator at Chitiz Pathak LLP in Toronto and regularly acts for media companies and journalists.

Illustration by Raymond Beisinger