The perils of practicing law

It was always impossible for me to overlook the imperative of accuracy and assiduity in the practice of law.  It made for an acutely refined focus for fifty years of my life.  It is naturally axiomatic that one should practice law with precision. Foremost is the necessity to guide one’s client through the shallows without untoward event or exposure. This however was only the backdrop to my personal and existential obsession with particularity.

I learned my lessons early in my career. Like most lessons they arose from mistakes. The first was the mistake I made while articling at a prestigious downtown Ottawa law firm Macdonald, Afflect on Sparks Street when fresh out of law school. I had written the City of Ottawa requesting the bureaucrats to advise me of the preferred documentation for some purpose (perhaps related to a re-zoning application or similar proposal). My Principal Robert McLaughlin QC was furious.  He considered it a gross reversal of duty for me to ask them what to do.  In the result I revisited the adage I had learned (but obviously ignored) in law school from a senior student named Terry Cooper (who I understand later became a judge). His advice: tell them what you want then show them how to get there. It is a thesis which opens any good argument.

In a reversal of this paradigm, about a year later when I assumed my basement office as junior counsel in the law firm of Messrs. Galligan & Sheffield, I was handed the so-called “dog files” of the firm; that is, the predominantly gratuitous work being performed for local charities and the like.  In this case the retainer was a full accounting to the Government of Ontario of the perpetual care fund of the Auld Kirk Cemetery of the United Church of Canada in Almonte. The primary source of my information was Miss Elizabeth Schoular, a former school teacher and current treasurer of the perpetual care fund. After familiarizing myself with the legislative regulations I attended upon Miss Schoular at her residence on Farm Street where we sat in the screened veranda poring over what seemed like centuries of financial contributions by endless people to the cemetery perpetual care fund.

Not long afterward John H. Kerry, Chairman of the Board of Trustees, got wind of this epic investigation.  Recognizing the potentially insurmountable purpose, he wittingly disregarded both the object and legislative backdrop of the matter and called the Ontario Government directly, demanding the civil servants instead attend upon the Board and draw their own conclusions as to accountability.  It was too early in my career in Almonte for me to have known Geo. W. Gomme, a former Minister of the Ontario Government; and who by coincidence lived on Farm Street almost immediately behind Kerry’s furniture store also not far from Schoular.  The government officials came from Toronto and cleared the smoke within a day without the necessity of our law firm having to retain the services and expense of an accounting firm to document the report.

Another incident arose not long after I left the prestigious law firm on Sparks Street in Ottawa, when I was the newest addition to the Lanark County Bar Association. I encountered a difficult real estate title. I raised my objections with Paul Courtice (the lawyer representing the sellers). He responded to my queries unsatisfactorily in my opinion and I therefore sought the ruling of a local judge to settle the matter.  Courtice then replied, “That’s not the way we do things in Lanark County”. I told him I accepted his assertion but I was otherwise unmoved.  We went to court and got a judicial ruling sufficient to bolster both sides of the controversy.  Years later when my clients were selling the property, an Ottawa lawyer for the buyers raised the identical title objections I had previously denoted. I sent him a transcript of the court order on file and that was the end of it.

A further generic learning arose when drawing a last will and testament for a chap who months earlier had separated from his spouse. It didn’t involve a mistake but it was precipitously close to doing so. The matrimonial separation was the proverbial unfriendly dispute which hadn’t been resolved by agreement or otherwise when my client (whom I had represented separately since before his difficult marriage) came to see me about changing his will. I first related that I did not handle family law matters; then that anything in his new will continued to be subject to the provisions of the Family Law Act relating to the division of assets upon separation; and lastly that I required a letter from his physician confirming my client was competent to sign a will (he was alcoholic). All of this transpired in the next several months.  With one exception.  We didn’t sign the new will. It wasn’t until months afterwards that I received a telephone call from my client from his hospital bed in Almonte.  Young as he was, he was dying of sclerosis of the liver. When my legal assistant Mrs. Hazel Anderson and I went to the hospital to meet with him as requested to sign his will, his skin was yellow. Otherwise he was normal.  The adjudication of mental capacity Is not confined to physicians. In fact lawyers more than most people have occasion to meaningful assess capacity. I began by asking my client to confirm the day of the week and other similar questions; as well naturally as his reaffirmation of the terms of the new will.  He answered them all correctly and unhesitatingly. We ended signing the will.  He died days later. Almost as quickly a law suit was launched by the estranged wife attacking the legitimacy of the will for incompetency of the testator. In the court hearing that followed the will was sustained in spite of gruelling examination of me and my assistant and the isolation of witnesses so neither of us overheard the testimony of the other. I could have avoided the entire difficulty by having refused my client the entitlement of signing his proposed new will. The circumstances were open to ambivalence; but not in my opinion to uncertainty.

Another different testamentary issue arose years later when I was suddenly called to a hospital bed to take instructions for a will of a client who was dying. So concerned was I that my client was near death, I wrote the will by hand while at the hospital bed then had my client sign it. The problem was that the only witnesses available were myself and two people who were named in the will (which normally excluded them from entitlement to act as a witness for obvious reasons).  The hospital meanwhile had adopted a procedure prohibiting staff to act as witnesses in order to avoid controversy surrounding issues of competency. Thinking I would return to my office, have the document prepared, then return with my assistant to sign it with her as witness, I simply asked one of the two beneficiaries to sign as witness with me. The client died within hours after I left the hospital. When I applied for probate of the will it was first necessary to legitimize the witnesses. His Honour Judge James C. Newton heard the matter in Surrogate Court. He listened to my testimony regarding the circumstances surrounding the execution of the will and decided in my favour. It is possible it helped propel the matter that Judge Newton was one of the first people with whom I had dined when I arrived as a new lawyer in Almonte years before.

I overlooked mentioning one of my earliest mistakes. I closed a real estate transaction on a rural property contiguous to the Town of Almonte. I made the presumption that I knew – or could correctly predict – the zoning of the property. As I entered the Land Registry office to close the transaction with the other law firm’s agent I remember thinking I must verify the zoning as soon as I returned to my office.  I was mistaken on both accounts.  The zoning was highly limited.  I immediately notified my client and the Law Society of Upper Canada (my Errors and Omissions insurers) of my oversight and the possibility of my exposure to a claim for compensation. It turns out the real estate (vacant land) was riparian. The interests of my client were entirely recreationally (boat launching, etc.) and involved no ambition for development.  But I had poignantly learned my lesson; namely, listen to my inner voice. And in a timely fashion.