by Donald Best

There is a class of self-represented litigants that the legal profession does not talk about or even acknowledge, at least publicly. These are the people who are ready and willing to pay a lawyer, but are forced to represent themselves because the vast majority of lawyers refuse to litigate cases involving a claim of professional misconduct against another member of the Bar.

In the past year I have spoken with dozens of such individuals. I am not a lawyer, but they appear to have good civil claims against lawyers for unethical or even unlawful conduct – apparently supported by strong evidence and backed by case law. Yet these Canadians are unable to find legal representation at any price.

Some of these victims choose to self-represent, while others abandon any thoughts of seeking justice. Increasingly, self-represented litigants are assisted behind the scenes with legal research and document preparation by lawyers who are sympathetic, but fear backlash and opprobrium from the profession if they take the case themselves.

The perils of challenging a lawyer in court

I approached over one hundred Ontario lawyers to petition the court to overturn my conviction for contempt. This conviction resulted from a private prosecution that was led by two senior lawyers from large Bay Street firms. All refused to take my case, even as they acknowledged its validity and the strength of the evidence against the Bay Street lawyers.

In brief: I had been convicted of contempt of court in a civil matter while out of the country, and sentenced to three months in prison. My conviction in absentia was based upon the written and oral testimony of two Toronto lawyers who swore that, during a conference call with them, I had confirmed that I had received a copy of a certain court order. Their sworn evidence also assured the court that they had served the order upon me in Ontario via courier. (The courier company however, stated that they had never received the court order from the lawyers, and no shipping documents, signature receipt, or tracking number have ever been produced by the lawyers). An affidavit by their “private investigator” provided an expert opinion that I was deliberately avoiding service – because I use a commercial mailbox as my address.

In fact, I had not received the court order, and stated this many times clearly during the conference call (as a forensically certified recording proved). Instead I asked, many times, for the lawyers to please send me a copy.

Despite this, I was held in contempt based on the lawyers’ assertion that I had received the court order and confirmed that receipt to them during the call.

Looking for representation

I returned to Canada and hoped to put the recording of the conference call and other evidence before the court. I knew that I would face prison time for contempt if I were unsuccessful.

So I searched for a lawyer to represent me.

Many of the young lawyers I approached were sympathetic and forthright, even admitting that they were ashamed to have to turn me down. They explained that they dared not take my case because they feared the professional and social sanctions that would certainly result. Some cited conflicts of interest involving past colleagues and law firms, while others explained that they regularly receive work from the large Bay Street firms, and could not afford to jeopardize that source of business.

A surprising number of lawyers told me that it was their firm’s policy not to litigate against lawyers, or to bring motions or evidence that would harm the careers of other lawyers. (“Yes, Mr. Best, the lawyers lied to the judge to convict you, but our firm simply does not handle this type of case.”)

When I explained all of the above to Ontario’s Law Society of Upper Canada and asked for assistance in finding a lawyer willing to represent me, I received a form letter referring me to the list of lawyers on the Law Society’s website (the Lawyers Referral Service).

Trying to defend myself

Since no lawyer would represent me at any price, I was forced to represent myself.

The judge (the same judge who presided over the original hearing) would not listen to the conference call recording or consider any other fresh evidence that proved that I had never received the court order, and that for the lawyers to claim otherwise was perjury. The judge also refused me permission to cross-examine the lawyers and the “private investigator” all of whom provided testimony the court relied upon to convict and send me to prison.

The judge sent me to prison.

It was while I was in prison that I finally found and retained a lawyer willing to appeal my conviction.

My appeal: finally represented by a lawyer

I shall never forget this moment.

When my lawyer introduced himself at the appeal hearing, opposing counsel refused to shake his hand, saying that he would not shake the hand of a lawyer who filed a motion stating that a colleague had deceived the court. And so the social and professional sanctions began: against the one lawyer I found with the courage and integrity to act on his sense of duty.

I was eventually forced to abandon my appeal because of punitive costs (that I could not pay) awarded against me earlier, and returned to prison to serve the rest of my sentence (which, as a former police officer, I served in solitary confinement). No court ever heard my certified voice recordings of the phone call with the lawyers. I was never allowed to cross-examine the lawyers and other witnesses upon whose testimony I was convicted and sent to prison.

My lawyer believes that everyone deserves Access to Justice and fair legal representation – but for over one hundred other Ontario lawyers, Access to Justice apparently ends if a litigant has evidence of misconduct by a fellow member of the Bar.

Donald Best is an Access to Justice & Anti-corruption advocate. A former Toronto Police Sergeant (Detective), he worked on deep-cover investigations against organized crime, corrupt police, and public officials. His website is DonaldBest.ca