You have been a practicing litigation counsel for 44 years. Have you learned anything over that time?
No, I pretty much knew it all when I started out. Or I thought I did. Some of the things I have learned are the importance of (1) mentoring, (2) patience, (3) humility, (4) candor, (5) coping effectively with stress, (6) adapting to change, and (7) written advocacy.
Could you elaborate?
Sure.
Mentoring: When I started out, I was lucky to work with lawyers who were not only skillful but were also highly ethical. I learned a great deal from them, largely because they took the trouble to teach me but also by osmosis, by their good example. I feel badly for young lawyers who have not had the opportunities that I had to learn from good mentors.
Patience: When I started practicing, I was young, and it showed. I talked like a book to impress clients with how smart I was. They were not impressed. It takes time and patience to develop trust and confidence. You have to remember the three As: Ability, Affability, and Accessibility. Ability will often be assumed if you are with a good firm. It’s not hard to be affable, and it’s not hard to be accessible. You just have to work hard, do your job, and if you are patient eventually clients will want you to be their lawyer.
Humility: There is no shortage of oversized egos in our profession. We have to empathise with others and always be open to appreciating the opposite side’s position. Judge Learned Hand’s advice should be taken to heart: “think that you may be mistaken”.
Candor: In an adversarial system, judges expect and want you to argue your side of the case. But that does not mean you should cover up its weaknesses. Candor in facing up to them is disarming and often powerful. It builds trust. Judges who have read the parties’ written submissions do not want to hear you repeat in oral argument what you have written; they want to hear your response to the other side’s submissions. You also have to be candid in advising clients. If you create unrealistic expectations and the results are not what they expect, you will hear about it.
Coping effectively with stress: Litigation is society’s way of resolving conflict peacefully, and conflict is inherently stressful. The best antidotes in my experience are preparation and civility. If you are thoroughly prepared, the stress of worrying that you have not done everything you can to advance your client’s interests is removed, or at least minimised. If you deal with opposing counsel with courtesy and respect, you will not aggravate the stress resulting from the parties’ conflict by piling on the stress of conflict with the lawyer on the other side. From the vantage point of the court, civility is also good advocacy. A sense of humour does not hurt either.
Judge Learned Hand’s advice should be taken to heart: “think that you may be mistaken”.
Adapting to Change: In ‘The Origin of Species’, Charles Darwin wrote that it is not the strongest of the species who survives, nor the most intelligent, but rather the one that is able best to adapt to its changing environment. I suspect that is true of our profession as well. Many of our traditions should be treasured, but we cannot stand still. It would be impossible to practice effectively today without deploying the tools enabled by the technological advances of the last 40 years. Just as importantly, advocates must adapt to social change, including change as reflected in jurisprudence and reform legislation.
The Importance of Written Advocacy: When I started practicing, I believed that oral advocacy was what made the difference between failure and success. I considered written submissions much less important. In most cases today the opposite is true. Your written submissions on appeals and motions are what form judges’ initial impressions, and those impressions are difficult to displace. When the court reserves judgment, the judges have the written submissions in front of them as they draft their reasons. When I started practicing you could almost always take as long as you wanted to argue your case. Over the course of my career, courts have imposed time limits on oral argument. This too has underscored the importance of written advocacy.
Are there other ways in which the practice of litigation changed in your time?
Many of the changes have been retrogressive. We used to have what in Ontario we called County Court cases, where young advocates could try claims over real estate or employment agency commissions and the like and gain valuable trial experience in cases in which the stakes were relatively low. There were few relevant documents and the pre-trial stages consisted of pleadings and short examinations for discovery and that was about it.
Now we also have endless case conferences, status hearings, pre-trial conferences and mediations, all designed to promote settlement and prevent cases going to trial. For cases that should be tried, the added steps simply add time and expense. The advent of email has resulted in an exponential increase in the number of documents that must be produced, and a corresponding increase in cost. Access to justice has suffered. So have the opportunities for advocacy for young lawyers.
We have made some progress recently in promoting proportionality through limiting discoveries and holding mini-trials confined to resolving issues of credibility on which cases turn.
Tell us about your practice today.
I practiced for most of my career in large firms. Five years ago I started my own litigation boutique with my daughter, Brooke MacKenzie, who had three years’ experience as a litigation counsel at a large and prestigious national firm. We concentrate our practice primarily in two areas: civil appeals and professional responsibility opinions and litigation. Almost all of our clients are other law firms or were referred to us by other lawyers. Brooke and I always knew that our partnership would have a limited shelf life, but practicing with Brooke has been the highlight of my career.
I am also a Member Arbitrator at Canada’s leading arbitration chambers, Arbitration Place.
How did you come to develop your interest in professional responsibility?
When I was in law school in the mid-1970s, students were not required to learn professional responsibility. There was an optional seminar in Legal Ethics. I did not take it and I do not know anyone who did.
I was lucky at the beginning of my career to practice with one of Canada’s leading counsel, who was recognised as the lawyer to call on if you got in trouble with the profession’s self-governing body, the Law Society. I started acting for other lawyers on discipline hearings myself, and during the late 1970s and throughout the 1980s I represented lawyers in that forum on dozens of occasions.
From 1990 to 1993 I took a mid-career break to become the Law Society’s Senior Counsel (Chief Prosecutor). While I held that position I wrote my text, ‘Lawyers and Ethics: Professional Responsibility and Discipline’. It was published in both a Practitioners’ Edition and a Student Edition. I have kept it current, and the 6th Student Edition was published in 2018, when we celebrated the book’s 25th anniversary.
While I was a Bencher I chaired a Task Force on modernising the Law Society’s Rules of Professional Conduct, which were badly outdated and in need of reform. The new rules that resulted have been used as a model in other Canadian jurisdictions.
I was unable to represent lawyers in professional conduct proceedings while I was a Bencher, but I have resumed doing so in recent years. It is the most important work I do.
What is your role in representing lawyers in professional conduct proceedings?
To protect the reputation and livelihood of practitioners. Often that involves protecting lawyers from regulatory overreach. In my experience, regulators sometimes seem to have little conception of how devastating to a lawyer even an allegation, let alone a finding, of professional misconduct can be.
What are the most common ethical issues that arise in your practice?
No other profession devotes anything like the amount of attention to ethics that we do.
The duties of confidentiality and resolute representation (which is sometimes referred to as the duty of zealous advocacy, particularly in the US) are duties peculiar to lawyers and are sometimes seen as being at odds with non-lawyers’ ideas of ethical conduct.
I have frequently acted on motions to disqualify law firms from acting in litigation because of alleged conflicts of interest. Even though the Supreme Court of Canada has established governing principles in a series of decisions since 1990 the outcome of disqualification motions is often unpredictable. This is because of the differing orientations of judges toward them. Some judges place the highest priority on protecting the reputation of the administration of justice if there is even a hint of a potential conflict. Other judges believe that most disqualification motions are tactical and place a higher priority on fairness to litigants and the prima facie right to be represented by counsel of their choice.
No other profession devotes anything like the amount of attention to ethics that we do.
Is there anything that lawyers can do to avoid allegations of disqualifying conflicts?
You have to maintain a conflict management system so that potential problems are identified promptly. Your database should be as comprehensive as possible, listing all parties to transactions and litigation.
You should avoid receiving confidential information from a potential client until you check conflicts.
If a potential conflict is identified, the key is to remember that the identification of a potential conflict is only the first step in the process. You cannot act on both sides of a dispute, of course, but most other conflicts can be managed. If the concern is that a lawyer in your firm has received relevant confidential information from a former client, promptly putting in place an effective ethical screen is likely to protect against disqualification. Engagement letters should carefully circumscribe the firm’s mandate and specify the circumstances in which the firm may act adverse to the client in unrelated matters. In some cases, problems may be addressed by limiting the firm’s role and entrusting part of the client’s representation to independent co-counsel.
You have received a number of awards and accolades. Which ones are most meaningful to you?
I do not consider ratings based on peer reviews to be significant, because many lawyers just vote for their friends and colleagues, or vote based on name recognition. One that means more to me was being honoured by induction as a Fellow of the American College of Trial Lawyers 21 years ago. Also, I was elected a Bencher of the Law Society of Ontario four times for four-year terms, and I was elected (or acclaimed) as Treasurer of the Law Society three times (the Treasurer is the Law Society’s President—the title is derived from the Inns of Court in Britain). In 2010 I was awarded an honorary Doctor of Laws degree in recognition of my contributions to the profession. These things are nice if you do not take them too seriously.
Gavin MacKenzie
MacKenzie Barristers
Address: Richmond Adelaide Centre, 120 Adelaide St. W., Suite 2100, Toronto ON, M5H 1T1
Tel: 416-304-9293
Mob: (416) 579-9528
Email: gavin@mackenziebarristers.com
MacKenzie Barristers is a boutique litigation practice concentrating on civil appeals and issues of professional responsibility and liability. They are frequently retained by other lawyers for advice or representation on legal ethics issues and professional responsibility disputes; to act as independent counsel for a third party or affected person in continuing litigation; or to collaborate or act as counsel on a motion or an appeal.
Gavin MacKenzie was called to the bar 43 years ago. His practice has since focused on commercial litigation, civil appeals, arbitrations, judicial review applications, and professional responsibility, liability and discipline. He has appeared as counsel in over 200 reported cases, before all levels of court including the Supreme Court of Canada and before many tribunals. He was honoured by induction as a Fellow of the American College of Trial Lawyers in 2000. He is the author of Lawyers and Ethics: Professional Responsibility and Discipline – a leading authority on legal ethics and professional responsibility and liability issues for practitioners and the courts for the past 27 years – and in 2010 he was awarded an honorary Doctor of Laws (LLD) degree from the Law Society of Upper Canada in recognition of his contributions to the legal profession.
