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July 6, 2013 permalink
Need a lawyer to defend your family? Kathryn Smithen practices family law in her own firm in Toronto. She knows the legal system from the inside through her years of experience. Her résumé includes:
She was called to the bar in 2011 when the law society decided she was of good character. You can reach her through her website, Kathryn L Smithen. According to Anne Jarvis in the Windsor Star, Smithen is only one of many practicing Ontario lawyers with a criminal past.
Kidnappers and con artists: Lawyers with criminal records
A man who spent more than three years in prison for cocaine trafficking, a woman with at least 38 fraud convictions and a teacher who lost his licence after pleading guilty to criminal harassment involving a 15-year-old student – they’re all lawyers in Ontario.
The Law Society of Upper Canada has granted legal licences to at least five people with criminal histories in the last five years.
Fraud, theft of money, theft of credit cards and altering or forging documents – Kathryn Smithen has at least 38 convictions over 14 years, until 1993, when she was finally jailed for 18 months.
She stole from employers and was fired for cause five times. She paid the first and last month’s rent and then simply stayed until she was evicted. When she applied for her legal licence, she had two civil judgments against her for fraud and several judgments outstanding. She had also declared bankruptcy twice.
When she disclosed her checkered past on her application to the law society, it triggered an investigation, which revealed more problems, some as recent as 2005. She had made misrepresentations to Immigration Canada, the Canada Revenue Agency, a court and on a rental application. She had also posed as a landlord to get credit information on her ex-husband and his wife to use in court against her former spouse. And she had worked as an escort on and off for nine years.
“If you just looked at the optics of my case, you would immediately say no, right? Go away. This is laughable,” Smithen, 51, admitted in an interview.
Yet now she’s a lawyer, called to the bar in 2011 and practising family law in her own firm in Toronto. Two conditions on her practice, that she cannot have sole control over a trust account and that another lawyer must act as her mentor, expired this month.
Some of Smithen’s clients know her past. Some don’t.
“I don’t go openly tell them,” she said. “If somebody asks me – and frequently they do, this is an Internet savvy age – I try to deal with it frankly.”
One client hired her recently because of her background, she said.
“Because of what I’ve been able to achieve,” she said. “It really impressed him.”
Another potential client wanted to hire her – until she saw her criminal record.
“It made her feel very uncomfortable, and I suggested to her that maybe I’m not the right lawyer for you,” Smithen said. “I respect her. That’s her choice.”
Smithen, who went back to school and earned a journalism degree from Ryerson University in 2002 and a law degree from York University’s Osgoode Hall in 2008, said she deserves her licence.
“I turned my life around,” she said. “I changed everything about the way I was living. And I didn’t feel I should be defined indefinitely by the poorer choices of my life.
“The biggest strength of my case,” she said, “was I absolutely took responsibility for everything. I didn’t make any excuses. I didn’t try to hoodwink anybody. I basically laid it all on the line and said this is me, this is what I’ve done.”
A law society panel, two lawyers and a chartered accountant from Sudbury, that presided over a hearing to determine if Smithen should be admitted to the bar, agreed.
“We were all horrified at the record she had,” said panel chairman James Caskey, a London lawyer.
But he said, “we were convinced beyond any reasonable doubt that this was someone who had turned their life around. They had seen the very definite error of their ways, and they had redeemed themselves completely. We were satisfied on the balance of probabilities that she ought to be granted a licence and that she would be a contributing and very good practising lawyer that would bring credit to the profession.”
The judicial system is about more than punishing the offender and protecting the public, said Caskey. It’s also about rehabilitating people so they can return to society.
“It’s very important we rehabilitate people through our judicial process,” he said. “The law society mirrors that very concept: you must consider the rehabilitative capabilities.”
But not everyone agreed with the panel. When the judge who presided over a matrimonial case involving Smithen in 2005 later saw her articling for a law firm, she was so concerned that she sent her decision in the case, which criticized both Smithen and her ex-husband, to the law society. Janice Duggan, the lawyer who represented the law society at Smithen’s hearing, told the panel that Smithen’s conduct was “so egregious that it could not be overlooked,” according to the panel’s decision, which is a public document. She had been jailed only after being given so many chances at rehabilitation that the court could no longer condone her behaviour. She had filed appeals and applications for pardons – “hardly a sign of remorse.” She still owed a lot of money – more than $339,000 at the time of her application – and only started repaying debts that she knew would be an impediment to a legal licence.
“There are people admitted (to the bar) who legitimately cause the public to ask whether that is the right outcome,” says Alice Woolley, law professor at the University of Calgary and a leading researcher on law society hearings like Smithen’s.
She cited Smithen.
“It’s legitimate to say a person who has been convicted of numerous criminal offences ought not to occupy the role of lawyer,” she said.
Canada does an “appalling” job of screening potential lawyers, Woolley said. One of the conditions for obtaining a legal licence in Canada is being of “good character.” Yet this is only vaguely defined. Most law societies – Manitoba and Nova Scotia are exceptions – don’t even conduct criminal record checks on applicants. In Ontario, the Law Society of Upper Canada relies on applicants to complete a questionnaire asking if they’ve ever been convicted of a criminal offence, disobeyed a court order, had a civil judgment against them, been fired for cause, censured by their professional organization or been bankrupt.
Answering yes to any of these can trigger a hearing like Smithen’s to determine whether the applicant is of good character. The point of the hearings, usually presided over by a lawyer, a paralegal and a member of the public, is to protect the public and ensure public confidence in the legal profession and the law society, which regulates the profession.
But the hearings are “incoherent,” “unfair” and don’t really protect the public, says Woolley.
Applicants have been excluded for conduct that isn’t even a crime, she said. They’ve been denied licences based on charges that were never tried in court, hearsay evidence and incomplete reports. She cited an applicant who was excluded for a hit-and-run accident with minor damage, another for writing a defamatory letter in a fight on a condo board (after a four-year fight, he was finally admitted) and another for a plagiarized thesis. Yet, an applicant who bribed a public official, the teacher whose licence was revoked, the man imprisoned for cocaine trafficking and Smithen, “who had a truly remarkable criminal record,” Woolley wrote in the Canadian Journal of Administrative Law and Practice, were all admitted.
“The outcome in any particular case does not correlate with the severity of the applicant’s past misconduct,” she wrote.
“I don’t think it gives the public any confidence,” she said in an interview.
What seems to matter most is whether applicants confess their misconduct and say they’re sorry.
“It’s about constructing a story that people from the law society find appealing,” she said. “Have you got a good story about redemption? Essentially, you would be better off to lie and say you did something bad and you’re sorry even if you didn’t do it than to maintain your innocence of alleged misconduct.”
Hardly anyone is precluded from the bar anyway, Woolley said. Only six applicants in Canada are believed to have been denied licences on the basis of character in the last six years. Only seven applicants in Ontario have been denied based on character in the last 24 years.
The Federation of Law Societies of Canada, which is developing national standards for admission to the legal profession, is considering replacing the idea of good character with “suitability,” including attributes such as “honesty, integrity and candour.” It’s an attempt to implement “consistent requirements that are clearly defined and defensible,” says federation president Gerald Tremblay. Factors like respect for the rule of law and financial responsibility would be used to assess suitability.
That’s better, says Woolley, but it’s still vague and subjective.
Woolley recommends simply admitting everyone with a law degree who has passed the bar exam. But that’s not likely. Many professions consider members’ character, says Tremblay.
If law societies continue screening applicants, says Woolley, they should clearly outline who can and can not become a lawyer. For example, people who have been convicted of an indictable offence and have not received a pardon can not become lawyers.
“If you’re going to exclude people, exclude them based on what they did, not on how you assess them when you hear them testify,” she said. “We know what they did, but your assessment of their testimony is very unreliable. I could tell you a story. You could think I’m a liar or I’m telling the truth, but you don’t really know.”
Blanket rules might be arbitrary, she said, “but it would be fair and would send a message to the public that people convicted of really bad crimes don’t get to be lawyers.”
Source: Windsor Star