The PMO, Arthur Hamilton, the Senate, and the Razor’s Edge
The octopus like Senate scandal has directed its tentacles of suspicion at a wide range of individuals: Stephen Harper, the PMO, Duffy, Wallin, Brazeau, Wright, and most recently the Conservative Party’s lawyer Authur Hamilton.
In an excellent series of recent articles (here and here) Postmedia’s Stephen Maher details some of the concerns that have emerged regarding Mr. Hamilton. Maher is right to ask questions about Hamilton.
As a starting point it must be acknowledged that there is a vacuum of information with respect to some of the specifics of the relationship between Hamilton and the PMO’s office. None the less, Maher’s reports and Duff’s disclosure of Hamilton’s involvement in the sordid incidents at the heart of the scandal merit reflection.
The CBC recently asks: Who is Arthur Hamilton. Mr. Hamilton seems to be the Conservative Party’s go to lawyer:
Hamilton also acted for six conservative MPs responding to litigation seeking to over turn election results in ridings involved in robocalls. In that case Hamilton’s conduct was commented on by the Federal Court. Justice Mosley said Hamilton engaged in “trench warfare in an effort to prevent this case from coming to a hearing on the merits”.
Any consideration of Hamilton’s transfer of $13,560 from his firms accounts to pay Duffy’s legal bills or his other involvement in the current scandal must be viewed in light of his past and substantial involvement with the Conservative Party.
Harper’s centralized system of control is also relevant when considering the flow and control of information (after all this is the ‘Harper Government’).
It must also be remembered that Hamilton is not Stephen Harper’s lawyer. He is counsel for the Conservative Party. However, Harper and the Conservative Party are not entirely distinct entities. There comes a point when Hamilton and Harper must have shared information relating to the current Senate scandal. This is the real issue and an issue that could put the lie to Harper’s version of history.
Inferences about the flow of information between Harper and Hamilton can be found in the rules that govern lawyers. Lawyers in Ontario are governed by the Law Society of Upper Canada and must follow the Rules of Professional Conduct.
Lawyers have concurrent obligations to their clients and to the administration of justice. Sometimes lawyers are required to walk the razor’s edge in order to comply with both of these competing duties. It is however, a path that should not be sought out. One can be forgiven for wondering if Hamilton is walking the razor’s edge.
Lawyers have a duty of honesty and candour with their clients. In relation to a lawyer acting for an organization rule 2.02 of the Rules of Professional Conduct advises:
While the organization or corporation will act and give instructions through its officers, directors, employees, members, agents, or representatives, the lawyer should ensure that it is the interests of the organization that are to be served and protected. Further, given that an organization depends upon persons to give instructions, the lawyer should ensure that the person giving instructions for the organization is acting within that person’s actual or ostensible authority.
Was the Duffy payment in the interests of the Conservative Party? Was Wright acting with appropriate authority? What inquiries were made?
Lawyers are also bound by rule 2.02(5) which deals with dishonesty and fraud by a client. A lawyer shall not
(a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct;
This rule applies whether the lawyer’s knowledge is actual or in the form of wilful blindness. The Law Society instructs that once a lawyer acting for an organization learns that the organization has acted, is acting, or intends to act in a wrongful manner, then the lawyer must report the matter “up the ladder” of responsibility within the organization until the matter is dealt with appropriately. This ladder leads to Harper.
The Rules speak of dishonesty. Stephen Harper has called Wright’s act a ‘deception‘. This sort of deception is surely captured under rule 2.02(5).
Did Hamilton know of the deception? Was he willfully bind to it? Did Hamilton report up the ladder as required?
Given the history and background between Hamilton and the Conservative Party there can be legitimate questions raised about the duty of candour and potential organizational dishonesty.
A lawyer and his organizational client cannot structure affairs in such a way as to insulate those in power from responsibility. A lawyer should not be their client’s dupe.
As Maher and the opposition parties have pointed out – there is reason to question Hamilton’s involvement in the Senate affair. This is not necessarily to call into question Hamilton’s compliance with his duties. Quite the opposite in fact. The reason questions about Hamilton’s involvement must be asked is to test Harper’s assertions of innocents and naïvety.
If one assumes that Hamilton acted ethically, at some point he must have gone ‘up the ladder’ and had conversations with Harper. These conversations could not have possibly occurred given Harpers version of history (although that is in and of itself a bit of a moving target). The conflict is obvious.
Were there conversations between Hamilton and Harper or between Hamilton and others in the PMO’s office? If so when and about what? If not, given the admitted deception, why not?
Hamilton may very well be walking the razor. Ironically he may be walking the very razor that proves fatal to Mr. Harper’s story.