JEFFREY
MILLER
A new biography of the Italian
artist Amedeo Modigliani has
been getting a lot of attention.
Reviewing Meryle Secrest’s
Modigliani: A Life for The New
Yorker, Peter Schjeldahl recounts
a story that has become mythic,
tied as it is to the artist’s birth:
“His parents, whose house was
being stripped of possessions to
satisfy ruinous debts, invoked an
Italian law that made sacrosanct
the bed of a woman immediately
before and after she delivered a
child. They heaped the bed with
all the treasures that it could
hold, while almost everything
else they owned went out the
door.” Schjeldahl says this “bizarre
yarn…proves to be true.” Well,
not exactly.
Every Modigliani biography
starts with some version of the
tale. Typically the law is called
“old” or “ancient.” Secrest tells us
“the Modiglianis discovered an
obscure Italian law that prevented the authorities from
removing the bed on which a
EDDIE MULHOLLAND / REX FEATURES / THE CANADIAN PRESS
Modigliani’s nudes are fetching higher prices than ever.
pregnant woman was about to
give birth.” Sometimes household
valuables are piled not just on the
bed, but on mother and child
lying there, presumably as the
terrified woman suckles the new-
born artist in circumstances fore-
shadowing a life of extravagant
penury, addiction and illness. In
this way, the story goes, those
items, too, were protected.
Federal lobbyists: Beware of
limits on political activities
LETTER TO THE EDITOR
Re: “Unsubstantiated fraud
claims: The judiciary strikes
back” The Lawyers Weekly,
March 11
OPINION
Dear Editors,
JACQUES
SHORE
&MICHAEL
POLYCHUK
With a Federal election looming, those engaged in lobbying-related activities should be
mindful of current code of conduct rules which dictate how far
one can assist “public office
holders” (including members of
Parliament and ministers) in the
political process. No doubt,
these rules will have an impact
and cannot be ignored. To ignore
these rules risks political embarrassment. Potentially severe
penalties may also be imposed
for offences against the
Lobbying Act. Moreover, the political
engagement of lawyers and professionals working with elected
officials will also be affected.
The Office of the Commis-
sioner of Lobbying (the commis-
sioner) issued new enforcement
guidelines on Rule 8 of the Lob-
byists’ Code of Conduct (Code) in
November 2009 in light of the
decision of Democracy Watch v.
Campbell. In that decision, the
Federal Court of Appeal (FCA)
held that the narrow interpreta-
tion of Rule 8 based upon the
2002 guidelines entitled Rule
8 — Proper Influence — Lobbyists
and Leadership Campaigns was
unreasonable.
I had occasion to review John
Chapman and Adam Stephens’s
article concerning unsubstantiated fraud allegations in Royal
Bank of Canada v. Boussoulas,
[2010] O.J. No. 3611. The plaintiff bank was concerned that its
customer was arranging its affairs
so as to make the loan uncollectible and sued for damages and an
injunction. The judge hearing the
injunction motion found as a fact
that the bank’s concerns were
well founded and that the plaintiff was otherwise entitled to the
injunction sought. However, the
bank had also pleaded fraud
against its customer in connection with the original loan application, and the judge found that
the fraud allegations were totally
without foundation. In the result,
in order to penalize the plaintiff
for having made unfounded
allegations of fraud, the judge
refused the injunction. The authors noted that the court placed an
onus on the claimant’s lawyer, as
a matter of ethics, to be satisfied
that his client could prove fraud
before alleging it in a pleading,
even though the Canon of Ethics
puts no such onus on lawyers.
Unless it is reversed on appeal,
this puts the onus on counsel to
be satisfied that there is prima
facie evidence of fraud before
pleading it, as a matter of legal
ethics; and it is certainly possible
that, in the future, lawyers who
fail to meet this high standard
and who make unfounded and
irresponsible fraud allegations in
a pleading without a proper factual and evidentiary foundation,
might be made personally liable
for the defendant’s costs.
One can go further and also
ask why the same rationale
should not apply equally in the
case of every pleading: if a lawyer
drafts any pleading for which
there is no apparent support in
the evidence, is the lawyer acting
unethically, and if so, can the lawyer later be held personally liable
for the other sides’ costs in appropriate cases? Further, if the allegations are of inappropriate conduct, such as infidelity, cheating a
customer, conspiring to inflate
prices, etc., and if they are widely
disseminated (for example, in the
media), the party’s name will
nevertheless be besmirched and
he or she will have no effective
remedy (because publication in
the media, that an allegation of
“x” has been made in court proceedings, is not actionable) and
an award of costs against the
other party’s lawyer may be the
party’s only vindication.
In the family law arena,
allegations are commonplace
that the respondent is concealing income and/or assets in
furtherance of a fraudulent
scheme to deprive the claimant
of his or her proper entitlement
or that the other spouse is physically, emotionally or sexually
abusing the spouse or a child,
etc. before there is any evidence
at all. If the ruling in RBC v.
Boussoulas, that a lawyer acts
unethically in pleading allegations of fraud in the absence of
evidence, is upheld, it may well
turn out that the family law
claimant’s lawyer is liable to the
other party if his or her client’s
beliefs are unsupportable — and
that the lawyer is liable to his or
her own client if, as it turns out,
the client was right but the lawyer, for ethical reasons, declined
to plead it!
Frank P. Oster
Oster Wolfman LLP, Toronto
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Include name, address and daytime
telephone number. Please keep
letters under 200 words. Letters
may be edited for length and clarity.
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