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The Law of the land

Cover Story
|Written By Kirsten McMahon

Alan J. Lenczner is a dean of the commercial litigation bar who has built a stellar reputation in the world of corporate-commercial clashes, and for the past four decades he has acted on some of the biggest matters hitting the docket. What makes him tick, where does he see litigation going, and why is he so well loved by both plaintiff and defence lawyers?

The minute you step onto Alan J. Lenczner's 140-acre farm northwest of Toronto, the entire world seems to slow down a little. You become instantly relaxed, the air is a little bit fresher, and any worries you might have had are at least put on hold for a spell.

Clyde, Lenczner's 10-year-old dog, may turn his puppy-dog eyes on you in the hope that you'll get a game of fetch going down by the lake. Once you start, however, it's almost impossible to stop, although Lenczner notes that his faithful companion doesn't have the endurance he did when younger.

Lenczner's farm is situated in Caledon - a picturesque, small provincial town surrounded by several quaint country villages.

Ontario's recently appointed Chief Justice Warren Winkler has land nearby, and Lenczner's farm is often the site of Toronto litigation firm Lenczner Slaght Royce Smith Griffin LLP's picnics and social gatherings.

The renovated farmhouse features a huge wraparound deck and the surrounding lake, gardens, and trees dotting the grounds - many of which Lenczner transplanted - make for a picture-perfect summer night with friends and family.

Lenczner Slaght, one of Canada's premier litigation and advocacy practices, was created about 15 years ago with partner Ron Slaght. Turning a small two-person firm into a 32-lawyer commercial litigation powerhouse is no small feat.

At 64, Lenczner is whip smart, spry, humourous, passionate about everything he does, and, it turns out, quite the sous-gardener.

Under the watchful eye and direction of his wife, Joan, they have turned a plot of land purchased 35 years ago into an absolutely stunning, warm, and welcoming homestead.

On the weekends, Lenczner will often rise at the crack of dawn, spending hours mowing his sprawling lawn. That's when he ponders the cases he's working on and, in an almost Zen-like state, comes up with legal questions and answers he's looking for.

Some days you will find him simply sitting at his desk in the sun-drenched den, an addition to the farmhouse. His desk is cluttered with binders of materials for three upcoming appeals at the end of August. Lenczner says he spends about four hours reading, with regular breaks to look out the window.

"It's nice though, because in the summer it doesn't get dark until after 9 p.m., so there's lots of time," he says.

This truly is a glimpse at the all-elusive concept of "work-life balance," except that's a term Lenczner doesn't agree with.

"There's no such thing," he says. "But you know what? There doesn't have to be such a thing. If you like what you're doing, you'll make time for everything and you'll know when to cut it off."

Lenczner's farmhouse office is curiously missing one key item, however. And if you visit his office in Toronto's Oxford Tower on Adelaide Street, your suspicions will be confirmed. Lenczner doesn't own or use a computer.

'I hate BlackBerrys'

"Don't e-mail me. I don't have an e-mail. I don't have a computer. I don't have a cellphone. I don't have a BlackBerry," he says. "I don't have any of those things and I'm more service oriented than all of these guys. I hate BlackBerrys.


"[People] are forever fiddling with their BlackBerrys or their cellphones. You cannot give considered advice when you're responding momentarily. There's nothing in law that can't wait for a few hours. And if you just take the question, think about it, and call your client back, you're much better off.

"All I do is go to meetings and they're not paying attention. They just have an addiction; the fear that they're going to miss something. They're not comfortable with silence."

He says he feels lawyers have lost their ability as professionals to control clients these days.

"We are a profession. You can't get a doctor 24/7. The fact is, yes, you have to be available to a client when he's got a problem, but you don't need to be available constantly, the way we are.

"We've allowed ourselves to be overrun by our clients, and most of their requests, if they had to stop and think about it, they wouldn't put. If they couldn't get you, it would wait."

Partner and long-time colleague Peter Griffin says that while Lenczner isn't "electronically connected, I think is a fair way to express it," when you need him, you can find him.

"So much of the electronic stuff, it's like the more accessible you are the more it begets the need for accessibility, and it sort of feeds itself. If you're somebody in that category who says, 'I'm not going to carry a cellphone. I'm not going to carry a BlackBerry. I don't use e-mail. If you need to find me, call my assistant,' it works and people live with it," says Griffin.

"Does it mean people aren't going to retain Alan Lenczner because he doesn't have a BlackBerry? Not likely. There's a certain forgiveness in how good a lawyer he is and how much in demand he is and remains. It doesn't seem to have caused him to miss a beat."

And Lenczner is a good lawyer who doesn't miss a beat. In fact, he's a great lawyer who's been on practically every major commercial law file and has an amazing career (see sidebar). He's a lawyer's lawyer, the kind that is well respected by all sides of the bar, and he's a heck of a nice guy to boot.

The storied career of Alan J. Lenczner started out a little different from many other lawyers. His dad wasn't a lawyer, his mother wasn't a lawyer, and up until he attended law school at the University of Toronto, he had never met a lawyer in his life.

"I had no idea what lawyers did other than what I saw on television," he jokes.

Fresh from a bachelor's degree in 1964, with a background and interest in literature and languages (French, Italian, and German), Lenczner started to contemplate his next move.

"I almost went in to do a master's degree, but I didn't really want to become a teacher or a professor, and I really went into law school by default," he recalls. "I just had no idea what to do and it's a degree that you can take after your primary degree."


The McCarthy years

His interest in law grew throughout his time spent at law school. When he was done, he articled at McCarthy Tétrault LLP (then McCarthy & McCarthy) and remained there for 22 years.

Lenczner's swansong for McCarthys was most likely Lac Minerals Ltd. v. International Corona Resources Ltd. before the Supreme Court of Canada. The decision basically wrote the book on fiduciary duty at the time and was then the largest civil award in Canadian history.

It's a case that's also dear to his heart and he cites it as one of the most challenging he's worked on.

"The challenge was, it was a fairly undeveloped part of the law, the area of fiduciary duty, at the time. Asking the judge for a huge reward, that was a challenge. They were psychological more than anything else."

Controversial and ground-breaking cases like that have contributed to Lenczner's stellar career, and garnered the profession's attention.


Peter Henderson, chair of the Ontario Bar Association's civil litigation group and lawyer at Kramer Henderson in Toronto, says while he doesn't know Lenczner personally, he certainly knows his career. With a track record like his, it's no surprise that Lenczner will be awarded the 2007 OBA Award for Excellence in Civil Litigation in the fall at a gala dinner with more than 500 lawyers, judges, and dignitaries.

"I do know, being a commercial lawyer in a small litigation boutique, that if you were to ask 100 lawyers in Canada who's named the top civil counsel in Canada, likely a great number of them would name Mr. Lenczner. He's renowned for his litigation ability and for the amount of success he's had winning cases."

Henderson says the decision to bestow the award on Lenczner was unanimous, and what stood out was his ability and history as one of Canada's top litigators.

Part of the gala event includes speeches and "a bit of a roast," says Henderson. One person who is sure to have a few words to say is James Farley, former supervising judge of the Ontario Superior Court of Justice's Commercial List.

Farley stepped down last May ("After 17 years, I needed a change and so did counsel," he laughs) and is now senior counsel at McCarthys. During his time on the bench of the Commercial List - which was established in 1991 for the expedited hearing of certain actions, applications, and motions in Toronto involving issues  of commercial law - Lenczner was a frequent flyer in Farley's courtroom.

"He appeared before me on a fairly regular basis. It was always entertaining and exciting when I had Alan in front of me," Farley says. "I shared many of his views that you should get right to the heart of the litigation quickly as opposed to dancing around the edges.

"Alan's a marvelous advocate. He's a tough competitor; sometimes outrageous but always very fair. There are a lot of people with Alan's ability who could be tempted to skirt matters. Alan always dealt with them head on."

Ontario Chief Justice Warren Winkler says he always enjoys Lenczner's sense of humour and his creativity as an advocate.

"He's got a wonderful wit and sense of humour and warmth, and I just love to see him work," he says.

"He's a good friend and I think he's an interesting person. He's a deep person. I'm very fond of him."

Indeed, it's Lenczner's creativity and ability to deal with the heart of the matter that has served him well. 

Despite breaking out to start his own firm with Slaght (who was also at McCarthys) in 1992, Lenczner enjoyed his time spent litigating at the large firm, working alongside such notable lawyers as John Robinette, George D. Finlayson, and Doug Laidlaw. He describes the firm's litigation department at the time as "very active and vibrant, and I got caught up in that excitement."

"The litigation department was very small at that time. Everybody knew everybody else's business. We socialized a fair bit and we talked to each other about our cases," he says. "It was just like a nice, small litigation firm. And then it grew and it grew and it grew, but it was always a terrific place."

He says once McCarthys' litigation department reached about 70 lawyers, "All of a sudden I'd be in the southeast corner of one floor and Ron [Slaght] would be in the northwest corner of another floor. We used to be able to yell at each other in our offices and tell jokes. Now I had to call to find out if he was there," he says.

When he and Slaght decided to part ways with McCarthys in 1992 and hang out their own shingle, Lenczner says he likened the experience to a dinner party.

"When you go to a small dinner party, you talk to everyone. When you go to a large cocktail party, it's just a lot of 'How are you? How are you?' I was trying to recapture the small dinner party," he says.

"That was my feeling at the time. Now I don't know whether it wasn't just, whatever they call it, middle-age crisis. I just needed to do something different."

Going from a large shop like McCarthys to a two-lawyer firm is about as different as you can get, but Lenczner Slaght quickly filled out with some McCarthys alumni and new associates.


A mentor to young lawyers

If you had to discern which of Lenczner's passions is strongest, mentoring young lawyers would be right up there.


"He's very easy to work with," says Griffin. "He's demanding in the sense that he's looking for the best possible product, as you would expect, but he's not demanding in the sense of being unfair to people who work for him.

"He's very, very supportive of those who work for him. He's very good at developing young lawyers and bringing them along, showing them the trade and at the same time giving them the opportunity to see what he does.

"He doesn't take all the limelight. Obviously, in a case of some significance he may not have a lot of choice as far as how much of a role he gives you, but, for the most part, he gives you a role. He and I haven't worked on cases together for a number of years because I'm getting older and creakier, but he was never one who would prevent you from doing whatever you wanted to do or what you were up to doing - and a bit more."

Lenczner says what he enjoys most about his practice is seeing a new file and working with the young people.

"I love working with 28-, 29-, 30-year-olds. They're smart, they've got great ideas," he says, his eyes lighting up.

"Myself and most of us here have a particular interest in trying to develop younger lawyers, and you've got to stay in contact and in touch with them on a constant basis and over a few years, if you're trying to impart something. In a smaller firm, it's a little easier because you don't have as much rotation. We're all doing just litigation.

"It's all doing by example. We've heard comments where we're compared to a slave ship or something. I keep telling all the young ones around here, 'Just keep rowing.' But, you know, I want the younger people to have a more balanced life, whatever that means."

Ah yes, back to thorny issue of work-life balance.

Lenczner encapsulates more of a work-life harmony, blending both a serious work ethic with family (he has two daughters and a son, and grandchildren), friends, vacations to exotic locations, exercise, and his farm.

He also enjoys the arts with his subscription to the Tarragon Theater. "Have you ever been to the Tarragon? It's fantastic. Best theater in Toronto. Really wonderful!"

His enthusiasm is contagious. You can't help but get excited about what he's excited about.

Lenczner gets up every day at 5:15 a.m. and tries to leave before 7 p.m.

"It's a long day, but it doesn't feel long to me."


Conflicts and the legal profession

Another aspect of working at a litigation boutique is avoiding, or at least lessening the quagmire, of conflicts.

He was quoted in The Globe and Mail shortly after his work in 2006 on CIBC v. Genuity: "A case like this is a nightmare for larger firms." He was leading Genuity's defence team and said if a giant company such as CIBC is on the other side of a legal battle, partners at big law firms are going to be reluctant to litigate against them, fearing they will trip over legal conflicts or alienate a bank and its affiliates as a potential future client.

"I think the legal profession has been put under more strictures than anybody else," he says. "Look at the investment bankers, they've got conflicts every day. I mean, there aren't that many of them when they get into takeovers and bidding, and yet they cope with it, in a business sense, quite adequately.

"I think the Supreme Court has done us a disservice on the conflicts side, particularly [R. v. Neil], where, for example, you finish with a client, they've left your office, and even a few years later you can't act against that client.

"I think we've been penalized too much and it's creating unnecessary roadblocks. There must be a better way."

Lenczner says he can't fathom that large corporate firms have staff whose full-time job is checking for conflicts.

"I mean, that isn't right. We're practising law, we shouldn't have a conflicts guardian."


Another aspect that Lenczner thinks has changed over the years is the prevailing, but shifting, attitude that trials should be avoided at all costs.

"In the '70s and the '80s, litigation was quite promising," he muses. "Today, the corporate area drives most of the larger law firms and litigation is in a secondary position, and most of the litigation is assisting clients with corporate-securities matters.

"So the type of litigation has changed from trial work to application work, and application work relies more on your written skills, presentation of legal points, whereas trial work is more of your advocacy skills.

"It's changing back now, but for a while there was an attitude in our courts, because they were backlogged, that trials should be discouraged. The parties should settle or they should go to arbitration. So there was, sort of, a demoralizing factor. Now this has changed; the courts have caught up, there's more capacity today, so we're seeing a trend towards more trial work."

When asked how he feels about Lenczner receiving the OBA award, Griffin says he's "delighted in no small measure, because he's not someone who looks for accolades."

Indeed, when contacted by Canadian Lawyer for an interview request, Lenczner wondered, "Why the heck would anybody want to read about me?" He also admitted he was a bit shy and embarrassed being the subject of a profile.

Griffin says that, although Lenczner is a very good lawyer, wonderful in court, and has all of the persona of a really good litigator, he's not a showman in the sense of looking for anyone else's approval for what he does.

"Someone like that who really is modest in his own way being recognized is a delight, because it's well deserved."

For Lenczner, almost every day is as fresh as when he started practising law. When asked if he intends to

slow down, he says he'll take things as they come.

"I keep saying I'm going to slow down, but I keep getting such nice briefs. I've actually worked a lot harder in last year and a half than I have in the previous two years. As long as my health and energy are there, I'm fine.

"I just love going into a courtroom and watching the whole drama unfold."

Michael Barrack, president of the Advocates' Society and a lawyer at McCarthys, had the pleasure of working with Lenczner for about 15 years and says he admires Lenczner's great passion for advocacy and "his love of the sport of advocacy. And he would see it that way"

"I think that, for Alan, advocacy is definitional. It's what he is to his core and what he enjoys.

"I think he's a highly energetic guy who approaches everything with a high degree of enthusiasm."

Barrack recalls when they were involved in Waxman v. Waxman several years ago, one of the most extensive, factually complex, and widely  reported cases in Ontario, involving issues of oppression and fiduciary duties.

"I remember Robert Harrison (of Fasken Martineau DuMoulin LLP) in the middle of the Waxman trial, which Alan ended up losing at the end of the day. But Bob Harrison's a different personality type, and we were walking to toward our cars one day and he said to me in the middle of that trial, 'You know, for Alan, every day is fresh meat.' I think that's a great expression," Barrack says.

"Whether he's in the courtroom or out of the courtroom or cutting the grass on his farm or getting enthused about speaking Italian, anything of that kind, he approaches every day as fresh meat."

Besides working on three upcoming appeals, the remainder of Lenczner's summer will be spent working on his farm. With the help of his trusty Ferguson 35 tractor, Lenczner will be sure to find a tree that needs to be transplanted or a rock that has to be transported to one of his several rock gardens, to get the grounds in prime shape for entertaining family, colleagues, and friends.

The simple life truly isn't that simple, but with Lenczner, it sure is a lot of fun.

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