Close quarters Inside a lawyer The new formal Will the pandemic News flash Meet the Bay Street litigator who defends the media p.13 couple’s one-bedroom condo p.29 change legal fashion forever? p.33
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EXIT INTERVIEW Norm Bacal has seen it all. He built a powerhouse Bay Street firm and witnessed its collapse. What can he teach the profession?
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On the cover Photography by Wade Hudson
Spring 2021. Volume 15. Issue 1.
“ The key to being successful is to present your ideas with confidence.”
PHOTOGRAPHY BY WADE HUDSON
Norm Bacal, the former managing partner of Heenan Blaikie LLP p.18
Cover story
Tell it like it is
Ever wonder what really happens on Bay Street? Just ask Norm Bacal p.18
PRECEDENTMAGAZINE.COM 5
Contents
29
15
34
Where have all my legal acquaintances gone? p.9 Letters
Praise for the profession’s most innovative lawyers p.10 Our People
We asked our contributors to tell us how their personal style has shifted throughout the pandemic p.11
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PRECEDENT SPRING 2021
Debrief
Best Practices
Going In-House
On the Record
Dress Code
This Bay Street partner runs one of the top media practices in the city p.13 The impact of the racial-justice movement on Black-led law firms p.15
On precedentmagazine.com
How two lawyers work at home together in a one-bedroom condo p.29 The future of legal fashion p.33 Secret Life
Meet the litigator who’s also an accomplished bagpiper p.34
Stop telling lawyers to work hard and keep their heads down
This common piece of advice misses the mark
IMAGES BY (CLOCKWISE FROM LEFT): STEPH MARTYNIUK, MAY TRUONG, VIVIAN ROSAS, ISTOCK
Editor’s Note
Brief
SPRING 2021. VOLUME 15. ISSUE 1. PUBLISHER & EDITOR
Melissa Kluger SENIOR EDITOR
CONTRIBUTING PHOTOGRAPHERS & ILLUSTRATORS
ADMINISTRATIVE ASSISTANT
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FACT-CHECKERS
CONTRIBUTING EDITORS
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CONTRIBUTING WRITERS
Amy van den Berg Cameron Bryant Jeremy Freed Danielle Groen Mai Nguyen
Allison Baker Martha Beach Catherine Dowling
Lawyer superstars
PROOFREADERS
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Editor’s Note
I miss you One year ago, networking events in the legal community came to an abrupt end. I didn’t realize how much they meant until they were gone
The inauguration of Joe Biden and Kamala Harris was pretty unforgettable. It felt
PHOTO BY IAN PATTERSON
like a real turning point in the American political trajectory — and it was an exciting moment to see the first woman sworn in as vice-president. I was in awe of Amanda Gorman and thrilled to see the musical celebrities who contributed to the historic moment. I loved seeing Michelle Obama, Vice-President Harris and Hilary Clinton wearing purple and was interested to learn more about the artists who designed their clothes. Special indeed. For me, there was something else special about the inauguration. As I watched Barack Obama greet his predecessors, the CNN commentator pointed out that some former presidents only see each other at inaugurations and state funerals. Watching him greet people he doesn’t know very well but was (mostly) glad to see in any event made me truly nostalgic for my own equivalent social gatherings. In non-COVID times, I went to a lot of events. And I didn’t realize how much I had missed them. On March 5, 2020, I attended the Toronto Lawyers Association’s annual awards gala. I haven’t been to a single event in the legal community (or anywhere for that matter) since. While there, I shook some hands, enjoyed some desserts from the buffet (horrifying to think of now) and saw a lot of people I know a little bit. I caught up with a few law-school classmates, said hello to someone I used to work with, connected IRL with some people I only knew on Twitter and introduced myself to a lawyer who was being profiled in an upcoming issue of Precedent. None of these people fit into the definition of “friend,” but, wow, do I miss these more distant connections. You might not be a former Republican president or Lady Gaga, but I miss you just the same. It will still be a while before lawyers in Toronto can be together again at events. But I hope Precedent can help bridge that gap. In this issue, our art directors and photographers went above and beyond to arrange COVID-safe photoshoots while navigating the ever-changing lockdown protocols. The result is an issue filled with pictures of Toronto lawyers. You might not know them all, but perhaps you went to law school with one or know another from Twitter. Maybe you’ll spot a former classmate or colleague. And I hope that brings you a bit of the inauguration-style connection we have all been missing.
Tell us about your best ideas The Precedent Innovation Awards have become an annual tradition. At the outset of spring, we embark on a search for the legal trendsetters who have found creative solutions to some of the profession’s thorniest problems. And so, if you’ve implemented an original initiative that makes the profession better, we want to hear about it. To submit an application, head over to precedentmagazine.com/innovationawards. The deadline to apply is Wednesday, May 5, 2021. We will feature the winners in our Winter issue.
Melissa Kluger
Publisher & Editor melissa@precedentmagazine.com @melissakluger
PRECEDENTMAGAZINE.COM 9
Letters
Your CPD. From your legal community.
START THE PRESSES During this past year of isolation, it felt like I was watching the story of the world unfold entirely onscreen. So it was refreshing to see Precedent return to print for its Winter issue. The paper copy was a tangible 3D symbol of the living professional community that will be there on the other side of our pandemic. Daniel Naymark Naymark Law
Breaking new ground
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PRECEDENT SPRING 2021
The winners of the Precedent Innovation Awards (Winter 2020) are a true source of inspiration. Their achievements have broken down barriers (by helping the profession navigate the notoriously cliquey Commercial List) and improved processes that are otherwise too cumbersome to navigate efficiently and effectively (by untangling the administrative web associated with construction payments). This should encourage all of us to think more broadly, beyond the billable hour and the banality so often ingrained in our profession. Far too often, projects that would make the practice of law better for everyone get buried in the business (and busyness) of billing. It’s great to see creativity, unique approaches and professional solutions brought to life by those who believe in them. Let’s hope that, in the future, those with even an inkling of an idea are inspired to one day make their project a reality.
of the pandemic (“Adaptation,” Winter 2020). Most people would agree that this move is long overdue. The decision to move job interviews online is a particularly welcome change. During an in-person interview, one person sees charisma in a candidate, while another recognizes subtle cues such as designer clothing, expensive jewellery or other signals that subconsciously project class and familiarity. Over Zoom, we’re all a lot more the same, which should eliminate some of the unconscious bias that typically permeates this process. Maybe we’ll even get to merit. Omar Ha-Redeye Executive Director, Durham Community Legal Clinic
The hottest stories on precedentmagazine.com Most views The 2020 Precedent
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Most likes How Brooke MacKenzie
A better plan
Most retweets How Dominique
I was happy to read that Bay Street overhauled its recruitment process in the wake
became a Jeopardy! champion Hussey rose to the top at Bennett Jones
Our People
Dressed to chill In this issue, we have a column that forecasts how legal fashion might change post-COVID. So we asked our contributors to tell us how their style has evolved over the pandemic
“The temptation to work in pajamas is strong, but I’ve tried hard to get dressed every day as if I were going to a casual office,” says Amy van den Berg, a writer based in Northern Ontario. “I have slowly phased out jeans, however, and I recently bought more comfortable pants. Good slippers have also become extremely important!” Her writing has appeared in the Walrus, Broadview magazine and Toronto Life. For this issue, she profiled a litigator who’s also a master bagpiper (“Pipe dreams,” p.34).
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Salini Perera is a Toronto-based illustrator with a knack
PHOTO OF MAY TRUONG BY JANICK LAURENT
for vibrant portrait work. In this issue, her art accompanies a profile of one of Bay Street’s top litigators, who leads a high-profile media practice (“Front page news,” p.13). Her illustrations have appeared in the Walrus, the Globe and Mail and Reader’s Digest. “Now that it’s winter, I’m just a walking pile of scarves and sweaters with glasses,” she says. “And a mask, naturally.”
“My pandemic fashion is no fuss, no muss,” says May Truong, a Toronto-based photographer. “No makeup. No styling products. I used to have blue hair cut into a short, blunt bob. Now, my hair is au naturel. It has grown out and I generally throw it into a low ponytail. My North Face fleece has also become my favourite thing ever.” Her work has appeared in the New York Times, the Globe and Mail and Maclean’s. In this issue, she photographed a lawyer couple’s cleverly designed one-bedroom condo (“Thinking inside the box,” p.29).
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Brief
THE LATEST FROM THE LEGAL WORLD
BEST PRACTICES
Front page news As an elite litigator on Bay Street, Iris Fischer is a stalwart defender of a free press by Danielle Groen illustration by Salini Perera
“ It was especially busy over the summer.” Saron Gebresellassi on how the anti-racism movement of the past year affected her practice p.15
When Iris Fischer, a partner at Blake, Cassels & Graydon LLP, walked into the
Supreme Court of Canada this past October, the massive granite building was practically peaceful. Under ordinary circumstances, the courtroom buzzes: counsellors snap briefcases and talk over each other, while spectators and journalists arrange themselves in the gallery. And given the prominence of the case that brought her to Ottawa — Fischer is lead counsel for the Toronto Star, arguing to unseal the estate files of slain billionaire couple Barry and Honey Sherman — this hearing would have been a particularly hot ticket. But in the midst of a pandemic, protocols change. Only four lawyers were allowed in the courtroom at one time. While the legal team for the Sherman family argued its case to keep the files private, Fischer and her colleague on the case watched on a livestream from a breakout room, where they were able to spread out, have a snack, even take off their wool robes. (After seven months spent working from home in sweats and leggings, she was quick to ditch those robes.) “The whole thing was a lot quieter and oddly comfortable,” says Fischer. “I wouldn’t want it all the time, but in some way, it reduces a bit of the pressure.”
PRECEDENTMAGAZINE.COM 13
Brief Not that Fischer, the head of Blakes’ c elebrated media practice, is inclined to feel the pressure. Over the course of her career, she has played a central role in some of the highest-profile media cases in the country: working on behalf of a coalition of major Canadian news outlets to unseal the Bruce McArthur search warrants; arguing, on behalf of the media and the public, to access documents in the Jian Ghomeshi trial; and successfully challenging an unconstitutional law that restricted access to tribunal records, allowing working reporters to secure those records more quickly and easily. “A lot of cases I do are very much in the public eye, but that doesn’t change anything for me,” says Fischer. “Every time I go to court, I’m there to be a vigorous advocate for my clients.” As a fringe benefit, she’s having a ball. Audrey Boctor, a friend and partner at the Montreal litigation boutique IMK Advocates, streamed Fischer’s appearance at the Supreme Court this fall. “She has this poise and confidence about her,” says Boctor. “You can tell Iris just loves what she does.” The advocacy bug bit Fischer early: strong opinions and robust debate were encouraged around her Richmond Hill, Ont., dinner table, and her parents raised her to speak out against injustice. (It’s an approach that she and her husband, Fred Fischer, a litigator with the City of Toronto, take with their own eight- and 11-year-old kids, who are accustomed to being crossexamined.) “Growing up, there really was this ethos of don’t let anyone walk all over
“A lot of cases I do are very much in the public eye, but that doesn’t change anything for me.” Iris Fischer
you, unless they’re members of your immediate family,” she says with a laugh. Fischer admits that, when applying for a summer job during law school at McGill University, she was not very familiar with the field of media and defamation law. “But when I saw that Blakes had a whole practice focused on freedom of expression, I immediately thought, Oh, that’s for me,” she says. She was drawn to the idea that the legitimacy of our institutions and justice system comes from the public’s ability to scrutinize them. “The media has a really important role to play in any democracy because they are the public’s surrogate,
articularly when reporting what’s happenp ing in the courts.” Soon after she started as an associate at Blakes, in 2006, Fischer contrived to get her office moved to the east side of the floor, where all the media lawyers sat. It also put her squarely in the path of Bert Bruser, elder statesman of the media bar, who would pass Fischer multiple times a day on his way out for a smoke. Soon, he was sending her with 10 minutes’ notice into some Scarborough court to oppose a publication ban that had just been issued. “She was fierce and feisty and articulate and effective,” says Bruser, who’s now retired. “Those are rare qualities in a kid lawyer.” He kept calling on her, and she honed her ability not just to think on her feet but to quickly identify the heart of the issue. That skill has served her well in all aspects of her practice: beyond her work in media, defamation, privacy and access to information, Fischer also handles commercial disputes, white-collar business crimes and internal investigations. At press time, she was awaiting a decision in the Sherman case. Fischer recognizes that what the Supreme Court says is unlikely to be limited to these records specifically. “If the Court changes its longstanding presumption of open access to court records and makes it easier to restrict access, it will of course impact court openness more generally,” she says. But if there is a turn away from transparency, journalists across Canada know Fischer will be right back at work on their behalf.
1985: As a five-year-old, Fischer moves with her family from outside of Tel Aviv, Israel, to Canada.
Iris Fischer Partner, Blake, Cassels & Graydon LLP Year of call 2006
2001: After two years at the University of Toronto, working on an undergraduate degree in psychology, she heads to Montreal for law school at McGill University. Her parents encouraged her to apply for early admission, which she did “almost to humour them,” she says. “But then I got in.” 2004: Fischer joins Blakes as a summer student.
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PRECEDENT SPRING 2021
2005: Fischer begins articling at Blakes, and she is hired back as a first-year associate. “I have a lot of different interests as a lawyer,” she says, “and I’ve been given the opportunity here to pursue lots of different cases.” 2009: Fischer joins lawyers Paul Schabas and Erin Hoult before the Supreme Court to represent the Toronto Star in Grant v. Torstar. The decision transforms Canada’s libel laws, protecting journalists who responsibly report stories that are in the public interest.
2015: After eight years as an associate at Blakes (including two maternity leaves), Fischer makes partner. 2019: She is named head of Blakes’ media group and Toronto lead of Blakes’ business crimes and investigations unit. 2020: Fischer appears before the Supreme Court of Canada to argue, on behalf of the Star and its investigative journalist Kevin Donovan, that the Sherman estate files should not be sealed from public view.
PHOTO COURTESY OF BLAKE, CASSELS & GRAYDON LLP
Timeline of a litigator
Brief ON THE RECORD
Facts on the ground Did the racial-justice protests of the last year boost business at Black-led law firms? by Mai Nguyen illustration by Vivian Rosas
Ten months ago, the deaths of George
Floyd, Breonna Taylor and other Black citizens fuelled mass protests against police brutality and racial injustice in the United States. That movement soon spread to Canada. Amid the nationwide reckoning with systemic racism, there was a push to boost spending at Black-owned businesses. The corporate world pledged to diversify its roster of suppliers and vendors. Individual consumers, meanwhile, made an effort to support Black-owned restaurants and retailers. There was a concrete financial impact. The legal profession, of course, has its own history of racism. So did Black-led law firms see an increase to their bottom lines? We asked three Black lawyers in Toronto to tell us if the anti-racism movement had an impact on their business. Tanya Walker Founder, Walker Law
In the summer of 2020, at the height of the racial reckoning, Tanya Walker, who owns a litigation boutique, noticed an uptick in business. Whenever she lands new clients, Walker likes to ask the same question: why did they seek her out? That summer, a large number of clients said they wanted to be more thoughtful about their legal spending. If they were choosing between several equally qualified lawyers, they were making a conscious decision to hire the lawyer who was Black. In her 15 years as a practising lawyer, Walker had never heard that answer. “They’re not making decisions solely based on the colour of my skin,” she says. “I’d take issue if they were just filling their quota. That’s not my understanding of the Black Lives Matter movement. We want opportunities because we’re confident and capable of doing the job.” Over time, this particular driver of new business has fizzled out. “When I ask people why they retain us,” says Walker, “I don’t hear that reason anymore.”
Saron Gebresellassi Principal, Saron Legal Professional Corporation
Saron Gebresellassi runs her own interdisciplinary legal practice, with a focus on criminal work, wrongful-death cases and human rights. In the wake of the antiracism movement, she landed several cases involving alleged police misconduct. Quite often, these clients can’t afford to pursue such a case, but the society-wide spotlight on police brutality had helped them secure financing. (This includes, for instance, private donations and GoFundMe campaigns.) They retained Gebresellassi because she’d handled similar cases in the past and had spoken out against police b rutality in the media. “It was especially busy over the summer when the uprisings around the world took over,” she says. One might have expected to see a broad cross-section of
society retain Gebresellassi, but, she says, “the uptick came more from African-Canadians.” Lorraine Fleck Principal, Fleck Innovation Law
Well before the George Floyd protests, Lorraine Fleck noticed that an increasing share of clients were seeking her out in an effort to support a capable Black lawyer. Fleck, who runs an IP boutique, speculates that she might have enjoyed this boost because she often represents American companies that are filing IP applications in Canada. The political climate in the U.S., she points out, has provoked a strong reaction by some individuals in the corporate world. “People were so ticked off with Trump and his ilk,” says Fleck. “I think a lot of this might have been a backlash to the outgoing president and values he represented.”
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How this Bay Street partner bolstered his knowledge of the business world In D.J. Lynde’s line of work, there is no margin for error. The 35-year-old partner at McCarthy Tétrault LLP advises banks, private-equity firms and multinational corporations on the most complicated financing and lending arrangements imaginable. Forget a bank loan. In some cases, his clients have to put up billions in collateral to secure billions more in debt from a syndicate of lenders. Lynde is able to navigate the staggering complexity of these transactions with precision. He did not attain that expertise entirely on his own. As a junior associate, Lynde noticed that, although he understood “how to think about the law at a high level,” he lacked a deeper understanding of business and finance. So he enrolled in the business law specialization of the Osgoode Professional LLM, a rigorous graduate program that he could complete on a part-time basis. Lynde dove into coursework that covered a range of relevant topics, including bankruptcy, secured lending and securities. In one course, he pored over real-world cases of restructuring after an insolvency, which has proven useful when working on the finances of distressed companies. He also appreciated how the instructors were made up of “an amazing mix of top academics, practitioners and regulators.” After Lynde completed the program, in 2015, he was armed with knowledge that otherwise would have taken him years to gain in the workplace. “A lot of lawyers think about a deal as: ‘The client asked me to do X, so I’ll do X,’” he says. “But the reason I wanted to become a trusted advisor, and get my LLM, was to go beyond that — to identify problems, walk clients through options and learn from people who’ve been there before me.”
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ASK ME ANYTHING In a tight-lipped profession, Norm Bacal stands out. Once at the helm of one of Canada’s top law firms, he knows exactly how Bay Street works (and doesn’t work). And he’s happy to talk about it by Daniel Fish illustrations by Nolan Pelletier photography by Wade Hudson
was an instrumental source for a piece I wrote on compensation committees. (He told me the following blunt truth: “It doesn’t really matter if you’re a great mentor or you care about teamwork. If you dig into the numbers, you’ll find that most of the money goes to the partners who bring in the most business or who have the highest collections.”) During the first coronavirus lockdown, he shed light on the real cost of downtown office space. No matter the story, he was eager to help. This past winter, I had an idea. Rather than asking Bacal to comment on the occasional one-off story, why not interview him at length on a range of topics that would otherwise go unreported? We could talk about his new life as an author, his career path and the downfall of Heenan Blaikie — capturing an unvarnished look at how Bay Street firms actually work. Bacal was game from the start. And he didn’t disappoint. He answered each question without hesitation. Before I ended our last Zoom meeting, I wanted him to have the closing word. “Final thoughts?” I asked. He replied with a question of his own: “I haven’t spoken enough?”
Part Two: The Confidence Game
Part One: The Candid Source had this nightmare,” Norm
Bacal, the former Bay Street titan, told me with a laugh. By the time he made this comment, we’d spent close to five hours together over three marathon sessions on Zoom. He told me how he transformed Heenan Blaikie LLP into a national powerhouse, only to watch it collapse in astonishing fashion. And he patiently walked me through some of the most mysterious aspects of life on Bay Street. We’d covered a lot of ground. “I thought, Gee whiz, if his goal is to write a hatchet job, then boy, I’ve been way too open,” said Bacal. “But then I thought, He can’t ruin me. I’m done already!” This is not a hatchet job. But Bacal’s joke hinted at a broader truth: in a tight-lipped profession, he is a uniquely frank voice — which is precisely why I sought out his perspective. Bacal is no longer a practising lawyer on Bay Street, but he’s carved out a second career as an author and public speaker. After the dissolution of Heenan Blaikie, he wrote Breakdown, an insider account of the firm’s rise and fall. He then went on to publish Odell’s Fall, a murder-mystery set in the Manhattan legal world. And he’s just released a second non-fiction work, called Take Charge. Aimed at students and junior lawyers, the book covers the soft skills that professionals need to master if they want to advance in their careers. Bacal also speaks at legal events and works as a law-firm consultant. In each role, he shares his hard-won knowledge of the legal profession, defying the industry-wide norm of discretion. That candour has been a boon to this legal journalist. In my seven years as an editor at Precedent, one overarching challenge has been finding lawyers who are willing to speak freely about the profession. By nature, Bacal is downright chatty. Over the past few years, I’ve often called him when reporting on difficult subjects. He
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PRECEDENT SPRING 2021
On our first Zoom call , Bacal, who is 64, wore a casual
green sweater. He sat inside his home office. As he spoke, he peered through rimless eyeglasses that framed his cleanly shaven face. He never appeared strained, and he seldom second-guessed an answer. I couldn’t say the same for myself. Whenever I noticed my own image staring back at me on my laptop screen, I saw someone who tended to hesitate, scrunch his face, readjust in his chair and fidget with his fingers. Bacal’s demeanor was no fluke. As I soon learned, it was central to his professional identity. “The key to being successful,” he told me at one point, flashing a broad smile, “is to present your ideas with confidence, as if you know exactly what you’re talking about.” That doesn’t mean Bacal took shortcuts. He has always been a workhorse. As a high-school student, in Montreal, he maintained a consistent study regimen so that, by exam season, he was ready. “I never even knew what cramming meant,” he said. “I was the person who, the night before the exam, would be watching television.” Throughout his undergraduate coursework and law school, both at McGill University, he earned top grades without feeling much pressure. “Not because I was the smartest kid, but because I was the one who figured out how to prepare.” His road to professional success began when he landed an articling position at Heenan Blaikie. The year was 1980. The 16-lawyer Montreal firm boasted strong commercial and litigation practices, alongside one of the best labour departments in Quebec. Bacal, however, was thrilled to join the tax group. The first time he studied tax in law school, he thought, “Math meets law — what could be better?” Bacal was soon hired back as an associate and, over the next decade, he pioneered a unique tax practice within the entertainment industry. As a fifth-year associate, he designed a groundbreaking tax scheme that laid the foundation for the rest of his career. The details are a bit arcane, but, in the simplest terms, he devised a way for film investors to receive a tax credit that exceeded the amount of real cash they put into a project. This allowed them to turn a profit no matter how badly a movie bombed
Part Three: The Bay Street Dream
In 1989, Heenan Blaikie was well respected in Montreal, but it
at the box office. To be clear, this was not the intent of the law. Bacal had found a loophole. And throughout his career, he continued to mine the tax code for vulnerabilities that his clients could exploit. Ultimately, he would become one of the top tax lawyers in the country. His work ethic played a central role in that achievement. “I could spend eight hours on a weekend trying to figure out a new way to do something,” he said. But his ability to project total confidence to the outside world was just as crucial. There were times, he told me, when a client asked him to explain how a particular aspect of one of his tax schemes worked. Bacal was honest if he was unsure about something, but he always delivered his message with conviction. “As I’ve said 100 times in my career, you just have to say it with authority.” As Bacal talked about his career-long campaign to uncover tax loopholes, I wanted to ask if he ever felt, well, ethically icky about his line of work. After all, he had used his legal talent to help moneyed interests game the system. But this is a delicate subject, so I wanted to broach it with care. What I ended up saying, however, was less tactful than vague. “There’s a little bit of a stigma, perhaps, in a career that’s built around making sure people can avoid paying taxes,” I began. “Did you ever think about that?” Bacal immediately cut through my tortured language. “You mean the morality of it?” he asked. “Yeah,” I said, relieved that he understood. “It’s like being a criminal lawyer,” he told me, not offended in the least at my question. “As long as I don’t break the rules, this is just a game I’m playing. Let’s not get moral about it.”
lacked a national footprint. Bacal was about to change that fact. As a 33-year-old partner, he moved to Toronto to open a fourlawyer operation in the TD North Tower. He planned to turn that outpost into one of the premier law offices in the city — not a simple task. To compete at the highest level, he needed to persuade a team of senior counsel to join his untested, unproven and virtually unknown upstart. He also lacked the budget to offer top-tier compensation. So how did he lure talent? In meetings with potential recruits, Bacal told the same inspirational narrative. “The reason you’re coming to this meeting is that there’s something missing in your professional life,” he would begin. “Otherwise, you wouldn’t even be at this table. So let me be the first to tell you: I can give that to you. If you want to have fun and build this department the way you want to build it, this is the place for you.” On the topic of compensation, he was blunt. “I’m not paying top dollar. I can’t. And I won’t. If you’re in it for the money, go to Cassels Brock. They’ll pay you more.” The strategy worked. Talented lawyers were willing to accept a diminished paycheque in exchange for a collegial, autonomous atmosphere. That bargain came to be known as the Heenan Tax. Not every new hire worked out, but Bacal was able to enlist lawyers who bought into his vision. The firm started to grow. So, too, did Bacal’s stature as a leader. In 1997, Dean Potvin, the managing partner at Heenan Blaikie, stepped down in the wake of a cancer diagnosis, and the partnership had to choose a successor. (Potvin died in 1998.) Because the firm had two centres of power — its home base in Montreal and the rising office in Toronto — it named two managing partners. In Montreal, Guy Tremblay took charge. And in Toronto, the top job went to Bacal. From that perch, Bacal helped turn Heenan Blaikie into a national institution. Over the next 15 years, the Toronto office mushroomed to 200 lawyers, while new offices sprung up across the country (in Calgary and Vancouver) and around the world (in L.A. and Paris). At its peak, the business had more than 1,100 employees and took home more than $250 million in annual billings. Bacal had willed his Bay Street dream into reality. Because he promised a workplace that valued culture over money, his leadership style had to match that lofty ideal. He couldn’t, for instance, oversee a ruthless compensation process that punished partners the moment their performance started to slide. Instead, he would meet with struggling partners to help them with their career plans. On firm retreats, he made sure that 75 percent of the itinerary was focused on social events. That’s how the firm he described to his colleagues would operate. Deep down, Bacal knew that no workplace could offer uninterrupted job satisfaction.“We all have days when we don’t want to come to work,” he said. “When we’re depressed. When we can’t stand the son of a bitch sitting in the office down the hall. When we can’t figure out why our compensation is $25,000 less than some other partner.” If Bacal noticed that a partner seemed unhappy or disconnected, he saw that as a potential warning sign: the person might be thinking of leaving the firm. Quite often, he told me, these partners were feeling unloved. “I would go talk to them. My job was to show them that love and to be a role model to others to increase our emotional connections to one another.”
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We all have days when we don’t want to come to work. When we’re depressed. When we can’t stand the son of a bitch sitting in the office down the hall.”
you to go. I’m not firing you. I can’t fire you. But you have to decide whether you want to keep living in these conditions.” Once Bacal left the office, he knew that the partner would pick up the phone and call a headhunter. Within a few months, the partner would be gone. Mission accomplished. “In the industry,” he told me, “we called it the tap on the shoulder.” There are some downsides to this practice. In the associate ranks, for instance, it creates the impression that partners are faultless professionals who never suffer a career setback. But it’s also respectful. The departing partner can leave without the shame that typically accompanies a termination. That, in turn, can make it easier to start over at a new firm. As Bacal put it: “We don’t want anybody to lose their dignity on the way out the door.”
Part Five: The Fall
In February 2014, I joined Precedent as the magazine’s news
Part Four: The Tap on the Shoulder
My conversations with Bacal presented an opportunity to
ask about the profession’s least-understood rituals. In particular, I wanted to know how the largest law firms oust members of the partnership. I already knew what doesn’t happen: the top lawyer at a large firm can’t slap a termination letter on a fellow partner’s desk. Partners are owners of the business, which makes it impossible to fire them like a typical employee. Yet I also understood that Big Law has mastered the subtle art of pushing out partners, quietly and with discretion. How, exactly, does that happen? The moment I posed that question, Bacal took a quick breath and, without delay, painted a vivid picture of his tried-and-tested method for shedding unwanted partners. He’d walk over to the target partner’s office, knock on the door and step inside. “I know you think you had a great year,” he would begin, “but you’re going to be disappointed with your compensation.” Leaving no room for debate, Bacal would offer two choices. “You can stay and continue to be unhappy or you can look around and see if there might be something better for you out there. I’m not forcing
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editor. In my first week, I started to work into the role by introducing myself to key press contacts, familiarizing myself with the Toronto legal community and coming up with fresh story ideas. But a major news event soon upended that orientation plan. On my third day into the job, Heenan Blaikie announced that it would dissolve. In short order, I published a news piece on the Precedent website and prepared to cover the fallout. The next morning, the dissolution of Heenan Blaikie was the top business story in the country. In the coming weeks, much of the coverage advanced the same theory: that the firm’s collapse was a sign of looming disaster throughout the profession. The legal commentariat argued that deep cracks had formed in the Big Law business model. Increased competition from accounting firms and legal outsourcers, this line of thinking went, was eating into billable hours. So was the cost of fancy office space. And unless the largest firms implemented sweeping reforms, they sat on the knife-edge of catastrophe. In March 2014, the Financial Post reported that, according to an unreleased Deloitte study, “at least one more mid-to-large Canadian law firm will be wound up in the next 12 months.” As a newcomer to the legal community, I lacked the insider knowledge to counter this forecast. So I largely bought it. Then nothing happened. Seven years removed from the downfall of Heenan Blaikie, none of the largest firms in Toronto have fallen. Nor have they overhauled their business models. Bay Street law firms continue to occupy gleaming office space in the downtown core. Accounting firms might have increased their market share in the high-volume, lower-skilled field of document review, but when a corporate client has a high-stakes legal problem, it still hires the Stikemans and McCarthys of the world. Not much has changed. When I spoke to Bacal, it became clear that the theories that sprang up in the wake of Heenan Blaikie’s collapse failed to reflect
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what truly brought the firm down. So what did happen? And what does it mean to the broader profession? In Breakdown, it takes Bacal close to 100 pages to chronicle the firm’s downfall. The condensed version of the story, in my view, begins at the end of 2012. By this point, Bacal and Tremblay had stepped down as co-managing partners. (The timing of these resignations had been pre-determined, five years prior, when the firm finalized its succession plan.) In Toronto and Montreal, two new leaders were at the wheel. And they were staring down a crisis. At the start of 2013, the economy took a nosedive. Across Bay Street, lawyers struggled to stay busy and maintain profitability. The fresh-faced leadership team at Heenan Blaikie lacked a shared vision on how to confront this problem. But one managing partner wanted to adopt a new compensation system that punished poor performers and showered rewards on partners who had best weathered the economic storm. That position won the day. After I asked Bacal about this pivotal management decision, he reminded me that many firms operate under a cold-hearted compensation regime. This model can work. But the partners at Heenan Blaikie had joined a firm that was supposed to care more about collegiality than money. “When they stopped getting what they signed up for, they scratched their heads and said, Okay, so why am I here?” Bacal told me. “If you don’t respect me, how can I walk down the halls and hold my head up?” In the end, they couldn’t. Over the coming year, this brutal approach to compensation drove partners out of the firm. By November, Heenan Blaikie had lost 10 percent of its lawyers, while it suffered an 18-percent decline in profitability. One month later, the Toronto office lost both its top litigator and its top securities partner. In Breakdown, Bacal describes this moment as the “anvil” dropping. At the year end, Heenan Blaikie was on the verge of destruction. Bacal, unwilling to let the firm die before his eyes, stepped back into a leadership role in a last-ditch effort to save a sinking ship. He had one reason to be optimistic: the economy had started to rebound, pushing revenue back to normal levels throughout the legal profession, including at Heenan Blaikie. A recovery seemed possible. In January 2014, Bacal pitched a rescue plan to the executive committee. First, he told them, he would have to deal with a massive overhead problem. Because of cuts and departures, Heenan Blaikie was spending the equivalent of $7 million a year on empty office space in Toronto and Montreal. Bacal planned to ask the landlords for a sizable break on rent. Next, he would need to speak to the bank that held the firm’s line of credit, putting it at ease. To keep the firm’s finances in check, he would place a six-month freeze on all capital distributions to partners who’d left. The upcoming partner compensation process, Bacal told his colleagues, could not move ahead as planned. Instead of taking three months to pore over the data, the compensation committee would make its decisions in seven days. “The bottom line was: we were all getting cut,” Bacal told me. The top-earning partners would take the largest hit. And, to help people who’d had a truly terrible year, Bacal planned to create a $1-million bonus pool. Applications to receive a portion of this fund would have to take place in that seven-day period.
When Bacal presented these ideas to the committee, there was widespread agreement. This was a positive sign. But then he embarked on the final plank in his plan. Bacal asked the executive committee in that meeting, and the entire partnership later that week, to promise that, over the next year, no one else would leave. The bloodletting had to stop. “If we have a continual drain on partners,” he said, “there’s nothing we can say or do that will stop the loss of morale.” On this point, his plan failed. “I couldn’t get enough of them to say yes,” said Bacal. There were some partners who refused to make such a commitment under the intense stress of the moment. One partner told Bacal point-blank: “I’m not saying no, but I can’t say yes. My life’s upside down. I can’t make any decisions right now.” And there were other partners who, according to Bacal, “just weren’t convinced they wanted to be there anymore. There was nothing I could say or do about it.” On a Friday morning in late January, Bacal arrived at the office to learn a piece of devastating news. Two more labour partners had decided to leave. Bacal had to accept the heartbreaking truth: he could not halt the exodus. Which meant the firm could not survive. In February, the firm announced it would close down. At which point the legal community, myself included, waited for the next giant to tumble. This was misguided. Heenan Blaikie did not implode because Big Law writ large was under assault. The reason was much simpler: in a short period, the firm abandoned its ideals. “We tried very quickly to turn ourselves into something else,” Bacal told me. “That’s what the real problem was.”
Part Six: The Fallout
When Bacal and I turned our attention to the aftermath of the
collapse, we dug deep into an often-overlooked aspect of Big Law: the capital contribution. To start, let’s review what is common knowledge. When large-firm associates make partner, they must buy a literal stake in the business. As Bacal explained, the amount is typically half of what the new partner earned in the previous year. If that was, say, $250,000, the contribution would be $125,000. This is no bombshell. What’s less well known is that, with few exceptions, partners make those contributions with borrowed money. When Bacal met with a new partner, he outlined the process this way: “Go to RBC. We’ve already got a facility set up for you. All you have to do is walk in and sign a couple pieces of paper. They’ll advance the money directly to the firm. No muss. No fuss.” From that point forward, the firm makes the interest payments on the loan and, once the partner leaves or retires, it pays back the bank. As a result, partners have no reason to think, let alone worry, about that debt. That is, unless the firm goes out of business — but that would be unthinkable. At Heenan Blaikie, of course, the unthinkable happened. The moment it went under, hundreds of partners were on the hook for the capital contributions they’d made with borrowed cash. Because the firm was no longer there to bail them out, they had to pay back the bank out of their own pocket. “It’s the nightmare scenario that nobody ever worries about,” said Bacal. “And the whole industry is based on this.”
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We tried very quickly to turn ourselves into something else. That’s what the real problem was.”
some broad appeal. So he shopped it around to a few publishing houses. At first there wasn’t much interest, but it eventually found a home at Barlow Books, a publisher in Toronto. When the book launched, in 2017, it thrust Bacal into the limelight. He appeared on CTV News and The Agenda to discuss the untold story of his firm’s demise. The book also provoked a strong reaction within the Heenan Blaikie diaspora. According to Bacal, one cohort of erstwhile colleagues uniformly welcomed the book: everyone who was out of the loop at the end. This includes associates, staff and partners who’d left the firm. Finally, this group understood what happened. Among partners who were present at the firm during its implosion, the response was mixed. Some enjoyed the book. Others refused to read it because, as Bacal told me, “they moved on with their lives.” Another subsection of partners was outraged. “They thought it was treasonous,” said Bacal. “They believe that what happens behind closed doors stays behind closed doors.” Had someone else written the Heenan Blaikie story, I wondered, would Bacal have read the book? “I have no idea,” he said, shaking his head. Then he reconsidered. For one of the only times in our conversations, he revised his answer. “I suspect I would have been one of those people saying, ‘I can’t.’ It would just be too painful.” He went on, “And do I really want to read somebody else’s criticisms of me in the end? Nah, I don’t think so.” These days, as the coronavirus pandemic rages outside, Bacal spends most of his time at home in his study. After he left the practice of law, he and his wife moved out of their large home on Poplar Plains Road and into a downtown condo. Around 6:30 a.m., Bacal Part Seven: walks with his wife, a full-time painter of 25 years, and their dog, The Outsider Lexy, to her studio. After finishing Lexy’s morning walk, Bacal Bacal had lost his life’s work. So what could he do next? heads home to work. In the near term, he moved to Dentons, as counsel, alongside 32 He might log on to Zoom to deliver a talk at a virtual legal colleagues. (Within two months of the implosion, 135 of the nearly event. He also sits on the board of Elevation Pictures, a 170 lawyers at the Toronto office had landed new positions, accord- Canadian film-distribution company. Mostly, though, he writes. ing to an investigation that Precedent conducted at the time.) Two At the moment, he’s in the early stages of two more non-fiction years later, Bacal left. “It was an interim step to get through the books, which will cover the core tenets of law-firm leadership trauma,” he told me. “I will be eternally grateful to Dentons for and high-level practice development. His aim is to pass on his allowing me to do that.” hard-won knowledge to a wide audience. In other words, he’s At Dentons, Bacal explored what post-lawyer life might look doing the very thing that makes him a candid interview subject like. He began work on his first novel. And he started to write on a larger scale. Breakdown. Not because he wanted to publish an insider tell-all. One hour into our last interview, Bacal told me he had to take The idea came from his wife, Sharon, who handed him a notebook another call in 15 minutes. I remarked that I might need to book and said, “Write. You’re an angry man. You need to process your one more meeting to deal with a few final questions. He burst out anger somehow. Do this or go see a therapist.” laughing, baffled that, after nearly five hours, I would need more Once Bacal started writing, he couldn’t stop. He documented time. “I think I’m giving you enough for a book!” he said. the story of his career in painstaking detail, thinking that the final Fifteen minutes later, we concluded the call. In the end, Bacal product would serve as a personal memoir for his four children. was right. I didn’t need to speak to him again. He’d answered every Once the text was complete, though, he wondered if it might have question on my list.
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Debrief life beyond the law
“ Dare I say it’s time to break the shorts taboo?” Cameron Bryant on the post-pandemic future of legal fashion p.33
GOING IN-HOUSE
Thinking inside the box We visit the home of two Toronto lawyers, whose African art, vintage furniture and floor-to-ceiling views give their one-bedroom condo outsized charm by Jeremy Freed photography by May Truong
In the spring of 2018, Jenna and Kai Kramer
moved into a 42nd-floor condo in the heart of downtown Toronto. The couple instantly fell in love with the spectacular views of the skyline afforded by its northeast-facing floor-to-ceiling windows. As in most condos, the square footage was limited, but for this hard-working, travel-loving couple it was enough. Then the coronavirus pandemic arrived. Suddenly, their modest unit became not just a home, but an office, a yoga studio and a bakery test kitchen. “Like most people, we were completely unprepared to both be working from home full time,” says Jenna. “We had to get creative.” For the first six months, they worked together in the condo’s light-filled solarium, but competing conference calls necessitated creating a second office space in the home’s dining room. The work-at-home setup was completed with the addition of a
Jenna and Kai Kramer hang out with their dog, Patrick, in their downtown condo
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Debrief The tenants: Jenna and Kai Kramer Jenna’s role: Legal counsel at Unilever Canada Kai’s role: Associate legal counsel at MongoDB Years of call: 2017 Neighbourhood: St. Lawrence Market Home profile: One-bedroom condo, 700 square feet
French bulldog puppy, named Patrick, who the couple brought home last spring. He earns his kibble by providing emotional support between Zoom meetings. Jenna, who is from Saskatchewan, and Kai, who grew up in Zimbabwe, met in 2016 as summer students at Fasken. “We didn’t particularly get along initially,” admits Jenna. “But by the time we returned to the firm for articling, we were inseparable.” During the break between articling and starting as associates, the couple embarked on a three-month world tour, with stops in half a dozen European countries and sojourns in Singapore, Indonesia, Malaysia and the Philippines. “Our friends thought we were crazy, but we came home closer than ever,” says Jenna. To Kai, the moral of the story is clear: “Find your crazy and embrace it!” From that point on, life moved fast. In 2018, they moved into the condo together and, the next year, they got engaged in Malawi, en route to Zimbabwe. During the pandemic, they both left Fasken to take in-house positions, with Jenna joining Unilever and Kai moving to MongoDB, a high-growth tech company. In May 2020, the pair were married at a 10-person ceremony in a friend’s backyard. As a reflection of their diverse backgrounds, creative passions and travels, the home’s decor is quirky and energetic. Antiques collected from Queen West boutiques share space with wood carvings from Zimbabwe. “It was really important for us to have cultural touchpoints for me because Canada isn’t my ancestral home,” says Kai. The kitchen was important, too, for the pair of enthusiastic foodies. “Lately, I’ve been assembling a different type of bread dough every Friday night,” says Jenna, “so that we have fresh focaccia or cinnamon rolls on Saturday mornings.” The couple is looking forward to resuming a busy schedule of hosting dinners, brunches and game nights as soon as circumstances allow. In the meantime, they’re happy to continue working and hanging out at home. All while admiring the stunning views of downtown skyscrapers. “It’s particularly spectacular at night,” says Jenna. “We’ve lived here for almost three years, and the view is still a novelty to us.”
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The Notorious RBG (above) Jenna found this picture of the late Justice Ruth Bader Ginsburg on Etsy. Ginsberg inspired her to apply for — and land — a clerkship at the Federal Court of Canada, which she completed after her articling term. Island oasis (right) A functional kitchen workstation was a must for this pair of enthusiastic home cooks. After considering everything from a marble slab to repurposed wine barrels, they landed on an industrial chef’s workstation, which was perfect for their ambitious culinary creations.
Wardrobe change In search of a creative solution to the condo’s lack of closet space, Jenna and Kai drove north of Toronto to pick up this vintage armoire they found on Kijiji. The seller told them it was imported from India.
Out of the blue The couple’s first major purchase together was this Danish living-room rug. The cheerful pop of colour contrasts nicely with the condo’s dark floors.
Debrief Checkmate “Though neither of us are on par with Beth Harmon [of The Queen’s Gambit fame], we both enjoy playing chess,” says Jenna, who discovered this hand-carved set on the last day of the couple’s trip to Zimbabwe. “Our suitcases were overflowing, but we couldn’t leave without it!”
It takes a village The dining-room wall features a set of prints by Kehinde Wiley, an American painter best known for Barack Obama’s presidential portrait. “I was raised by my mom and her sisters in Zimbabwe,” says Kai. “This piece is an ode to the women who had an impact on who I am today.”
Office assistant Patrick Ginsburg, the couple’s French bulldog, is an ideal work-at-home companion. “We often joke that we have the best mental health breaks because of our adorable roommate,” says Jenna.
A tall order Kai brought this carved giraffe back to Canada after a visit home to Zimbabwe. “It was bought for me by a really good friend,” he says. “It’s a good reminder of home.”
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Debrief DRESS CODE
New rules The pandemic has done away with stodgy suits and pencil skirts. Are they gone forever? by Cameron Bryant illustration by Katty Maurey
“Pandemic” was the word on all our lips
last year. Gratefully, we have begun 2021 with hope on the horizon in the form of vaccines. As COVID-19 recedes, however, there will still be long-term ramifications for health care, public policy, urban planning and many other realms of society. Even fashion. While it might feel frivolous to talk about style in relation to a pandemic, it isn’t trivial to retailers. In 2020, the global fashion industry lost an estimated US$640 billion in sales. Forced to work at home, many buttoned-down professionals eschewed full suits and blouses in favour of sweatpants and T-shirts. Perhaps this was a choice of comfort — or, perhaps, matching a pocket square with your tie started to seem meaningless after all those hours doomscrolling Twitter. Maybe that’s not such a bad thing. Is anyone truly excited by the prospect of going back to formal business attire all the time? My prediction, for what it’s worth, is that the traditional corporate dress code is gone forever. Post-pandemic, many companies are likely going to instruct their employees to work from home on a permanent basis; others will opt for a mix of remote and inoffice hours. As a result, some of our casual, at-home staples are bound to mix into our office wardrobes. Then there’s the Silicon Valley effect. Even before the coronavirus, casualminded businesses and startups made up an increasing share of our legal clients. This new generation of corporate leaders doesn’t expect us to dress to the nines while we draft their contracts. Business attire is also expensive. For a newly minted lawyer, a full wardrobe of blazers, slacks and skirts might be out of reach — at least without earning a Bay
Street salary or racking up significant debt. No one wants to spend $1,000 on one piece if they can spend the same amount on 10 pieces and look just as good. So how can we prepare for the coming era of casual fashion? Well, don’t wear your AC/DC tour tee and stonewashed jeans in the boardroom. Instead, try dressed-up runners, comfortable luxe jeans and sweaters in neutral tones. Leave your baggy grey sweatpants at home, but wear a pair of fitted black jogging pants, cuffed at the ankle. Dare I say it’s time to break the shorts taboo? In the heat of summer, there’s no reason we should be barred from tucking our blouses or linen shirts into a pair of tasteful dark shorts cut at the knee for men
or mid-thigh for women. Complete the outfit with loafers or ballet flats and, to dress it up a bit, a blazer on top. Fashion has been trending in a casual direction for years, and I anticipate that the pandemic will be the catalyst that pushes us down the path to relaxed workwear. Now is the time for designers of business attire to pivot to less fussy, more affordable items, all made with the same care and rich fabrics. We’ve seen sweatshirts and running shoes on the runway and the red carpet; it’s high time we bring them into the office. Cameron Bryant is a lawyer and lease negotiator with Cirrus Consulting Group in Toronto. He writes about fashion and legal culture for Precedent.
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Debrief SECRET LIFE
Pipe dreams by Amy van den Berg photography by Steph Martyniuk
Lionel Tupman Tupman & Bloom LLP
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A few years ago, Lionel Tupman had
dinner with a client in the financial district. The restaurant had hired a bagpiper, who was flooding the room with music. At one point, Tupman turned to his dining companion and said, “What do you bet that I can play that guy’s bagpipes?” The client laughed doubtfully. So Tupman walked over to the musician, bought him a drink and asked if he could hold the instrument. For a moment, he pretended to be clueless. Then he let loose in perfect tune. “Little did my client know,” says the partner at Tupman & Bloom LLP, “I was a champion bagpiper.” Tupman was inspired to take up the bagpipes as a four-year-old. On a family trip to the Highland Games, a celebration of Scottish culture, he had revelled in the instrument’s majestic sound. “According to my parents, I was awestruck,” he recalls. The bagpipes were also in his blood. In the First World War, his great-great-grandfather had been a piper in the Highland Light Infantry, a Scottish regiment of the British Army. In short order, Tupman started to attend lessons. His talent was astonishing. At seven, he was playing in a piping band alongside adults in their 50s and 60s. Throughout his high-school and undergraduate years, Tupman was a full-fledged professional. He travelled around the world to compete against the most elite bagpipers, earning cash prizes along the way. At the height of his career, the weight of the bagpipes had caused a permanent bruise to form on his collarbone. Once Tupman started law school, he scaled back on competition. These days, he still practises at home and performs at the occasional event. Before the pandemic, for instance, he played a recital at the University Club. Tupman has never lost his sense of wonder at the power of the instrument. “People say the bagpipes stir the soul, and I think that’s accurate,” he says. “You don’t need to be a competitive bagpiper to feel that.”
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