Thursday, August 25, 2011

Incivility as Professional Misconduct

No one - including myself - would suggest that civility is not a desirable goal or objective in the delivery of legal services. Civility is a desirable goal or objective in all human endeavour even war. The concern with respect to prosecuting lawyers for incivility is not founded on the premise that civility has no place in the work of lawyers. Rather it is founded on a deep and well-founed fear that unless the rules and standards of civility are carefully tailored so as not to impair fundamental rights such as confidentiality and the lawyer's duty to vigorously defend the accused they are not in the client's best interest to the extent that they interfere with the discharge of the lawyer's duty to the client. In this short piece I wish to delineate some of the issues and problems involved in enforcing civility as professional misconduct among lawyers.

What is the offence ?

The range of behaviour that can be characterized as incivil in the conduct of litigation is not only broad but also very subjective. Stating to another lawyer in a letter that he is speaking nonesense in an effort to tell him that his anticipated motion is untenable has been found to be incivil behaviour. This is so even if the recipient of the letter takes no issue with its contents. Informing another lawyer in an e mail that one's client is not a "cash-cow" and consequently one must be pragmatic in the handlying of the litigation has also been found to be incivil behaviour.(see LSUC v. Guiste) Again, the finding of misconduct was made even though the complaining lawyer did not include it in his initial complaint which the Society closed with a caution. The e mail was included after the complaining lawyer was dissatisfied with the penalty imposed and appealed the initial dispositon.

What is the fault requirement?

Not only is the range of behaviour which can constitute this offence very broad but the recent holding in LSUC v. Guiste and the current prosecution of Mr. Joseph Groia suggests that it is a strict liability offence. A strict liability offence as distinct from a fault based or mens rea offence is one which is complete by the very act itself. The defendant's state of mind is not a factor in the question of whether or not the offence was committed. It is like a parking violation.

Confidentiality agreements
and occasions of privillege:

In LSUC v. Guiste two of the charges stemmed from conduct which took place in the context of a mandatory mediation session under the Rules of Civil Procedure where all of the participants signed a confidentiality agreement. That confidentiality agreement stated the following:

"The entire procedure will be confidential. All conduct,
statements, promises, offers, views and opinions, whether
oral or written, made in the course of the mediation
by any of the parties, their agents, employees,
representatives or other invitees to the mediation by the
mediator, who is the parties' joint agent for purposes of
these compromise negotiations, are confidential and shall,
in addition and where appropriate, be deemed to be attorney
client privilleged. Such conduct, statements, promises,
offers, views and opinions shall not be discoverable or
admissible for any purposes, including impeachment, in any
litigation or other proceedings involving the parties and
shall not be disclosed to anyone not an agent, employee,
expert, witness, or representative of any of the parties.
However, evidence otherwise discoverable or admissible in a
a later proceeding is not excluded from discovery or
admission as a result of its use in the mediation. If not
entirely enforceable, the parties intend that the court
enforce this provision to the extent enforceable by such
court."

Following the opening by employer counsel I admittedly lost my composure and stated words to the following:

- "you can take that offer and shove it up your ass";
- "you don't have to grab a tit for it to be sexual
harassment"; and
- I stated "fuck" a few times.

At my hearing I testified that I made those statements because counsel for the employer had in fact written me in advance of the mediation with a range of settlement which exceeded his offer at mediation. In addition, counsel for the employer suggested in his opening statement at the mediation that in fact no sexual harassment took place and there was never any physical contact.

Defence rejected:

The defence to these specific charges was three-prong. Firstly, the communication occurred on a recognized occasion of privillege under the common law. Secondly, the confidentiality agreement expressly covered the communication as it focussed on the offer and what constituted sexual harassment. Thirdly, that I had an honest belief that my speech was protected by the occasion and the agreement. I sought to present the panel with expert testimony on the standard of conduct at such mediation sessions and the panel refused this evidence on the liability phase of the hearing. The proffered expert testimony suggested that this sort of speech was not out of the norm in the context of sexual harassment cases.

Mediation related
charges:

Once again, I am not proud of the language I employed at the mediation session. I wish this point to be crystal clear. I have appologized to the recipients and I know it shall never happen again. However, my objective here is merely to contribute to a discourse which I see as one of public importance - namely - the regulation of the speech of lawyers and their duty to defend. The real question is this. Would the result from a prosecutorial point of view been different had I stated the following:

- "your underhanded attempt to cause my client to lose confidence in me is noted and not appreciated - sir"

- "sir - your suggestion that only a sexual assault will
constitute sexual harassment in the workplace illustrates
and confirms your ignorance of the subject matter. We shall try this case in a court of law. Mediation is not the forum".

I submit that the above-noted language would result in the same charges and likely the same result - assuming the current strict liability fault requrement for the offence. Here the use of the words underhanded and ignorant could be characterized as a "personal attack" on the other lawyer's professional integrity and competence. In the face of a strict liability offence the offence results from the mere statements without regard to truth or context. Therein lies the problem. The lawyer's ability to speak frankly and forcefully on what he or she perceives to be underhanded conduct by his or her opponent is capable of being censored by such an offence.

Judge initiated complaints:

In June, 2010 His Honour Justice Bassel of the Ontario Court of Justice summoned me to appear before him at Old City Hall to explain my non-attendance on four judicial pre-trials(jpt) which he mistakenly understood me to have missed. I attended and attempted to explain to him that his facts were in error and that I failed to attend two jpts - one in which I called and informed the authorities and the other I acknowledged before him that I failed to attend on account of inadvertence. For some reason His Honour Justice Bassel did not accept or seem to understand my explanation. He forcefully suggested that my non-attendances inconvenienced counsel for a co-accused and that I owed him an appology. I was charged with the following offences stemming from this incident:

1. failing to treat the Court with courtesy and respect
by my submissions;

2. failing to treat the court with courtesy and respect by
my failure to stand when addressing the court;and

3. failing to treat the court with courtesy and respect by
failing to attend at two judicial pre-trials.

The second charge above was withdrawn by the prosecutor at the hearing. The panel dismissed the third charge finding that I did indeed notify the court of one of the attendances and the other was on account of inadvertence since a staff member of my office was ill and failed to note the date in my book. The first charge was based on submissions recorded in a transcript of my attendance before His Honour Judge Bassel. One of them was the following:

"If you been in private, private practice, Your Honour,
you would know that you employ a clerk, I employ a
student-at-law. The student-at-law appeared for a number of
initial dates."

Context is critical when seeking to punish a lawyer for their words or conduct in the context of advocacy. The above passage standing alone could be interpreted by some to be a showing of disrespect. However, a look at the entire utterance may be interpreped very differently - although the discipline panel found differently:

"If you've been in practice, private practice, Your Honour, you would know that you employ a clerk. I employ a student-at-law. The student-at-law appeared on a number of the initial dates and this date had been brought to my office's attention. She wrote a letter, as is in accordance with her obligation. The letter is signed by her. We can enter this, a copy of this, as an exhibt. She even called the client and advised him; but as I indicated, between then, in aand around the 22nd, she was in hospital, she was away from work, she had pheumonia. She came back I believe either the 30th or the 1st of July of last week there and she not inscribe that entrey in my book. It's not uncommon for counsel to overlook or not be aware. I'm not saying that it's not a serious matter. It's very serious. However, that is my explanation. I inadvertantly...failed to be aware that I had this date, and the reason for this is my clerk did not bring it to my attention. She was away, the student was also away and, therefore, I was not aware."

Later on the transcript reveals that I stated to the judge words to the effect that I don't know who this lawyer is and that I don't know if he is some sort of Johnney Cochrane come lately or something that entitles him to greater respect than other lawyers. I had already acknowledged my wrong-doing and appologized. Justice Bassel stated that it was his view that I was sarcastic and disrespectful to Mr. Robbins and the court. Mr. Robbins had no issue with me and never in fact complained about me. He was not even present when I made the utterance. The same trancript contains the following statement on the record:

"If I could, I just wanted to address one more point, Your Honour. I just wanted to say, Your Honour, that with respect to Mr. Robbins, you indicated that it was disrespectfull when I indicated my comment about whether was some sort of Johnny Cochrane come lately or something. I didn't mean that as a disrespect to him, but it just occurred to me that somehow I got the impression that because it was Mr. Robbins, it seemed like it was a greater wrong and I've acknowledged my wrongdoing and indicated that I accept that, yes, I was wrong, and so my statement was not intended to be disrespectful of you, disrespectful of the Court, but it just seemed to me that it conveyed the impression that somehow some lawyers are somehow deserving of greater respect than others and that's why I responded in that way."

Commentary and Analysis:

There is no doubt that civility amongst lawyers in the delivery of legal services to the public is a desirable goal. The problem is that in seeking to prosecute lawyers for incivility we run the risk of tampering with established legal principles such as the confidentiality of settlement discussions and the duty to defend. Indeed, the very issue of confidentiality arose at the penalty phase hearing on June 24th, 2011 when counsel for Novopharm asked the prosecutor to ask the panel to expunge parts of my testimony where the quantum of the ultimate settlement was discussed. The purpose of that specific evidence was to explain my acts and omissions and provide context to them. My consent was requested for such an order by the panel.

Any law or regulation which has as its objective to regulate the speech or conduct of a lawyer in the execution of their duty must be carefully tailored so as to interfere as little as possible with the principle of confidentiality and the duty to defend. Such a law or regulation can not be a strict liability offence because such an offence could not reasonably be said to impair the lawyer's duty to defend as little as possible. Language and a judge's pronoucement in a transcript is open to interpretation. The words of the Supreme Court of Canada in Young v. Young is highly relevant to the civility issue and I quote it below:

"But the fault that might give rise to a costs
award against Mr. How does not characterize
these proceedings, despite their great length
and acrimonious progress. Moreover, courts must
be extreamly cautious in awarding costs personally
against a lawyer, given the duties upon a lawyer to
guard confidentiality of instructions and to bring
forward with courage even unpopular causes. A lawyer
should not be placed in a situation where his or her
fear of an adverse order of costs may conflict with
these fundamental duties of his or her calling."


NOTE: This piece is written for the sole purpose of shedding light on an issue of obvious public importance - namely - the regulation of a lawyer's speech and conduct in the execution of their duty as advocates for clients. The Rule of Law and democracy works best when we allow for a free exchange of ideas.

1 comment:

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