Wife Accused Of Baby Murder May Nor Represent Spouse In Attorney Incapacity Proceeding
A non-attorney spouse may not represent her husband in proceedings involving his capacity as an attorney, according to a recent decision of the Law Society for Upper Canada Tribunal Hearing Division.
This is a capacity application under s. 38 (1) of the Law Society Act, RSO 1990, c. L.8 (“Act”). The Law Society alleges that the Lawyer, Byron May, is not capable of meeting his obligations as a lawyer because of physical or mental illness. It has brought a motion under s. 39(1) of the Act asking that the Tribunal order that the Lawyer be examined by a psychiatrist of the Law Society’s choosing.
The Lawyer’s wife, Catherine May, who is not a lawyer or paralegal, asks to be his representative in this proceeding. She, and not her husband attended the hearing at the time scheduled. We must decide whether she will be allowed to be his representative.
The Law Society says that we should not allow her to be his representative because she has a conflict of interest. There are currently criminal charges against her in which she is accused of attempted murder of her adopted baby daughter. Ms. May is confident the charges will be dismissed for delay under s. 11(b) of the Canadian Charter of Rights and Freedoms, but as of now the case is still ongoing.
It appears that originally the Lawyer told the police he saw Ms. May trying to drown the baby. There is now a written confession that appears to be signed by the Lawyer and was sent to both the Law Society and the Crown. The confession says that his statement about the drowning was a lie. It says that he and his daughter tried to kill Ms. May and the baby by drugging them with ketamine. In his letter to the Law Society, he asks that the Law Society revoke his licence to practise law. Ms. May acknowledges she was involved in drafting this document although she says it reflects the Lawyer’s statements and wishes.
Ms. May says that she is the only person able to speak for her husband, who is currently very ill from several diseases and cannot speak clearly or leave the house. She says that she understands what he wants. He has repented, she emphasizes, and he has confessed to his crimes. She states that he wants his case to be a lesson to future generations of lawyers. She says that she loves her husband unconditionally, despite his participation in these crimes. She argues that it would be a perversion of justice to remove her as his representative.
There is a conflict of interest
Here, there are many ways in which Ms. May’s interests conflict with those of her husband in this proceeding. We refer to three that in our view are particularly significant.
First, the question of who, if anyone, was attempting to kill the baby is a significant issue in the criminal case against Ms. May. If the Lawyer was telling the truth in his confession, rather than when he went to the police, Ms. May is more likely to be acquitted. Ms. May’s interest in obtaining an acquittal by having the confession believed may well create a pressure to act in her own interests rather than his best interests in this proceeding about his capacity. The believability of his confession may be connected to his capacity, now and at the time it was made.
Second, the signed confession, the Lawyer’s understanding of what he signed and Ms. May’s role in its preparation and signature will likely be an important piece of evidence in the criminal case and perhaps in this case. Ms. May’s interest in justifying her own conduct in connection with that confession runs the substantial risk of impairing her ability to act only in the Lawyer’s interest.
Third, Ms. May wrote to the Law Society on February 10, 2015 (three days before the confession was sent), making accusations against the Lawyer and asking that his licence be revoked. She noted that she was “devastated by his action towards his own baby and lawful wedded wife.” There is a substantial risk that in representing him before the Tribunal, her own feelings about the events surrounding her and the child may colour the submissions she makes and make it difficult to act solely in his best interests.
In these circumstances, Ms. May has a significant conflict of interest that would imperil the proper administration of justice and the Law Society’s system of professional regulation. This is the case even if Mr. May has consented, which itself is in question given the real concerns about his capacity on the evidence before us. She cannot be permitted to appear as Mr. May’s representative.
We recognize that given the evidence before us, which includes indications that Ms. May is controlling Mr. May’s access to others, the Lawyer may be unrepresented in this process. We are conscious of our duty to carefully scrutinize the evidence and submissions to ensure that they meet the relevant legal tests.
The hearing is scheduled to resume on May 25. (Mike Frisch)