Stipulation: Oh, Behave!

A Law Society of Upper Canada Tribunal Hearing Panel has accepted a joint submission that essentially requires an attorney under disciplinary investigation to behave himself in his communications concerning the ongoing process.

The stipulation involves allegations of discourteous communication in an underlying matter as well as with the bar investigation.

As to the complaining counsel

The Lawyer has allegedly, in private litigation matters, repeatedly engaged in demeaning, abusive and offensive conduct toward opposing counsel.  He claimed, for example, that opposing counsel was having an inappropriate relationship with one of that lawyer’s clients.

He disparaged the religious beliefs of opposing counsel after that counsel requested an indulgence from a court for religious obligations. The Lawyer suggested repeatedly that opposing counsel was perpetrating a fraud on the court.  He sent opposing counsel an overtly anti-Muslim message.

After that counsel complained to the Law Society, the Lawyer sent the following email to opposing counsel on October 4, 2015:

I continued to be seriously concerned about what you managed to get away with your mosque “attendance” before Justice Gibson.

I intend to appeal/re-visit his ruling notwithstanding his forthcoming motion ruling.

You mentioned that the Islamic rules/guidelines sent to you by me regarding your mosque attendance or inability to attend have no application to you.

For the record, would you kindly explain forthwith failing which we will continue to view your conduct as fraud on the court.

As to the Law Society staff

In relation to one conduct application, the Lawyer’s prolific communications with Discipline Counsel and Investigation Counsel over the period from 2008 to 2015 are alleged to demonstrate a pervasive pattern of incivility and complete absence of professionalism.  They are said to be characterized by offensive remarks and threats of other proceedings.

The recent email communications to the Law Society Tribunal addressed to the same Tribunal staff member on January 23, 26, three on January 28 and one on January 31, 2016, are said to be unprofessional and insulting, to accuse panel members of conspiracy in this motion, and to be generally offensive.

And the Tribunal itself

The Lawyer’s remarks to members of the Law Society Tribunal are alleged to have been demeaning and abusive.  He has commented on their personal attire and appearance, referring to them by derogatory names and making unsupported and baseless allegations of incompetence and bias. 

In one email sent on November 6, 2015 to the Law Society Hearings Coordinator he stated:

I would be less than honest, I did not comment on the inappropriate manner in which the head of yesterday’s panel was dressed.

The event was not a motor cycle mamma fest or a party at a local pick up joint.

 In proceedings before the Hearing Panel, the Lawyer compared his experience before the Tribunal with the experience of residential school survivors:

It is an absolutely ludicrous, ludicrous, monstrously wrong decision that has taken a horrific toll on lots of people, including my family, me and my children – most importantly my children.  The residential schools have nothing on what this court has done to me, now – my children, that is.

 On January 29, 2013 in proceedings before Mr. Mark Sandler, sitting as the Appeal Management Conference, the Lawyer made certain comments comparing himself to Jews in Nazi Germany:

And if you send me back to them it’s like you saying ‘It’s 1944 Germany and I might as well change my name to Robsonstein.  I’m not going to get a fair hearing.

…

Just for the record, I think there’s another case of abuse.  Go and try set down [sic] an immediate stay motion, and they just ignore you.  My name is Robsonstein.

His last name is Robson.

The agreed-to conditions include

1.    The Lawyer shall, effective immediately, cease all direct communication with the Law Society, its staff, counsel and representatives, and the Law Society Tribunal, its members, staff and representatives and only communicate with the Law Society, its staff, counsel and representatives and/or the Law Society Tribunal, its members, staff and representatives, as necessary, through Richard Watson, or such other lawyer licensed by the Law Society as he may designate as his counsel, or such other personal representative as may be approved by the Law Society in writing.

2.    The Lawyer shall, effective immediately, refrain from making any derogatory, abusive or offensive statements or representations, through any medium, directly or indirectly, with respect to the Law Society, its staff, counsel and representatives or the Law Society Tribunal, its members, staff and representatives.

3.    The Lawyer shall instruct Richard Watson, or such other lawyer licensed by the Law Society as the Lawyer may designate as his counsel, to confirm in writing to Glenn Stuart, counsel to the Law Society for motion LINT13/16, within three days of this order, that the Lawyer has authorized and retained Mr. Watson or such other lawyer licensed by the Law Society as the Lawyer may designate as his counsel or a personal representative approved by the Law Society in writing to receive any correspondence or other communications from representatives of the Law Society’s Investigations, Discipline or Monitoring & Enforcement Departments, or from the Law Society Tribunal, and that he acknowledges that delivery of any communications to Mr. Watson under this order shall be deemed to have been delivery to him of those communications.

4.    If the Lawyer intends to discharge Mr. Watson as his counsel, the Lawyer shall forthwith instruct Mr. Watson to advise Mr. Stuart, as counsel to the Law Society for motion LINT13/16, in writing, of the name and contact information of his successor counsel or personal representative approved by the Law Society in writing within twenty-four hours, or, in any event, prior to the discharge taking effect. This provision applies, with necessary amendments, to any successor counsel or personal representative approved by the Law Society in writing that the Lawyer may retain.

5.    The Lawyer shall ensure that he is represented by counsel or a personal representative approved by the Law Society in writing at all times throughout the term of this order for the purposes of communicating with the Law Society in accordance with this order.

6.    This order does not relieve the Lawyer from his obligations to respond to the Law Society with respect to matters under investigation, or otherwise, but the Lawyer shall fulfil those obligations by providing any required responses through his counsel or personal representative approved by the Law Society in writing.

7.    If the Lawyer breaches this Order at any time, the Law Society is at liberty to bring, in addition to any conduct proceedings that may be authorized, a new motion for an interlocutory suspension in reliance on the evidence currently before the Tribunal in this motion and any further evidence that it considers relevant.
8.    This order shall be in effect until the earliest of the following:
9.    A panel varies or cancels the order on the consent of the Society and the Lawyer prior to the hearing on the merits of the proceedings to which the motion relates.
10.    A panel varies or cancels the order on the basis of fresh evidence or a material change in circumstances that is brought by the Society or the Lawyer to the panel prior to the hearing on the merits of the proceedings to which the motion relates.
11.    The panel presiding at the hearing on the merits of the proceeding to which the motion relates, prior to disposing of the proceeding, varies or cancels the order.
12.    The panel presiding at the hearing on the merits of the proceeding to which the motion relates disposes of the proceeding.

Except

Having regard to the context of the communications, we concluded that the joint submission, which includes strict limits on the manner and method of the Lawyer’s communications with the Law Society and the Law Society Tribunal, is within the range of reasonableness.  The proposed order does not impair the Lawyer’s ability to respond to investigations and conduct proceedings. While the Lawyer’s communications with other counsel in civil proceedings as set out above is of great concern, the weight of the communications is in Law Society matters rather than in civil matters. A focused restriction order can address the risk in Law Society matters. If further such communications are made, it may be that a further motion will be brought.

TheStar.com had this earlier report on the matter. (Mike Frisch)