They Shoot Social Workers, Don’t They? Two Week Suspension for “Remarkably Flat” Joke
A decision from the Law Society of British Columbia Benchers on Review involves these facts
The Applicant, who normally represented parents of children who had been apprehended by the Ministry of Children and Family Development, saw a Ministry social worker (“AM”), whom he had never met, in a hallway of the Quesnel courthouse and asked “Are you ‘AM’ … the social worker?” The social worker answered “maybe –who’s asking?” The Applicant then said “I should shoot you … you take away too many kids.”
A two-week suspension was ordered by a hearing panel.
On review, the attorney (through counsel) contended that the remark did not amount to misconduct
It was not a threat because it was neither meant as a threat nor interpreted as a threat by the social worker. The Applicant was attempting to be funny, and even the social worker to whom the comment was directed did not actually believe the threat would be acted on but found it to be highly inappropriate;
The comment by the Applicant was in the nature of banter, which was a result of the social worker’s relaxed demeanour and her “playful social gambit” when the Applicant addressed her in the hallway of the Quesnel courthouse. Specifically, when the Applicant asked, from 20 feet away, “Are you “AM” the social worker?” she responded “maybe, why?” This seemingly set the stage for a joking banter between the Applicant and the social worker when the “shooting” comment was made. It was Mr. Gibbs’ position that the Applicant was trying to be funny, even though the joke fell remarkably flat, and was remarkably unfunny;
The Applicant was a “socially awkward, bombastic lawyer, from a different cultural background,” and the shooting comment was “nothing more than an awkward attempt to be funny”;
The Benchers on Review affirmed the finding of misconduct and sanction
The comment was made to a person whom the Applicant had never met and was not made within the context of representing a client or advancing a client’s case in some manner or even as a result of provocation. We agree with the position of the Law Society that his comment “I should shoot you … You take away too many kids” was egregious because of the person to whom the comment was made, the place where it was made, the context of what was said and what was said had no legitimate legal purpose. The comment did not advance a client matter to resolution.
We also agree that restricting freedom of expression by finding the Applicant guilty of professional misconduct does not impede a lawyer’s duty to speak his or her mind. As per the Court’s decision in Doré, lawyers can speak their mind and carry out their duties with “dignified constraint.” If the Applicant really had an issue about the Ministry unnecessarily taking away too many children from their parents, he could have advanced that issue in a dignified manner, not by telling a social worker for the Ministry that he should “shoot her,” even in jest.
(Mike Frisch)