No Amended Charges For Attorney’s Vigorous Self- Representation

A Hearing Panel rejected an attempt by the Nova Scotia Barristers’ Society to add charges against an attorney for alleged misconduct in defending himself in a hotly contested disciplinary hearing

A hearing before a Professional Responsibility Hearing Panel, regardless of the potential outcomes for the member under charge, is not an ethics-free zone. There is no ethical immunity for an advocate. There are legitimate restrictions on the scope of appropriate advocacy in order to preserve the integrity of the professional responsibility process. A lawyer is required to demonstrate integrity in all of his dealings with tribunals and other members of the profession: Rule 2. A lawyer is required to act with courtesy and good faith “with all persons with whom the lawyer has dealings in the course of his or her practice”: Rule 7.2-1.

But

Unethical advocacy has to involve something more than being in the full flight of oratory and over-shooting the mark when challenging a witness on cross examination. It has to be something more than “mere rudeness or discourtesy”: Dore c. Barreau du Quebec, 2012 SCC 12, at para.61. Offensive language, or apparently impertinent queries, or arguments that depend on breath-taking logic, or poor judgment, do not necessarily demonstrate any ethical misconduct on the part of an advocate: e.g., Visic v. Law Society of Upper Canada, 2013 ONLSHP 71, at paras.146, 152 – 154.

The accused attorney had made disparaging remarks about judges and prosecutors who were labeled as liars

Frankly, this is fairly mild stuff when one considers the sharp and harsh conclusions that Crown Prosecutors, Defence counsel, and Judges regularly express about witnesses, victims of crime, children, police officers, and experts during the course of advocacy in the criminal courts. We must remember that the Society is complaining about Mr Howe being disparaging of lawyers as witnesses, not as his legal adversaries in the proceedings before us – where we have noted his continuing efforts at maintaining a high level of civility. And we must add this: the validity or persuasiveness of Mr Howe’s description of these people has still not been decided.

And had asked pointed questions on cross

We have heard many lengthy cross-examinations in this matter. We have heard many questions put to witnesses on cross-examination to which the witnesses have expressed disagreement or denial. Mr Howe is stuck with those answers on issues which are collateral. On other issues, Mr Howe is entitled to provide his own competing or complementary version of events. For the Society to ask us to make a decision that we should amend the charges to include instances where they feel that there is no evidence yet to support Mr Howe’s questions on cross-examination, or where the Society believes that there is evidence that runs contrary to Mr Howe’s stated position, is to put the cart before the horse.

The Society’ position unfortunately amounts to this. The Society appears to be asking us to endorse their threat of a charge of professional misconduct to chill Mr Howe’s choices about how he conducts his cross-examinations based on three instances where the Society feels that he went over the line of propriety in questioning a witness. Even if that is not the Society’s purpose, that is certainly a risk of this kind of amendment request. The Society appears to be asking us to tell Mr Howe that it is only legitimate to ask questions on cross-examination relating to an issue already covered in evidence, and which do not challenge the fundamental accuracy of the evidence already before the Panel.

In sum, no amended charges based on in-hearing conduct

If we were to allow the Society, with its substantial resources, to assert misconduct against a young, fairly inexperienced litigator based on approximately 8 alleged litigation errors over the course of approximately 30 hearing days, that would be intimidating to the lawyer who is defending himself. It would also create the appearance that one side in the process could control the kind of defence that the defendant lawyer would be permitted to mount. The risk of chilling the self represented lawyer from his full and vigorous defence of himself out of fear of new charges is too great to allow the requested amendment here. The Society is absolutely free to engage its Complaints Investigation Committee to do its proper work now, or later, to decide whether further charges against Mr Howe are warranted.

The pleadings in the disciplinary case are linked here. 

An order suspending the attorney (reported by the New Breton Post) was entered on September 1, 2016.

CBC News Nova Scotia covered the disciplinary hearing. (Mike Frisch)