The Ethics Of The F-Bomb: Provocation And “One-Off” Defenses Rejected

The Law Society of British Columbia Benchers on Review upheld a one-month suspension of an attorney for the offense of hurling an F-bomb at a police officer outside a courtroom

The Respondent was cited for being involved in a verbal altercation outside of a courtroom with a police officer who was also a potential witness in a trial where the Respondent represented a client in a criminal matter. In the altercation the police officer said to the Respondent, “Don’t for a minute think I don’t know who you are and what you’re all about,” and the Respondent replied to the officer “fuck you” in an angry and insulting manner. After a hearing the Respondent was found to have committed professional misconduct and was suspended for one month.

The attorney had sought review of both the misconduct finding and sanction.

The review standard

It was agreed by both parties that the standard of review is “correctness.” This applies to both the finding of professional misconduct and the penalty imposed.

The officer’s riposte

Officer B said, “You don’t scare me, you big shot lawyer,” and he pointed out that their chests were touching. Officer B then said, “That’s assaulting a police officer”

The attorney was then handcuffed and arrested.

The Bencher majority

As for whether or not the words “fuck you” were spoken in anger, there is evidence from Crown Counsel that the Respondent became angry, and the demeanour of both the Respondent and Officer B were heated and volatile at the time they were “nose to nose” and moments later when the Respondent uttered the words “fuck you”. Accordingly, it is the view of the Majority that the words were spoken in anger, and not innocuously or harmlessly. Indeed, under the circumstances, it is clear the Respondent could not have used those words in these particular circumstances without the words being meant as an insult and spoken, no matter how loudly, in anger.

Likewise, we do not see the facts of this case as an over-aggressive police officer provoking a lawyer into uttering a verbal insult, leading to a citation from the Law Society. Although Officer B might have taken more proactive steps to diffuse the situation, we believe the Respondent had a higher duty to avoid putting himself into the position where the police officer and Mr. Johnson were “nose to nose”, leading to the expletive being angrily uttered by him.

Provocation was no defense

it does not matter if a lawyer is provoked, or whether the lawyer has reached a breaking point or if litigation is sometimes hostile, aggressive and fierce. Saying “fuck you” to a witness, another lawyer, or a member of the public in a courthouse in an angry, insulting, hostile or belligerent manner, as the Respondent did, is totally indefensible, is always a marked departure from the standard of conduct that the Law Society expects of lawyers and, therefore, always constitutes professional misconduct…

If the hearing panel erred in the use of provocation in assessing whether professional misconduct occurred, does it change the outcome? The Respondent argues that the use of the words “fuck you” are a one-off remark that should be treated as falling short of professional misconduct.

Conclusion

The determination of professional misconduct by the hearing panel is well supported by the facts of this case, and we find no error that should cause the result to be overturned. Thus we uphold the finding of professional misconduct by the hearing panel.

The majority also upheld the penalty.

A dissent from Jamie Maclaren

The findings of fact suggest that the Respondent’s profane reply was more reflexive than purposeful. It was uttered under sudden loss of self-control. I agree with the Respondent’s submission that it was a “one-off” remark that, while clearly rude and aggressive, had no ulterior motive. I also agree with the hearing panel majority’s view that the word “fuck” is not as vulgar and offensive as it used to be; the majority acknowledged that “it is used in everyday conversation harmlessly and innocuously.” Its common and denatured use now extends as far as barrister lounges, law offices, and legislature hallways. When uttered spontaneously in anger, without any accompanying threats, its meaning is largely constrained to emotional punctuation…

Courts and law society panels have repeatedly held that rude and aggressive “oneoff” remarks may not rise to the threshold of professional misconduct, particularly when unaccompanied by threats, violence or intimidation…

I find that the Respondent’s single, bald utterance of “fuck you” was provoked by Officer B’s aggressive and offensive behaviour and did not extend beyond “mere rudeness or discourtesy” under the circumstances. The Respondent uttered the profane but commonplace words without ulterior motive, in a momentary act of anger, and in a private conversation in a quiet area of the courthouse. There is no evidence of bystanders overhearing the utterance. And while Officer B was technically a potential witness in the case then nearing disposition, he had prior knowledge of the Respondent from dealings outside of the courthouse.

The Hearing Panel decision is linked here.  

The panel noted that the attorney had previously engaged in professional misconduct by arguing and coming into physical contact with a prosecutor. 

the evidence discloses that his previous misconduct and other infractions were in part fueled by substance abuse that has now apparently been resolved.

Merriam-Webster has a definition of one-off. The New York Times Magazine reported on the expression in greater depth. (Mike Frisch)