Discipline For “Abusive” And “Offensive” (But Not “Silly”) Emails

The Hearing Division Tribunal of the Law Society of Upper Canada has found misconduct in a series of emails to prior counsel and the counsel she retained in a dispute over a file transfer.

In January 2010 the clients – a husband, wife and two children – commenced a personal injury action arising from a motor vehicle accident. They were represented by about nine counsel in succession before they retained Sue Chen in May 2012. That relationship ended in September 2013 when the clients retained Mr. Robson. He asked Ms. Chen for her file and she responded that he should pay her the outstanding disbursements, as she and previous counsel had done upon transfer of the file.

Practice pointer: clients who change counsel like underwear are likely to be a challenge.

The e-mail correspondence between the Respondent and Ms. Chen rapidly descended into a hostile exchange. In the first e-mail filed, dated September 12, 2013, Mr. Robson begins: “Kindly make the [client] file available for collection tomorrow, failing which I am instructed to move in 801 asap”. Ms. Chen responds, in part, with the first of several e-mails that included accusations against Mr. Robson: “Please deal with the transfer of this file in a professional manner instead of making threats.” By the end of that day, Mr. Robson repeats his demand for the file “by 11 am tomorrow … or face the consequences.” He goes on to say: “By your own repeated admissions you are prejudicing my clients and have undermined your credibility as it relates to this matter.”

The charges

The Law Society asserted that the Lawyer sent eight e-mail communications between October 1 and November 3, 2013 to lawyers Sue Chen, Bois Wilson and/or Joel Dick that, viewed in the context of the ongoing action in which the four lawyers were involved, were abusive or offensive.

A sampling

I have found Ms. Chen to be utterly vulgar in my dealings with her. I will admit that has colored my dealings with her – and I have two kids who are half Chinese and have lived in Shanghai for many years so don’t go where you may have been thinking of going.

Halloween goblins must have been working against you all on Thursday and eaten things.

Is this your first motion?

There is a level of idiocy I will not stoop to. You have reached it.

Stop being annoying.

You must be drunk.

The Tribunal’s analysis

Mr. Robson chose not to testify in his own defence. He did not tell us first hand why his e-mail correspondence should be taken as justifiable, or why the three lawyer witnesses for the Law Society were wrong in regarding many e-mails as offensive and abusive, or indeed what he intended by those e-mails other than what they say. We will state his defences – which we take from counsel’s cross-examination of the Law Society witnesses and opening and closing submissions – and then comment on their persuasiveness and impact in this case.

And conclusions

First, echoing a point made by Mr. Watson in his submissions, a significant touchstone is that six of the communications are criticisms of the person, not of the person’s position. The “screw off” comment is a hybrid, since it constitutes a criticism of both Ms. Chen’s position, and her manner of conveying it. Counsel have every right and often an obligation to take issue or voice strong objection in response to an opposing lawyer’s position on behalf of his or her client. That is not what these e-mails say. They are all addressed to Ms. Chen or Mr. Wilson as individuals, gratuitously calling one or the other pejorative names (“vulgar,” “annoying,” “drunk,” “idiocy”) or casting insulting aspersions on their competence or ethics (not acting pursuant to client instructions, “is this your first motion?” “screw off”). 

Second, the words used exceed what licensees should expect to hear or read about themselves when they are carrying out their professional activities. We simply should not speak about counsel that way, however much we disagree with them. It is unnecessary in performing our work to subject others to degrading, vitriolic, nasty and rude commentary or epithets of the kind Mr. Robson used here.

Third, these kinds of personal attacks impede rather than advance the public interest in efficient, effective and accessible legal services. They have a snowballing effect in that one thing leads to another, and they distract from the professional issues at hand.

This was true in a general sense about the time and energy that was wasted over the weekend prior to the charging order motion. More specifically, the poisonous relationship between counsel resulted in many unnecessary exchanges about the phantom motion materials. Much of the e-mail traffic on the Saturday and Sunday – which only exacerbated the procedural challenges that counsel were attempting to navigate – could have been obviated if Mr. Robson had promptly sent a second sworn copy right away to both opposing counsel rather than perpetuating the nasty correspondence.

Fourth, from a broader perspective, degrading and hostile language between counsel is incompatible with their responsibility to the administration of justice and the reputation of the legal profession. The Court of Appeal in Groia (at paras. 166 to 171) rejected the Divisional Court’s requirement that the behaviour harm the administration of justice, but approved the Appeal Division’s holding that “mandating ‘civility’ protects and enhances the administration of justice.” It adopted the Supreme Court’s definition of incivility in Doré (at para. 61) as “potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy.”

But one comment did not cross the line

With respect to the eighth communication listed in the chart, we regard the “Hallowe’en” e-mail of November 2, 2013 as silly, rather than abusive or offensive.

Next

The parties will attend a reconvened hearing for purposes of penalty. No less than one week before the scheduled hearing, both parties shall exchange and file any documents that they intend to introduce so that the material can be reviewed by the panel, without prejudice to its admissibility and weight, in advance of the penalty hearing.

(Mike Frisch)