Tortured Logic

An appeal was dismissed by the Hearing Division Tribunal of the Law Society of Upper Canada in a matter involving a California disbarment

Mr. Sumner was called to the California Bar in 2006. The following year, the appellant was arrested and charged with battery and vandalism after a complaint by his roommate. In March 2008, the charges were dismissed. As a condition of the dismissal, he made a $300 donation to a women’s shelter at the request of the District Attorney’s office. In October 2009, with the assistance of counsel, the appellant petitioned for a Declaration of Factual Innocence in relation to the dismissed charge. John Kochis, the Deputy Chief District Attorney, handled the matter for the State. The petition was initially opposed by the local police department, but proceeded unopposed after the appellant entered into a mutual release in January 2010 of any claims with the original complainant.

Beginning in 2010, the appellant concluded that he had been treated improperly by his counsel, the police department, and Mr. Kochis. He accused all of them of lying, and asserted that Mr. Kochis had coerced and tortured him in taking the actions described above. Mr. Sumner began sending e-mails and voicemails to various individuals, most prominently Mr. Kochis, but ultimately including representatives of the California Bar and the Law Society of Upper Canada. He has sent many communications threatening violence in graphic and often vulgar terms. In essence, his substantive goal seems to be to arrest Mr. Kochis on the basis that the latter has committed various criminal offences, and to assert that persons who do not assist the appellant in this endeavour will themselves be committing criminal offences. Most of the communications threaten deadly force if necessary. One of the threats is made against Mr. Kochis’ wife. In another communication, the appellant requests the assistance of the Hells Angels.

In February 2012, the appellant was charged in California with 27 counts of threatening and similar offences. There is an outstanding warrant for the appellant’s arrest in that state.

In December 2014, the appellant was disbarred in California.

Mr. Sumner was called to the Ontario Bar on January 27, 2012. The prior month, he had self-reported that he was the subject of disciplinary proceedings in California. The Law Society commenced an investigation, and a conduct application is before the Hearing Division. In the meantime, the Law Society brought the motion for an interlocutory suspension pending the result in the conduct application.

Here, the tribunal denied exclusion of evidence that the attorney contended was the product of “torture” and “extortion” and found that interlocutory suspension was appropriate

In argument before us, Mr. Sumner based his appeal on the “but for” principle. If not for what he called the unlawful actions of Mr. Kochis, he would not have engaged in the conduct that is before us. We have considerable doubt that the “but for” test will ever justify what is alleged to be conduct unbecoming by a licensee, but it certainly has no such impact in this case. Vigilante justice has no place in a legal system founded on the rule of law and our shared obligation to remedy wrongs through proper institutional processes.

Seen in this light, there is little room for debate that the Hearing Division acted reasonably in reaching the conclusion that it did. There is a significant risk that public confidence in the legal profession and the public interest in the administration of justice would be harmed if a licensee were permitted to continue practising while engaging in the threatening and harassing course of conduct toward various institutional and individual members of the public that the appellant displayed here.

Abovethelaw had reported on the proceedings. The Canadian blog Legal Feeds also covered the case. (Mike Frisch)