The Longest And Costliest Bar Discipline Case In Nova Scotia History

A case brought against a Nova Scotia attorney has dragged out over a number of years as recently reported by CBC News

The panel hearing complaints against Halifax defence lawyer Lyle Howe has moved to bring his disciplinary hearing to a close.

The Nova Scotia Barristers’ Society accuses Howe of professional incompetence and professional misconduct. Howe has countered by saying he is a victim of discrimination because of race. If found guilty, the lawyer could be disbarred.

The panel has sat for 60 days, spread out over 15 months. It has heard from about 40 witnesses and generated more than 10,000 pages of transcripts.

Closing arguments started last week and resumed Monday. Originally, the two sides had estimated they would take about a day each to sum up their cases. But when pressed Monday to provide the panel with a timeline, Howe’s lawyer, Jeanne Sumbu, said she would need 14-18 more days to argue that his charter rights had been violated.

The panel balked at that suggestion.

“We’re not here to take a university course, we’re here to argue a case,” panel chair Ron MacDonald told Sumbu.

He also said the arguments she had presented to that point could have been made in much less time.

Panel member Don Murray weighed in, saying complex cases are argued before the Supreme Court of Canada in a day or less.

After adjourning to consider Sumbu’s request, the panel came back with a decision for a much shorter timeline.

Sumbu will have one more day to make the charter arguments, Howe will have two days to respond to the society’s specific charges against him and the society will have one day to respond. It’s all supposed to wrap up on April 19.

The CBC’s Blair Rhodes liveblogged from the hearing.

CBC News analysed the impact of race on the bar case. 

Howe is African-Nova Scotian. He argues lots of other lawyers commit the same infractions he is accused of, but none of them face discipline. The only difference between them and him, he says, is that he is black.

Howe has attempted to build this argument throughout the hearing by asking the same set of questions to each lawyer who testified. Most have admitted that, yes, there had been a time or two when they might have been double booked or late for a court appearance.

But they would also say those double bookings were in courtrooms in the same courthouse.

Howe’s alleged transgressions, however, are more egregious. In an episode cited repeatedly during the hearing, he was scheduled to appear in family court in north-end Halifax, as well as provincial courts in Bridgewater, Dartmouth and Halifax all on the same day. Howe says other lawyers in his firm were scheduled to make those appearances. 

The society bolstered its arguments with court dockets and Howe’s own court appointment calendar, which had been seized in preparation for the hearing.

Howe admitted in his own testimony and in cross-examination of other witnesses that he hadn’t always been diligent about keeping courts and other lawyers informed of his whereabouts, or making scheduled appearances. But he also stressed that his practice methods had improved immensely under the strict conditions and supervision imposed by the society

Earlier this month the same source reported new charges

The Nova Scotia Barristers’ Society has laid three new charges against suspended lawyer Lyle Howe.

That means Howe, who was recently the subject of the society’s longest and costliest disciplinary hearing ever, will face a new one.

The society, which regulates lawyers in the province, alleges Howe breached its codes of integrity, competence and quality of service.

It also alleges Howe “failed to provide various clients with a quality of service that is competent, timely conscientious, diligent and efficient.”

Darrel Pink, the society’s executive director, said some of the charges are based on complaints from clients while others are from other sources.   

Pink said it was impossible, logistically, to include the most recent charges in the hearing that just wrapped up.

“While the hearing was ongoing, a number of other matters came to the society’s attention that resulted in an investigation,” he said.

“Sometimes you can add charges to a hearing if their investigations are complete and the case is still open. In this case, our case was closed by the time our investigations were complete.”

One of the charges deals with Howe’s alleged misconduct during his hearing.

The society said Howe “failed to act with integrity, and failed to be honest and accurate in his representations to the court, clients, the Crown, and the hearing panel.

 Howe, who is still under suspension by the society, called the most recent charges minor “practice management” details. 

“I think at this point some of the charges reflect that the society is desperate in terms of what they’re willing to charge me with,” he said.

“One of the charges is essentially that I didn’t go to court for a client that I didn’t represent for a date that I didn’t set.”

Howe is still awaiting a decision from the panel on his previous hearing, which lasted 15 months and generated more than 10,000 pages of transcripts.

The society accused Howe of professional incompetence and professional misconduct. He countered by saying he was a victim of discrimination because of race. 

A decision isn’t expected until sometime mid-summer, said Pink. If found guilty, Howe could be disbarred.

The series of orders entered in the case can be found here. 

Canadian Lawyer also covered the case.

Canadian Lawyer asked numerous Nova Scotia lawyers to comment on Howe’s claims of racial unfairness in the system — including senior criminal defence counsel who practise in Halifax, members of the judiciary, Dalhousie University law professors, and members of the NSBS governing council. None would agree to an interview. Among those who declined were John Bodurtha, co-chairman of the Barristers’ Society Racial Equity Committee, and Michelle Williams, a professor at Dalhousie University’s Schulich School of Law and director of its Indigenous Blacks & Mi’kmaq Initiative.

In February, Nova Scotia Justice Minister Diana Whalen addressed the issue with reporters, saying the provincial government recognizes the problem and wants more diversity in the province’s courts. “In every appointment we make, we look for diversity on the list of candidates that we have for any positions on the bench,” she said.

Howe says politicians, and leaders in the legal profession, have been saying the same thing in Nova Scotia for the past quarter-century, ever since the release of the Marshall commission report. “You know how many lawyers make money every day off black people in trouble with the law? Where are these white lawyers, making money off black clients — why aren’t they coming out and addressing this problem? What the hell has been done lately? Nothing, nothing has been done. Same for the Barristers Society; they’ve done nothing.”

Stephen Kimber also delved into the bar case for the Halifax Examiner (part one here). (Mike Frisch)