Shut Up, My Friend

A Hearing Panel of the British Columbia Law Society imposed a $5,000 fine and costs as a sanction based on the attorney’s admission of misconduct in an in-court verbal exchange. 

The Respondent’s professional conduct record includes a third conduct review in October 2013.  The Respondent had contacted the Law Society for guidance the day after he realized he had acted wrongly in a matter, but he did not follow the guidance until almost one month later.  At that time, he had moved to Smithers; was unable to obtain employment with a firm and was practising alone; had completed an acrimonious divorce; was regularly communicating with the Law Society for practice advice; had remarried with a woman who had three children; and he and his new wife had a child.

The attorney represented a mother facing an order excluding her from her child’s life.

At issue was the client’s drug use.

The Respondent interrupted to say reports had been provided to opposing counsel on “an ongoing basis.”  This began a disagreement between opposing counsel and the Respondent during which opposing counsel spoke in a raised, antagonistic voice.

Opposing Counsel:      No, they have not.

Mr. Hudson:               They have so, I have —

Opposing Counsel:      They have not been —

Mr. Hudson:               — the faxes

Opposing Counsel:      — provided.

[Father]:                     Am I being —

Mr. Hudson                 Okay.  Your Honour —

[Father]:                     — am I talking, or?

Mr. Hudson:               — we can just adjourn this, because it’s clear that somebody is not telling the truth.  And I have confirmations showing those have been sent.

[Father]:                     There was two in June.  I haven’t received any —

[Mother]:                     You just wanna go — 

[Father]:                     — since then.

[Mother]:                     — to court.

Mr. Hudson:               Shhh.  Stop.

[Mother]:                     [Indiscernible/overlapping voices]

Mr. Hudson:               Your Honour, this is — all just needs — let a judge hear it.  Because it is clear that [Father] is not open to the evidence that’s actually been provided, and doesn’t wish to actually see any possibility that anybody can change.  Even though she’s complied with the orders — 

Opposing Counsel:      If my friend is finished —

Mr. Hudson:               — and he — 

Opposing Counsel:      — with his speech — 

Mr. Hudson:               — and he also — 

Opposing Counsel:      — I wonder if we might move on it — 

Mr. Hudson:               Could you shut up?

Opposing Counsel:      You shut up yourself.  You shut up.

Mr. Hudson:               No.

Opposing Counsel:      Don’t tell me to do anything back and forth like this.

The Court:                  Counsel.

Opposing Counsel:      I won’t put up with this.

The Court:                  Counsel.

Opposing Counsel:      Who the hell do you think you are anyway?

Mr. Hudson:               Excuse me.

Opposing Counsel:      Just —

The Court:                  Counsel.  Counsel, what are you doing?  What are you doing?

Opposing Counsel:      I — I’m — Your Honour — 

The Court:                  Please.

Opposing Counsel:      — I have been — I have been — listened to my friend make aspersions about [Father] on and on, and this — this cannot continue.

The Court:                  Oh — 

Mr. Hudson:               There have been no — 

The Court:                  — counsel — 

Mr. Hudson:               — aspersions, Your Honour.

The Court:                  — please.  Look, let me just cut it short.

It is clear from the video and audio recordings and what is set out in the Agreed Statement of Facts that, during this exchange opposing counsel rose to his feet and approached the Respondent.  Initially the Respondent was seated, but rose to his feet after opposing counsel approached him while shouting at him and jabbing his finger in the Respondent’s face several times.

Judge Hoy intervened and expressed his disappointment in the conduct of counsel.  He concluded the case conference, referred the parties to the judicial case manager and adjourned.

Ah, Canada. Where attorneys may refer to another as “my friend” while telling him to just shut up.

The attorney apologized for the incivility

There is no fixed range of discipline for incivility that constitutes professional misconduct.  Recently, Law Society counsel provided a panel with a summary of penalties in panel decisions when members made discourteous or threatening remarks:  the penalties ranged from reprimands to fines ($500 to $3,000) to suspensions (1 week to 6 months). (Law Society of BC v. Foo, 2014 LSBC 21 (CanLII), para. 41)  On the facts in that case and the lawyer’s professional conduct record, the panel imposed a two week suspension.  An application to review was dismissed (2015 LSBC 34 (CanLII)), and the BC Court of Appeal dismissed an appeal.  (2017 BCCA 151 (CanLII))

We conclude that, in the circumstances of this case, a fine is appropriate discipline. 

We find the proposed disciplinary action of a $5,000 fine in this situation is balanced, proportionate and consistent with the principles applied in determining a fair and reasonable discipline in all the circumstances.  Therefore, we accept the proposed disciplinary action.

(Mike Frisch)