Without Dignified Restraint

The Appeal Panel of the Alberta Law Society dismissed the appeal of a hearing panel’s finding that an attorney’s letter about a newly-appointed judge was deserving of sanction.

The letter

The Letter, prepared by Mr. Rauf on his firm’s letterhead, was addressed to the Edmonton Journal, but the newspaper did not publish it. Mr. Rauf provided copies of the Letter to other lawyers and to members of the public. Notably, he left copies of it at the Edmonton Law Courts cafeteria. The Letter is reproduced in the Decision. The full extent of the distribution remains unknown.

The Letter criticized both JAB’s conduct as a lawyer and her appointment to the Bench. The Letter went beyond conduct to also criticize JAB’s personal character, ethics and honour.

In the Letter, Mr. Rauf said he experienced “shock” at JAB’s appointment. He wondered if she was appointed by the same “brilliant judges of character” who appointed another judge to the Bench.  He said it was “almost laughable” that JAB would “now go around being referred to as The Honourable [JAB]” when, for Mr. Rauf, she was “anything but honourable.” He said he had “rarely, if ever” seen any Counsel more “ethically challenged”. In so doing, he noted his 40 years of practice across the bar of two provinces and one territory. 

After the introduction, the Letter set out five instances of what Mr. Rauf considered JAB’s improper conduct in his multiple interactions with JAB as a Crown prosecutor. Two of these are alleged to be misrepresentations of, or errors respecting, evidence. One is alleged to be an improper questioning approach during cross-examination of a witness. One is alleged to be a misstatement of law, whether in error or otherwise, in expressing the burden of proof at preliminary inquiry. One was argument to a jury that Mr. Rauf alleged ought properly to have been directed to the trial judge in 2005. This last event was later referenced by the Alberta Court of Appeal in a decision ultimately overturning the conviction. These five incidents occurred over a period of 11 or more years prior to JAB’s appointment.

Rauf said the appointment was a “disgrace” and that he had “no respect” for JAB. In some instances, Mr. Rauf described JAB’s conduct as “deplorable”. He said every encounter he had with her left Mr. Rauf with a “sour taste.” Despite his expression of shock and concern, Mr. Rauf neither reported JAB to the LSA prior to her appointment nor to the Judicial Council after her appointment. ‎

Rauf said he did not report JAB because it would have would have been “immoral” to report her. In his words, he was not a “tattletale.” He considered the Code of Conduct obligation to report peer misconduct to be immoral. He also said, “there is a moral obligation not to obey immoral laws.” He compared his conduct in not reporting the accusations to Nazi soldiers who chose not to obey Hitler. He also compared himself, under oath, to a child who does not report sexual abuse at the hands of his abuser until years later.  Mr. Rauf said he was obliged to write the Letter. Quoting Lord Denning, and in apparent contrast to his prior silence, he said that “Silence is not an option when things are ill done.” His view was that, with her appointment to the Bench, he should stay silent no longer. He said the public had a right to know that “such a person” was now a judge.

The appeal

In this case, the language Mr. Rauf employed to criticize a newly appointed judge and the system that appointed JAB was intentionally designed to be a personal attack, to draw the reader in, and to persuade the reader of Mr. Rauf’s viewpoint, that JAB is not worthy of the title “honourable,” that her appointment is a “disgrace” and that it is “laughable” that she should be called “the Honourable JAB.” He wanted the legal community to accept as fact his opinion that JAB was “ethically challenged” and that those who appointed her were poor judges of her character.

In so doing, he used his firm’s letterhead, invoked his extensive legal experience and used a medium of broad dissemination. The Letter was originally intended for publication in a major newspaper. When that approach failed, Mr. Rauf instead opted for broad delivery by personal distribution. He provided the Letter to many lawyers. He left copies of the Letter at the Edmonton Courthouse. The full extent of the distribution is unknown. Mr. Rauf engaged his professional standing to accomplish his ends.

  The Hearing Committee considered the evidence before it. The Hearing Committee was alive to the need to balance freedom of expression against a lawyer’s obligations of civility. The Letter, on its face, was an uncivil communication and a personal attack on the character, honour and ethics of a newly appointed judge. When faced with a legitimate concern over the tone, language and content of the Letter, Mr. Rauf responded in a way that undermined his bona fides and belied his motives instead of explaining them. 

In responding with biting sarcasm, in writing a letter to report himself for complimentary letters, in invoking Lord Denning’s obligation to speak while simultaneously calling the equivalent Rule in the Code of Conduct bad and immoral, Mr. Rauf provided ample additional evidence that further supported the Hearing Committee’s findings on the important question of bad faith.

Mr. Rauf’s evidence on his views that the Code’s obligation to report misconduct is immoral and should not be obeyed was relevant evidence on good faith because the very premise of Mr. Rauf’s defence was that he was morally compelled to speak out against JAB’s appointment. This stark inconsistency was never adequately explained.  ‎The Hearing Committee did not breach the principles of natural justice in considering the evidence. Nor did it conflate the evidence. The evidence was all directed at and considered under the single citation of conduct deserving of sanction.

 Accusations in the Letter may have formed a reasonable basis for Mr. Rauf’s personal opinion. However, the Accusations were not the issue nor would it have been proper, in this context, to effectively put JAB on trial for her actions, some of which happened more than ten years prior. The lack of good faith was the driving force behind the citation and the Decision. Given the bad faith finding, the question of a reasonable basis for Mr. Rauf’s opinions falls away.

Had Mr. Rauf’s true intent been to improve the administration of justice, a myriad of options were at his disposal. A timely complaint, with its attendant due process, was one option. Public discourse was another. Mr. Rauf was entitled to hold and express his opinions. He was not entitled to express them in the manner he did. The Hearing Committee had ample evidence to find that Mr. Rauf wrote the Letter in bad faith to lash out at a lawyer, now appointed judge, that he disrespected. He intended to attack JAB’s character and the appointment process. Although allegations of prosecutorial misconduct inherently involve strong statements, Mr. Rauf’s tone, language, and delivery crossed the line. Mr. Rauf breached each of the Rules set out in the single citation. His criticisms were neither made in good faith nor were they expressed with dignified restraint. This was conduct deserving of sanction.

 (Mike Frisch)