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Jail Contact Draws Retroactive Suspension

By Michael Frisch

The Ontario Law Society Hearing Division has imposed a two-month suspension with full credit for time served for misconduct in client interactions that took place in the Toronto South Detention Centre (“TSDC”)

 Ms. Gupta is a criminal lawyer. She was called to the Ontario bar in 2014.

In May and June of 2018, Ms. Gupta was observed by corrections officers at the TSDC engaging in conduct that violated TSDC policies. CCTV videos record this conduct. Ms. Gupta’s conduct took place with a client for whom Ms. Gupta had acted since the summer of 2016.
 
Specifically:

a.   During the course of interviews which took place on different days, Ms. Gupta’s client was observed on several instances to be reaching out, stroking and holding her hand.

b.   On one day, during the course of an interview and within the span of ten minutes, Ms. Gupta was observed to lower herself four times beneath the interview table with a white charging cable in her hand. Each time, Ms. Gupta is seen rocking back in forth over the span of a few seconds before she rises, still holding the charger cable. On three of these occasions, she was playfully pushing against her client’s legs which she acknowledges was inappropriate. On the fourth occasion, she engaged in brief but inappropriate consensual intimate contact with her client when she rubbed his clothed inner knee with her hand.

The complaint was filed by the institution’s superintendent and had led to the attorney’s cessation of practice.

The client had been charged with a number of offenses 

In the summer of 2016, Ms. Gupta was retained by a client to represent him on a number of historical allegations of sexual assault, which allegedly occurred while he was a youth, and which involved the same complainant. He also retained Ms. Gupta to represent him on charges of assault causing bodily harm and utter threat in relation to the same complainant. The client was detained pending bail on both sets of charges (the assault charges). The client was eventually convicted of the assault charges.

In April 2017, the client was charged with having left Canada to join a terrorist organization (the terrorism charge). Ms. Gupta was retained to represent him on this charge as well.

In the fall of 2017, the assault matters proceeded to trial. In the course of the trial, there was a breakdown in the solicitor/client relationship between Ms. Gupta and the client. Ms. Gupta was removed as counsel of record.
 
Ms. Gupta continued to act for the client on the terrorism charge. A significant amount of the disclosure provided on the terrorism charge was in an electronic format and continued to be provided throughout the course of the proceedings.
 
 In respect of the terrorism charge, Ms. Gupta downloaded the Crown disclosure to a tablet upon which her client would be able to review disclosure in her presence. From November 2017 to June 2018, Ms. Gupta spent on average 15 days per month meeting with her client at the TSDC for three to four hours at a time.

While attorney-client relationship was a rocky one

By May/June 2018, Ms. Gupta had spent a great deal of time with her client. The retainer was important to her as a young lawyer. Her confidence had been somewhat shaken. She felt afraid to reject her client’s gestures and physical contact as she did not want to lose the client. In the view of the forensic psychiatrist who later assessed Ms. Gupta, there was evident sexual tension between Ms. Gupta and this client over time.

The sanction was influenced by her voluntary withdrawal from practice

Our conclusion is also that the two-month suspension should be entirely retroactive and that no prospective suspension is required. In this regard, we note that Ms. Gupta’s undertaking formally recited that she was involved in the regulatory process with an investigation into alleged professional misconduct and that the undertaking was intended to protect the public and address the regulatory issues addressed by the Law Society. The same misconduct that requires a penalty was the conduct that gave rise to the undertaking.

(Mike Frisch)

Posted in:
Bar Discipline & Process