Not In A Horticultural Way
The Nova Scotia Barristers’ Society Hearing Committee Panel found that the Member had engaged in misconduct in four of five charged counts
Among the findings of misconduct are emails that the attorney had sent to his own client that the client had subsequently revealed
The Panel finds that the Member’s conduct in referring to the Applicants’ counsel as “idiot boy” and “asshole” was in breach of Rules 2.1-1 and 2.1-2.
The e-mails that the Member sent to KL also disparaged judges of the Supreme Court of Nova Scotia. The Society has alleged that the Member is guilty of professional misconduct by referring to Nova Scotia judges as “pansies” and questioning if Justice Lynch would have any “balls”. The Member has not denied that he made those comments. In his submission he said:
I used the word “pansies” when referring to judges in a summary judgement hearing context, and I wondered whether or not a certain judge has any “balls” in the same context.
The Member has argued that the fact these comments were made “within the most sanctified of all communication – solicitor-client”. It is absolutely clear that solicitor-client privilege has been zealously guarded by Canadian courts and particularly by the Supreme Court of Canada in a lengthy line of cases. But it is also clear that the privilege is that of the client, not the lawyer. If the client chooses to disclose solicitor-client privileged communication that is the client’s right. The lawyer cannot prevent it. Consequently, the fact that these comments may have been made in communications that were initially protected by solicitor-client privilege is rendered irrelevant by the fact that the client, the possessor of the privilege, disclosed them in the course of the taxation of the Member’s accounts.
The argument in defense
The Member defended his use of the term “pansies” in a primarily horticultural way referring to the sensitivity of pansies as flowers.
The panel
This argument, with respect, ignores the fact that the term “pansy” when describing a person is initially always used in a pejorative sense. It is not a neutral expression used to describe someone who lacks courage. It is deployed as an insult. The Member has gratuitously insulted the judges of the Supreme Court of Nova Scotia. This conduct is beyond any reasonable latitude that must be accorded to a lawyer as part of his constitutionally guaranteed freedom of expression.
And
The other comment with respect to a judge with which we are concerned is the Member’s rhetorical question whether a certain judge had “balls”. It is clear that in the context in which this comment was made, it was meant as an insult.
Findings concerning a case conference in an unrelated child protection matter
The Panel accepts the evidence that the Member’s conduct was aggressive and sneering. It also accepts the evidence that the Member scoffed at statements made by AB and adopted a mocking tone with the others in the conference.
The Panel considers that the way the Member gave evidence at the hearing strongly supports these findings. For example, he denied that he knew what “scoff” meant in a plainly scoffing manner which suggested that he knew exactly what “scoff” meant. The Member’s evidence on many occasions was given in a manner with calculated asides and digressions that suggested to the Panel that he regarded the hearing as a performance and things were said or done so that they would have a performative effect. The Member’s conduct at the case conference was intentionally formulated to show how formidable a litigator he was and to intimidate and bully the lawyers representing the Minister and the guardian ad litem. The Panel agrees with the comment of AB that the manner of the Member was abusive. It was far removed from the conduct one should expect from a lawyer and, especially an experienced litigator.
After that case conference, there was a further incident in a photocopy room
The video evidence supports AB’s version of the events in the photocopy room. Clearly there was a heated exchange between AB and the Member. It is also clear that the Member got very close to AB while at the same time making forceful comments. As the Member conceded, he was too close and he should not have done it.
…The Member was certainly aware that his conduct and comments were “unwelcome”. AB asked him to go away. His conduct was also vexatious because AB was obviously irritated or annoyed by what the Member did and said in the photocopy room. Did it constitute a “course of conduct”? The Panel considers that it did. The conduct was not a “one off”; it occurred three times. Instead of doing what AB asked in their initial encounter, and “gone away”, the Member returned twice more. That is sufficient in the Panel’s view for the Member’s conduct to be regarded as a “course of conduct”.
An email to a client in a separate matter
Here the communication is a baseless threat. It is both abusive and offensive. The threat was made when the lawyer-client relationship was still subsisting. It was also made at the end of an arduous hearing when the client could do little, if anything, to respond to the threat which he could not know was baseless. The text message also denied that the Member had a “legal or ethical obligation to do any more”. This was said even though, according to the Member, he intended to carry through with his representation. The closing sentence, “You are playing with fire”, merely served to heighten the intended effect. The very fact that the Member would threaten a client even though he did not intend to follow through with the threat, coupled with the denial of any legal or ethical obligation to do the closing argument, makes the text message both abusive and offensive. The Panel finds that the Member has contravened both Rules 3.2-2 and 7.2-4.
The rejected count
The Member is alleged to have violated all these Rules in one incident namely staring at a witness “while at the same time swearing under his breath”.
(Mike Frisch)