Skip to content
LPBN-Icon-v1 (1)
Legal Profession Blog
A Member of the Law Professor Blogs Network

Accused Attorney Cannot Cross-Examine Complaining Witness

By Michael Frisch

The British Columbia Law Society Hearing Division has granted an adjournment to permit the Respondent to secure counsel and arrange for someone other than Respondent to cross-examine the key witness

The Respondent practises in Nanaimo. He has been a member of the BC bar for just over 47 years.

He has been cited for conduct alleged to have occurred at an examination for discovery he conducted of the female opposing party (“CK”) in a family law matter. The Citation alleges that during and after the examination:

(a)        he made statements that were discourteous, uncivil, offensive, or demeaning, and

(b)        he engaged in harassment by inappropriate conduct or comments toward CK, that he knew or ought to have known were unwanted and could have the effect of violating CK’s dignity.

The alleged conduct occurred on September 16, 2020. The Citation was authorized on June 6, 2022.
 
The hearing
 
Proceeding with the hearing would have created unfairness to both the Respondent and the complainant, CK. The Respondent, although he had initially decided to proceed without counsel, changed his mind after speaking with Ms. Brown. Mr. Beaubier on the Respondent’s behalf noted some contested evidentiary issues that the hearing panel will face, both in terms of what he says are highly relevant documents the Respondent may try to introduce, but whose admissibility the Law Society disputes, and in whether the opinion of Ms. Brown in her affidavit can be admitted as expert evidence. It is preferable for a fair hearing that the Respondent have able and impartial counsel to address these issues, to conduct witness examination, and to make submissions. There is wisdom in the old maxim about the foolishness of those who represent themselves.
 
It is also very unfair to CK to put her in the unenviable position of having to agree to the Respondent personally cross-examining her in return for the hearing proceeding. While it is commendable that she agreed to do so to help preserve the hearing dates, the concerns that underlay my original order to appoint counsel to cross-examine have not gone away. The crux of the disputed allegations is the conduct of the Respondent while cross-examining CK. Repeating the process is not a helpful exercise for the parties or the hearing panel.
 
(Mike Frisch)

Posted in:
Bar Discipline & Process