A Marked Departure

The British Columbia Law Society Tribunal Hearing Panel found that an attorney’s treatment of an opposing client in a heated family law matter violated professional standards.

The conduct

(a)           knew that at a previous trial the Respondent was involved in, a woman like CK who essentially had nothing good to say about her husband lost custody of her children;

(b)           was unlikeable and had no friends;

(c)           was a “cold bitch”; and

(d)           was sexually abused as a child.

The Law Society read relevant portions of these passages from the examination for discovery to the Panel, which were included in the Redacted Notice to Admit, and played the audio recording from the discovery.

At the hearing, the Law Society said the Respondent’s questions: (1) were condescending and mean; (2) tried to intimidate CK; (3) made CK feel disgusted; (4) invaded CK’s privacy; and (5) were irrelevant.

Findings

 we find the Respondent’s cumulative conduct during the examination for discovery was contrary to rules 2.2-1, 5.1-5, 7.2-1 and 7.2-4 and we then go on to find his conduct constitutes professional misconduct. In our determination, the Panel determined first, that the conduct was contrary to the Code provisions, and then second, that the conduct amounted to a marked departure of conduct expected of lawyers. The Panel has considered both questions, as not all failures to discharge professional duties will amount to professional misconduct. Both questions required the Panel to consider and analyze the relevant circumstances.

 Context is very important in deciding whether the Respondent’s conduct was contrary to the Code and whether he committed professional misconduct. This was a high conflict family law matter. Discoveries are intrusive and adversarial, even in less contentious circumstances. Moreover, the Respondent has a duty of resolute advocacy to his client. However, this does not permit the Respondent to behave disrespectfully, discourteously, dishonourably, offensively, without integrity and or uncivilly.

Further findings

After the court reporter left, CK, HW, the Respondent and PS stayed to informally explore ways to arrange for the children to see their father and maybe have the family go to counselling. Not long into the meeting, CK walked out. The parties dispute what happened during this meeting.

According to CK, the Respondent: (1) called her a “bitch,” like his wife; (2) said if a big chested blonde had approached him, he would also have left his wife; and (3) said she was sexually abused. She then left the room saying she did “not need to take this anymore.” She said after she left the meeting, HW spoke to the Respondent about what he said. She was shocked, angered, traumatized, hurt and disgusted someone could behave in this way. After she left the meeting, she “absolutely lost it,” called her parents and tried to make an emergency appointment with her counsellor.

We note various terms were used by the witnesses with respect to the comment about the “blonde”: big chested, big breasted, big boobied and big titted. The Panel finds in this context they all mean the same thing.

The Respondent says he did not refer to CK having been sexually abused or refer to his wife or CK as a “bitch.” He said “we all have troubles in our marriage; no marriage is perfect. I come home and want sympathy from the wife and she nags me about things and when I call her on it, she might tell me I should go and find a big chested blonde I’ve always dreamed about” or something to that effect. He admitted in his interview with the Law Society that this was a sexualized comment.

The panel found no need to choose between the competing versions

We find the Respondent’s misconduct in relation to rules 5.1-5 and 7.2-1 was a marked departure of the standard of conduct expected of lawyers in BC. The Respondent’s comments about his wife and the sexualized reference to another woman were discourteous, offensive, disrespectful and uncivil. Personal remarks or personally abusive tactics interfere with the orderly administration of justice and have no place in our legal system: rule 7.2-1, Commentary 2

Conclusion

The Panel finds the Respondent’s conduct during and after CK’s examination amount to a marked departure from the conduct expected of a lawyer and amounts to professional misconduct as alleged in paragraphs 1 (a) and (b) of the Citation.

In a previous matter, Respondent was fined $7,500

At a meeting with his client sometime in the summer of 2021, the Respondent told TK of an alleged rumour he had heard concerning the sexual activity of a member of the judiciary, which took place when that member of the judiciary was in university.

TK advised the Law Society that the Respondent used inappropriate and disrespectful language during this conversation and TK was uncomfortable with the conversation. TK advised the Law Society the Respondent seemed full of delight when he relayed the story and it carried on for some length of time. The Respondent said the conversation lasted a few minutes and the comment that he was “full of delight” was an exaggeration.

The Respondent admitted to the following:
(a) the Respondent made the statements recounted by TK;
(b) the conversation with TK was akin to “locker room talk”;
(c) the Respondent’s comments were offensive and ill-advised; and
(d) the Respondent takes full responsibility for his comments.

(Mike Frisch)