Unfortunate Remark
The Quebec Discipline Council found that an attorney engaged in sanctionable conduct during a civil proceeding for injunction and damages and has directed that a hearing on sanction be convened.
The complaint was brought by an opposing client involved in a dispute with Respondent’s client.
The respondent’s client is a young man who, in 2014 and at the age of 19, met and maintained a romantic, friendly and sexual relationship with the complainant more than 30 years his senior who initiated it to homosexuality.
This relationship deteriorates when the respondent’s client adopts fetishistic sexual activities and practices which fascinate him, but which considerably shock the complainant who sees them as illegal, perverse and morally reprehensible activities.
The complainant obtains pornographic photos of the respondent’s client from websites and follows his involvement in fetish groups, watches his profile on the Onlyfans site and inquires about the relationships of the respondent’s client who work in the field of pornography and/or sexual fetish parties.
The complainant is in dismay at the behavior of the respondent’s client, revolted and shocked.
The respondent’s client feels harassed and stalked by the complainant and therefore decides to mandate the respondent to initiate proceedings for injunction and damages.
The respondent’s client asks the respondent to review a book on a fetishistic sexual practice, which the respondent agrees to do. The respondent’s client includes the respondent’s name, without his professional title, in the acknowledgments of his book noting his assistance with the French revision.
The complainant is outraged that the respondent, a member of the Quebec Bar, participates in such work, and explains it in the complaint document. He also includes, in the complaint, the sentences “Birds of a feather flock together.” and “Tell me who you’re dating and I’ll tell you who you are.” », insinuating that the respondent shares the same sexual interests as his client. In the rejected counts of the complaint, he accuses the respondent of having lied to the Court of Appeal and to the assistant of a judge of the Superior Court.
The conduct at issue
He points out that on page 254, in the context of the exchanges between the respondent and the complainant’s lawyer on the amount of $125,000 claimed from the complainant by the respondent’s client, which the latter considers to be “not much”, the respondent said to the plaintiff’s lawyer: “As for me, he would have had my fist in his mouth too.
The complainant testifies that this sentence was aimed at him personally. He deplores the words used by the respondent and the violent and aggressive context. He argues that a lawyer cannot afford to treat an opposing party in this way, in any situation.
He adds that the respondent, at the end of the interrogation and after making his violent comment, apologizes to his lawyer, but knowingly refuses to present them to him:
Me Marc Michaud
Attorney for the plaintiff:
No, don’t finish. I would like to apologize for my attitude earlier. I got out…I got a little…I got a little out of control. The fist in the face story was very inappropriate. But that’s the attitude I would have if he [the respondent’s client] had been my son. But I don’t think that was necessary, so I apologize. But, I don’t apologize to the gentleman there. I apologize to my colleague .
Respondent
The respondent testified that when he made his unfortunate remarks, the interrogation came to an end after more than three hours. The respondent explains that he is tired and exhausted and that his client is feverish and anxious. He wants to intervene to reassure him. He admits: “I may have gotten a little carried away” and “I was the first to start” in the context of his exchanges with the complainant’s ex-lawyer FP.
He also adds that because of his involvement as a lawyer on file, he is the victim of sustained harassment from the complainant. He acknowledges, however, that the harassment began after the preliminary interrogation.
He provides evidence of numerous documents which, according to him, demonstrate the complainant’s relentlessness towards him and against his client. The complainant files a Request for declaration of disqualification which targets the respondent and which alleges the same reasons as the heads of the complaint, including that the respondent associates with people who promote perverse illegal practices and illegal commercial activities. This request is rejected.
The Council noted
The practice of law is difficult. That’s an understatement. It is full of situations and examples during which practicing lawyers found themselves, through their gestures, actions or words, or those of their peers, towards each other, having to take a step back in due time. , at the risk of sinking into the unacceptable and thus crossing the established and known ethical limit. It is the privilege and the duty to exercise the right vested in every lawyer, who must, at all times, maintain the honor and dignity of the profession by acting with the control and mastery expected of him in order to to prevent emotionality, irritation and exasperation from taking hold of him and leading him to transgress the ethical values of which he is the guardian and active representative on a daily basis, especially in the most acrimonious cases.
It is therefore by judging the respondent’s behavior in light of the public’s reasonable expectations regarding the professionalism that a lawyer must demonstrate that the Council concludes that he did not respect his obligations and essential duties under the terms of articles 4 and 129 of the Code of Ethics and article 59. 2 of the Professional Code .
Due to the principle of the prohibition of multiple convictions, as taught by the Supreme Court of Canada in the Kienapple decision , the conviction under section 4 of the Code of Ethics for Lawyers and Article 59.2 of the Professional Code is the subject of an order for conditional suspension of proceedings, as more fully described in the operative part of this decision.
(Mike Frisch)