Class Action
The Quebec Bar Disciplinary Board rejected an offer of expert testimony sought by an accused attorney in a complaint against him brought by class action clients
He wishes to have this lawyer heard as an expert in matters of collective action, in connection with counts 2 and 3 of the complaint. The summary of his testimony announces that he plans to briefly explain the procedural path of this type of file and, in particular, the request for authorization and the conditions of authorization provided for in the Code of Civil Procedure ( CPC ) as well as the notions of “member” and “representative”, their roles and that of the court in such proceedings.
The complaint
The complaint of January 5, 2023 is worded as follows:
1° In Montreal, on or around March 15, 2022, contravened his obligations to act with honor, dignity, integrity, respect, moderation and courtesy during a videoconference call with his clients, Mr. A, Mrs. B and Mr. C, plaintiff-representatives, in the context of the class action in the Superior Court, bearing number […], by uttering the following words to his clients:
“ If you’re so fucking scared, put your house under your husband’s name ”
“ Fucking chicken ”
“ I don’t fucking need you ”
“ You are fucking wasting my time!” You want out?? Get the fuck out . ”
thus contravening article 4 of the Code of ethics of lawyers and article 59.2 of the Professional Code ;
2° In Montreal, on or around April 27, 2022, contravened his obligations of integrity and loyalty, by acting without warrant, when he filed a procedure entitled “ Amended Application for authorization to institute a class action, to obtain the status of representatives and injunction ” aimed in particular at replacing his clients, Mr. A, Mrs. B and Mr. C, as plaintiff-representatives, in the context of the class action in the Superior Court, bearing the number […] and this without their consent, despite the fact that they informed him previously on the same day of their intention to revoke his mandate, thus contravening article 20 of the Code of ethics of lawyers and article 59.2 of the Professional Code ;
3° In Montreal, on or around June 8, 2022, filed a procedure entitled “ Application for Judicial Review ” with the Administrative Tribunal of Quebec in the file bearing number SAE-M-[…], as part of the action collective action in the Superior Court, bearing the number […], containing a false allegation to the effect that Mr. A, Mrs. B and Mr. C had been replaced, as representative plaintiffs, by Mrs. D and her dachshund dogs, and this despite the fact that the request to replace the plaintiffs-representatives of the class action was not granted by the Superior Court on April 27, 2022, thus contravening article 19 of the Code of ethics of lawyers and article 59.2 of the Professional Code ;
Thus making itself liable to the sanctions provided for in article 156 of the Professional Code…
Respondent sought to offer expert testimony
He wishes to have this lawyer heard as an expert in matters of collective action, in connection with counts 2 and 3 of the complaint. The summary of his testimony announces that he plans to briefly explain the procedural path of this type of file and, in particular, the request for authorization and the conditions of authorization provided for in the Code of Civil Procedure ( CPC ) as well as the notions of “member” and “representative”, their roles and that of the court in such proceedings.
Rejected
In this case, the inadmissibility of the testimony announced by the complainant when disclosing the summary is obvious. Indeed, the summary of conclusions appearing in the summary of the expert’s testimony aims to explain notions of domestic law. In addition, each of the questions announced by the plaintiff in this summary is intended to allow the witness to explain different terms appearing in the specific rules provided for in the chapter of collective actions in the Code of Civil Procedure of Quebec . The complainant specifies that his witness will not produce any documents. He recognizes that the objective he pursues is to “identify the legal framework for collective action. »
The Council judges that it must intervene now; otherwise, the respondent will find himself in the situation denounced in the Parizeau judgment , namely being faced with possibly retaining the services of an expert on questions of domestic law, while it is prohibited to submit evidence concerning the law internal and in particular to have expert witnesses heard on this subject
(Mike Frisch)