Below The Belt

The Manitoba Law Society has imposed a six-month suspension of an attorney for a physical altercation with an articling student

The first count of professional misconduct related to an incident between the member and his former articling student where the member punched the student in the groin. The member entered a guilty plea with respect to the first count. The Society entered a stay of proceedings on the second count.

Facts

The incident that gave rise to the charge is described in the Statement of Agreed Facts as follows:

David Davis operates a sole practitioner legal practice in Winnipeg, Manitoba. In the past, he has employed an articling student, for whom he has served as principal.

One such student began his articles in June, and approximately mid-way through his articles in December, Mr. Davis physically assaulted him.

The student and Mr. Davis were situated in Mr. Davis’ office, with Mr. Davis seated at his desk and the student standing beside him. They had been on a phone call with the federal court registry regarding a file the articling student had been assisting on to determine whether particular documents had or had not been filed with the Court. They were both observing Mr. Davis’s computer during the call.

Mr. Davis confirmed that the material had in fact been filed. While the call was ongoing, Mr. Davis turned to the student and punched him one time. The strike landed on the student’s groin area. The student doubled over in pain, shouted at Mr. Davis and left the office.

Three priors

The first was decided in 2001 and related to events that took place in 1999 and 2000. The member pled guilty to conduct unbecoming for sexually harassing his client by making unwelcome comments and overtures of a sexual nature to her. The client had retained the member to represent her in her application for refugee status. The basis of the application included that the client was facing sexual harassment from her former employer in her country of origin. The member was suspended for 45 days and ordered to pay $1,000 in costs.

The second was decided in 2008 and related to events that took place in 2005. The member pled guilty to professional misconduct in connection with his failure to correct an administrative error which resulted in numerous breaches of trust account obligations. The member was reprimanded and ordered to pay $2,500 in costs.

 The third was decided in 2009 and related to events that took place between 2003 and 2007. The member pled guilty to professional misconduct. The charges related to paying a referral fee to a non-lawyer and charging the fee to the client as a disbursement for translation. The charges also related to the member’s conduct in relation to two clients who had hired him in connection with their immigration applications under a live in caregiver program. The member broke or knowingly had the clients break certain rules of the live in caregiver program. These included the clients working when they were not authorized to do so, including as arranged by the member or the member’s wife, and the member not complying with the rules regarding the live in caregiver program regarding overtime and room and board charges when they were in his direct employ as live-in nannies. The member was suspended for six months and ordered to pay $25,000 in costs. The reasons of the Panel that considered the 2009 matter before the Society noted that the member’s conduct shows a “…propensity to take advantage of a client for his own benefit…”

Sending a message

 A strong message needs to be sent to students seeking to join the profession that conduct of the type the member engaged in will not be tolerated. Students are required to engage in the principal and student relationship as a precursor to membership. Law students, articling students and other people in the employ of a lawyer must be safe from physical harm in their workplaces. Members have a responsibility to interact with other members of the profession honourably and with integrity in accordance with Rule 2.1-1 of the Code. There is little more fundamental to treating one another honourably and with integrity then respecting one another’s bodily integrity. Violent and assaultive behaviours on other members or on students or other persons under a lawyers’ employ will not be tolerated.

Sanction

Given the length of time that had passed since the last discipline was imposed, and there being no recommendation for any greater period of suspension, the Panel found that a six-month suspension is appropriate. The suspension, coupled with the other sanctions that were jointly recommended, would appropriately serve as a deterrent to the member against future misconduct, as well as a warning to the profession that conduct of this nature will not be tolerated, and is a suspension that is otherwise in the public interest.

 In recognition of the fact that the member, who is a sole practitioner, may need some time to arrange his affairs, the Panel is not imposing a start date for the period of suspension. This way the member and the Society can have ample opportunity to sort out how best to have the member’s client’s interests continue to be served during the member’s suspension.

(Mike Frisch)