Stolen Notes
The Quebec Disciplinary Council has imposed a one-month “disbarment” for an attorney’s conduct in an out-of-court proceeding
In this case, the respondent is found guilty of not having taken measures to dissuade his client from stealing the notes of lawyer C., representing the opposing party Y inc., during an out-of-court examination conducted by the respondent on March 26, 2018, and of leaving the premises with his client and these notes.
Lawyer C’s notes were stolen because the respondent and his client believed that lawyers C. and D. were whispering answers to witness A, whom the respondent was questioning, by writing them on the pages of the notepad.
The respondent’s client, X inc., was then in dispute with Y inc., and the questioning took place in the offices of Y inc.’s law firm. Seven people were present: a representative of X inc. (the respondent’s client), lawyer B. from that company’s litigation department, Y inc.’s in-house lawyer (witness A) assisted by lawyer C., as well as Y inc.’s representative, lawyer D., and finally, a stenographer.
Considering that the respondent’s client was being assaulted by lawyer D., who was trying to take lawyer C.’s notes in the locker room, the respondent, his client and lawyer B. from the litigation department left the premises and went to the police station to file a complaint against her.
The respondent then discovered that his client had not only taken one page of lawyer C.’s notes with some annotations by lawyer D., but also four pages of handwritten notes by lawyer C.
He quickly brings back lawyer C.’s notes to the office, but allows his client to keep the page with lawyer D.’s notes to give to the police.
On May 7, 2018, the CEO of the Y Inc. firm requested an investigation by the Office of the Syndic of the Order concerning the respondent’s behavior.
In the context of the hearing on guilt, the Council takes note of all the evidence, including the stenographic notes of the interrogation, the audio recording of the remarks exchanged, the surveillance video located at the entrance to the law office of Y inc., as well as the testimony of the respondent, his client and the numerous people present during the interrogation as well as those who intervened in the entrance hall of the law office of Y inc.
Seriousness of the conduct
the Council notes that the negative consequences of the respondent’s offence are numerous and obvious. The out-of-court examination was abruptly interrupted, affecting both parties to the civil litigation. The witness was unable to complete his examination. The notes covered by professional secrecy privilege were stolen by the respondent’s client without the latter intervening to stop this act. Lawyer C. was shocked and in tears after being manhandled by the respondent’s client, and third parties were involved, including a partner in Lawyer C.’s office and security guards. The respondent’s client also filed a complaint with the police against Lawyer D., and the stenographer expressed surprise, saying she had never experienced such an event in her practice.
Mitigation
As a mitigating factor, the Council notes that the respondent has no disciplinary history. It also notes that the respondent promptly reported lawyer C.’s personal notes. In addition, the Council takes into account the testimony of the eight colleagues, who attest that the respondent’s conduct in the exercise of his profession has always been professional and collaborative.
Sanction
In this case, in order to determine a fair and reasonable sanction according to the criteria established by the case law, the Council takes into account the high objective seriousness of the offence committed by the respondent in the exercise of his duties. It also considers that lawyers C. and D. as well as lawyer E. attempted on several occasions to reason with the respondent and to point out the illegality of his action, but that he refused to correct himself. In addition, the Council notes that the respondent had many opportunities to put an end to his client’s illegal act, to reason with him and to respect his ethical obligations, but did not seize these opportunities. It also takes into account that the notes stolen from lawyer C. were covered by the privilege of professional secrecy, the numerous and serious consequences of the offence, and the existing risk of recidivism.
In light of all of these considerations and in the particular circumstances of this present case, the Council considers that the fair and reasonable sanction to impose on the respondent is a one-month period of disbarment.
(Mike Frisch)