An Argument Between A Client And Former Client Leads To A 30-Day Suspension

The misconduct arises from the Lawyer’s client relationships with Client A and Client B and the Lawyer’s behaviour in representing Client A. Client A is a new Canadian who immigrated to Canada roughly seven years ago. Client B is a former client of the Lawyer.

 

Client B and his girlfriend attended a restaurant in Mississauga on July 6, 2019. Client A was also at the restaurant at this time. Client B was charged criminally after Client A alleged that during a verbal argument between Client A and Client B, Client B pulled a handgun from his girlfriend’s purse and threatened Client A with it. Client B was arrested a month later and charged criminally.

 

The Lawyer had represented Client B in the past, but Client B was represented by different counsel in relation to the July 6, 2019 criminal charge.

 

The Lawyer was contacted by Client B sometime in December 2019. According to the Lawyer, Client B informed the Lawyer that the complainant in his criminal matter, Client A, needed an affidavit, presumably to recant his allegations to the police. The Lawyer contends that he advised Client B that he should not be in any form of contact with Client A.

 

The Lawyer knew that Client B was already represented by different counsel but instead of advising Client B to speak to his own counsel, the Lawyer agreed to speak to Client A. Client B advised that Client A wanted to clarify his statement given to the police.

 

The Lawyer did not inform Client B’s counsel of his conversation with Client B, nor did he tell Client B that the Lawyer needed to speak with Client B’s counsel first before proceeding with anything. The Lawyer did not have Client B’s counsel’s consent to speak to Client B in respect of his current criminal charges.

 

The Lawyer also knew that, as part of Client B’s bail conditions, Client B should not have been communicating with Client A at the time the Lawyer agreed to speak with Client A. One of the reasons a condition not to speak to witnesses is imposed on accused persons is to prevent witness tampering. The Lawyer contends that he advised Client B that Client B was not allowed to speak with any witnesses from his case, as it would have been a breach of Client B’s bail conditions, and that Client B cannot try to influence any witness in any way.

 

At the end of December 2019, Client A and the Lawyer engaged in a number of phone conversations that resulted in an in-person meeting. On December 31, 2019, the Lawyer and Client A met each other at a local Tim Horton’s. At this meeting, the Lawyer drafted an affidavit in which Client A recanted his previous statements to police regarding Client B’s possession of a handgun, indicating that he could not be sure that what he saw was actually a handgun.

 

The Lawyer was aware that Client A could be charged criminally if the Crown and/or police suspected his recantation of his previous statement was not truthful.

 

The Lawyer never obtained a waiver from Client B to tell Client A that he used to represent Client B. The Lawyer never told Client A about his former representation of Client B. The lawyer never obtained Client A’s consent to represent Client A in light of his prior representation of Client B, nor did the Lawyer recommend independent legal advice to Client A before agreeing to act for Client A. The Lawyer assumed Client A knew about the prior relationship, but never clarified this issue with Client A.

 

After the affidavit was commissioned, the Lawyer advised Client A to contact him if he was contacted by the police. The Lawyer had no further contact with Client A. The Lawyer sent the affidavit to the Assistant Crown Attorney prosecuting Client B.

 

After the affidavit was provided to the Crown, Client B reached out to the Lawyer about the affidavit. The Lawyer told Client B to get a copy of the affidavit from his own counsel. The Lawyer confirmed that he had met with Client A, who had executed an affidavit.

 

Client B’s counsel received the affidavit from the Crown as part of the Crown disclosure. Client B’s counsel was surprised upon receiving it, as he had not been told to expect the affidavit by either his client or the Lawyer.

 

 The Lawyer never informed Client B’s counsel that the Lawyer had been in contact with Client B.

 

After reviewing the affidavit, Client B’s counsel messaged Client B to tell him that the affidavit was not a very strong recantation. Client B forwarded this message to the Lawyer on January 11, 2020.

 

Later that same day, Client B and the Lawyer exchanged WhatsApp messages regarding the affidavit. A message on January 24, 2020 suggests that the Lawyer communicated with the Crown regarding the affidavit. The Lawyer never informed Client B’s counsel regarding the WhatsApp communications and did not have consent from Client B’s counsel to send messages to Client B. The Lawyer did not have Client A’s authorization to discuss the affidavit or anything else concerning Client A with Client B.

 

Although the Lawyer told Client B about his communications with the Crown regarding the affidavit, the Lawyer never told Client A about his communications with the Crown or with Client B.

 

The police later spoke with Client A about this affidavit as the police and the Crown suspected that the recantation was not truthful. Client A then recanted his recantation in the affidavit.

 

Client B has since pled guilty to a lesser offence, and Client A’s testimony was no longer required by the Crown.

 

 Criminal charges against the Lawyer were contemplated for his involvement in drafting the affidavit, but the Attorney General’s office ultimately decided not to pursue them.

 

The Lawyer later admitted to the Law Society investigator, in written representations, that upon reflection, he can see that he should not have been involved with the matter from the outset due to a potential conflict of interest and potential interference with the administration of justice. The Lawyer contends he did not have any intention to deceive anyone and was trying to serve the interests of Client A.

 

Sanction

 

We find that a 30-day suspension is warranted in this case. The scope and seriousness of the misconduct warrants a suspension. A 30-day suspension promotes general deterrence and reassures the public that such conduct is not tolerated by the profession. We ordered that this 30-day suspension commence two weeks from the date of the hearing (September 15, 2024).

 

 

(Mike Frisch)