Accusations Lead To Misconduct Findings

The Ontario Law Society Tribunal Hearing Panel found that an attorney has engaged in misconduct 

From May 2017 until December 2017, while representing his employer, Mr. Murphy repeatedly accused KE and his staff of fabricating the misfiling of the notice of intent to defend. He accused KE of fraud and of conspiring with his staff and his process server in respect of the misfiling. Mr. Murphy made these accusations to KE, to his former law partner, and to the Superior Court of Justice in his submissions for costs in the motion heard before Master Wiebe. The Law Society submits that Mr. Murphy failed to act with honour and integrity while representing his employer and failed to be courteous, civil and act in good faith towards KE.

it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted.

This standard, however, is not a subjective one. There can be no reasonable factual foundation for allegations if a lawyer either knew that the allegations were unfounded or demonstrated a wilful or reckless disregard for the facts: Law Society of Ontario v. Fuhgeh, 2020 ONLSTH 75 at para. 170.

In our view, there was no reasonable factual foundation for Mr. Murphy’s allegations that KE and his staff fabricated evidence. His allegations were speculative, without reasonable basis, and solely intended to deflect from his own failure to respond to the statement of claim in time and having to bring a motion to set aside the noting in default.

Evidence refuting the allegations

• A copy of the misfiled notice of intent to defend and the fact that it had the same court file number except for one digit.

• The fact that the process server was unable to successfully note the defendant in default during her first attendance at the court office to do so.

• The letter from Mr. D., Mr. B.’s supervisor, stating that a misfiling could have happened and that Mr. B.’s information was the result of a computer check, which would not have shown the misfiling in the physical file.

• The affidavit of the process server detailing what had occurred, including her attendance at the court office, the individuals she spoke with and how the misfiling was corrected.

Most significantly, Mr. Murphy’s allegations against KE were not brought in good faith. He did not respond to KE’s letter of April 13, 2017 in which KE consented to moving aside the noting in default because of the filed notice of intent to defend. Mr. Murphy knew that he had not filed a notice of intent to defend. Yet, he did not correct KE’s erroneous belief that a notice of intent to defend had been filed. He wanted to hold KE to his consent to setting aside the noting in default and ignore the reason why KE was so consenting. It was to Mr. Murphy’s advantage to have KE continue to erroneously believe that a notice of intent to defend had been filed to avoid the embarrassment of having to move to set aside the noting in default.

Ultimately, there was no reasonable basis for KE to have fabricated evidence of a filing error just to rescind his professional courtesy to set aside the noting in default.

Not only were the allegations unfounded but Mr. Murphy’s communications were abusive, offensive, and threatening, rather than courteous, civil, and made in good faith. Referencing an ethical issue, he wrote to KE that he would report him. He threatened to report KE to the Law Society in addition to “contempt of court” proceedings. He left KE voicemail messages in which he gave him a chance to “purge” his contempt.

Mr. Murphy also did not limit his accusation to KE. He contacted the process server company and accused the process server of lying and of planting the notice of intent to defend. He sought to involve KE’s former law partner to try and get him to influence KE to protect KE’s reputation. Mr. Murphy maintained his allegation of evidence fabrication during the motion before Master Wiebe.

The Law Society alleged that Mr. Murphy also accused court staff of conspiring with KE. Mr. Murphy denied this allegation. He clarified that he only accused KE of duping court staff rather than conspiring with court staff. We agree that at least during the period leading up to December 2017, Mr. Murphy did not accuse court staff of any fraudulent activity.

Allegations against paralegal at the firm of opposing counsel

Mr. Murphy’s conduct and communications with CA were especially egregious. After the Civil Matter had concluded, he contacted CA at her new place of employment. Mr. Murphy had absolutely no evidence for his accusations against CA. CA had simply been the commissioner of affidavits sworn by KE and another member of his staff in the defence of the costs motion. There was no evidence that CA was involved in the Civil Matter other than to commission affidavits. There was no evidence that she prepared the affidavits and certainly no evidence that she fabricated evidence. However, Mr. Murphy accused her of perjury, asked that she surrender to law enforcement and wrote that she could be sentenced. He continued writing to her after the cease-and-desist letter of July 2, 2020, going so far as contacting her supervisor at her new place of employment.

A penalty hearing will follow. (Mike Frisch)