A Hearing Committee Report of the Alberta Law Society reprimanded an attorney

As noted, the parties presented the Admission to the Committee which was marked as Exhibit 9. In summary, the Admission (as supplemented by the joint submissions of the parties) established the following essential facts:

1)   In August of 2020, a client of Mr. MacDonald commenced a proceeding in the Court of King’s Bench against his former partner (Complainant). The Complainant retained counsel and filed a statement of defence in September of 2020.

2)   In December of 2020, Mr. MacDonald served his client’s affidavit of records as required by the Rules of Court, along with the producible documents identified in it, on the Complainant’s lawyer. One of the producible records identified in the affidavit of records and provided to the Complainant’s counsel was a photograph which depicted Mr. MacDonald’s client, the Complainant, and a friend of the Complainant (Photograph). In the photograph, the Complainant was partially nude.

3)   Counsel for the Complainant strongly objected to the inclusion of the photograph and raised the issue with Mr. MacDonald. Mr. MacDonald initially defended his decision to include the Photograph, stating that it was relevant and material to an issue in the ongoing action which had been raised in an affidavit filed by the Complainant in a separate proceeding. Specifically, Mr. MacDonald noted that the Complainant alleged that she had been sexually assaulted by his client on November 3, 2019; his client advised him that the Photograph had been taken on the same day, and that such a Photograph therefore served to “contradict [the Complainant’s] evidence that she was raped that day by my [his], and calls into question [the Complainant’s] allegations of physical and sexual abuse”. Mr. MacDonald pointed out to opposing counsel that it was not distributed publicly and had been provided to her as legal counsel only.

4)   In March of 2021, Mr. MacDonald agreed to remove the Photograph from the affidavit of records while serving the right to seek a ruling on its relevance and materiality from the Court.

Reasons

Counsel for Mr. MacDonald agreed with the submissions made by the LSA. Mr. Hepner indicated that he and counsel for the LSA had discussed the matter at length, and that he had also had several discussions with Mr. MacDonald about these issues. He indicated that Mr. MacDonald had an honestly held, subjective belief that the Photograph was relevant and material to the issues in the action because it called into question the allegation made by the Complainant that she had been sexually assaulted by Mr. MacDonald’s client. Mr. Hepner stated that in this respect, Mr. MacDonald’s understanding was not legally sound, and that there were other ways in which Mr. MacDonald could have addressed the issue relating to disclosure even if the Photograph was relevant and material. 

Sanction

 the Committee imposes a reprimand on Mr. MacDonald in the form set out above and orders that he pay the sum of $1,500.00 in costs to the LSA by no later than July 31, 2025.

(Mike Frisch)