A Civility Disagreement

An Appeal Panel Decision of the Alberta Law Society affirmed an incivility finding in a matter in which the attorney was representing his child over a thoughtful dissent that notes the imprecise line between a disagreeable personality and an unethical one

C. Michael Smith’s daughter lived with her husband and baby in a rented bungalow on a quiet residential street on the north side of Calgary. One day the landlords gave notice that they were going to list the property for sale. Mr. Smith acted for his family and disputed the landlords’ right to list the home and terminate the tenancy.

As the tenants’ father as well as their lawyer, Mr. Smith played an unusually active role.  When the landlord and realtor appeared, there was a standoff on Thorncliffe Drive. Mr. Smith stood firm on the front lawn and declared, “I have been practicing 40 years at the bar and I know the law, and you guys are out of luck – so get lost.” After the realtor put up a For Sale sign, Smith took matters into his own hands, by personally tearing it down.

Litigation inevitably followed. Mr. Smith was aggressive with opposing counsel, accusing him of suborning perjury by the landlords and breaching the LSA’s Code of Conduct (Code).

The landlords lodged a complaint against Mr. Smith, leading to the LSA’s investigation and an order from the Conduct Committee directing a hearing on three citations:

1)   It is alleged that C. M. Smith engaged in conduct that brings the legal profession into disrepute by removing and damaging a realtor’s lawn sign and that such conduct is deserving of sanction.

2)   It is alleged that C. M. Smith failed to act with courtesy and civility and that such conduct is deserving of sanction.

3)   It is alleged that C. M. Smith failed to respond fully and substantively to inquiries from the Law Society and that such conduct is deserving of sanction.

Respondent’s objections to the citations was rejected below

The Committee dismissed both motions. The proceeding went ahead, and in a decision on November 24, 2023 (Merits Decision), the Committee found Citations 2 and 3 had been proven – Mr. Smith failed to act with courtesy and civility with the landlord’s counsel, and he did not respond fully and completely to the LSA’s investigation. After a further hearing on April 10, 2024 (Sanction Hearing), the Committee issued its sanction decision on May 22, 2024 (Sanction Decision) delivering a reprimand, a $2,500.00 fine on each proven citation, and an award of $20,000.00 in costs, all of which was stayed pending Mr. Smith’s timely appeal of both the Merits Decision and Sanction Decision to this Appeal Panel under section 76 of the Legal Profession Act (Act)

The incivility citation was the subject of the appeal.

The emails at issue from Respondent include

I had previously only seen a tv actor in a law drama (perhaps it was really a comedy) try this routine. It is unethical to suggest you know of specifically applicable precedent when you know there is no such thing.

I look forward to receiving the case law you do intend to rely upon prior to the December 18’20 hearing. You cannot ignore the perjury. If you present perjured testimony to the Court asserting that it is reliable there will be consequences. That is specifically prohibited by the Code of Professional Conduct.

Here

The appeal is dismissed. The fines, reprimand, and costs award below are not disturbed.

Incivility

In the present case, the Committee reasonably held that Mr. Smith tried to intimidate and bully CS, finding that Mr. Smith’s tactics failed to further the public interest and the administration of justice.  The Majority disagrees with Mr. Matheson’s dissenting finding that this Citation 2 does not involve harm to a client, the public at large, or the administration of justice; efforts to bully, threaten and intimidate opposing counsel, to stall, and to interfere with the administration of justice indeed harm, and have the potential to harm, all of those parties, and serve no protected expressive rights.  The Committee recognized a lawyer’s responsibility to express himself or herself but noted that Code sections 7.2-1 and 7.2-6 make clear that there is an expectation on lawyers that communication shall not be uncivil or abusive.

Dissent of Scott Matheson 

Policing civility in the Bar is thankless work. Correspondence between counsel spans a spectrum from collegial pleasantries to bare-knuckle antagonism, along which a hearing committee must try, perhaps in vain, to draw a bright line where communication becomes unprofessional.

  And the stakes are important. A courtesy rule that’s fuzzy in definition but strict in application hurts clients and the public by hobbling forceful lawyering. It can even backfire by creating openings for bad-faith tactical complaints, where lawyers weaponize the courtesy rules against each other, wasting the LSA’s limited disciplinary resources on minor civility issues at the expense of matters with tangible harm to clients. Subjective debates about how-impolite-is-too-impolite may distract from a mandate of public protection.

In applying civility rules the law requires regulators to conduct a delicate balancing of Charter values of freedom of expression and zealous advocacy with the regulator’s mandate. Where one lawyer rudely accuses another of misconduct, that task includes considering whether the lawyer flinging the accusation had a reasonable good faith basis for thinking it was true. Robust advocacy necessarily allows room for criticism – even if it is harsh or unpleasant – when a lawyer honestly believes misconduct has occurred. Regulators must ensure sanctions apply only when the lawyer’s communication truly undermines professional integrity or public confidence – not just because we wish counsel would be nicer.

The appellant, Mr. Smith, is not an easy lawyer to get along with. His emails to opposing counsel were patronizing, pompous, and full of accusations of misconduct. But tone alone is not dispositive, and counsel should not necessarily be disciplined for mere bad manners. After all, many lawyers are annoying, aggressive, or sarcastic. Sometimes they should be.

The Appeal Panel unanimously agrees on all other issues in this appeal. Only on the second ground of appeal relating to Citation 2 do I part ways. In my respectful view the Committee did not apply the test mandated by the Supreme Court of Canada to the evidence before it. That constitutes an error in principle sufficient to render the decision unreasonable and warrant appellate intervention.

Bottom line

 Mr. Smith is rude and disagreeable. But a civility rule which sweeps so broadly as to pick up his emails goes too far at too great a risk – to chilling advocacy, discouraging potentially-legitimate reporting of misconduct by other lawyers, and taking resources away from more pressing Law Society priorities. I respectfully dissent.

(Mike Frisch)