Thursday, November 30, 2017

A Fine[d] Intemperance In British Columbia

The Law Society of British Columbia fined an intemperate attorney

The Respondent faces a citation that alleges that the Respondent was involved in a verbal altercation with opposing counsel in Provincial Court.  The citation alleges that the Respondent breached his duty to maintain a courteous and respectful attitude towards the court, as described in Rules 2.1-2(a) and 5.1-1 of the Code of Professional Conduct, and failed to conduct himself with courtesy and civility towards other counsel, as described in Rules 2.1-4 and 5.1-5 of the Code of Professional Conduct.

The Law Society and the Respondent submitted an Agreed Statement of Facts, and we had the benefit of video and audio recordings, as well as a transcript of proceedings of the alleged altercation. 

The facts in respect of the events that led to the citation are not in dispute.  The Respondent and opposing counsel attended a Family Case Conference with their clients in person, and a judge of the court attended via video and audio connection.  A few minutes into the proceedings, the Respondent and opposing counsel began arguing and talking over one another, and opposing counsel asked the Respondent, “Could you shut up?”  The Respondent reacted by getting out of his chair and approaching opposing counsel, standing over him, saying, “You shut up yourself.  You shut up.  Don’t tell me to do anything back and forth like this.  I won’t put up with this.  Who the hell do you think you are anyway?”  The presiding judge was eventually able to shout over the exchange between the Respondent and opposing counsel, shouting “Counsel.  Counsel.  What are you doing?  What are you doing?”, ending that exchange.  The heated exchange between the Respondent and opposing counsel took only a few seconds.

Later that same day, the Respondent forwarded a letter to court staff apologizing for his part in the “disgraceful display” in proceedings earlier that day, and asking that the letter be passed through appropriate channels to the presiding judge.

That same day, the Respondent also forwarded a letter to opposing counsel, suggesting that they should not be behaving as they did in court earlier, and should agree that what took place will not happen again, but also saying “if you continue to insult me and my clients, I am going to stand up for them.” 

The Respondent, in the hearing before us, said he has thought about his role as senior counsel, and his responsibility to set a good example for more junior counsel.  The Respondent also said that he has taken active steps to improve his relationship with opposing counsel and their relationship is now better than it has ever been in the past.

The Respondent admitted service of the citation.  He admitted that his conduct alleged in the citation constitutes professional misconduct.

Finding

The conduct alleged and admitted to by the Respondent is a marked departure from what is expected by the Law Society of lawyers.  The conduct alleged and admitted to falls short of what would reasonably be expected by a member of the public, or by a court staff member or judicial officer.  We find the Respondent’s conduct constitutes professional misconduct.

On sanction

 The Respondent has been practising law in British Columbia since 1980.  He has a Professional Conduct Record that includes four conduct reviews, one proven citation, and a referral to the Practice Standards Committee.  In the proceedings involving the citation, the Respondent was found to have committed professional misconduct by making inappropriate comments about another lawyer and members of the judiciary in a series of letters.  In those proceedings, the Respondent was fined $3,000.  Intemperate and inflammatory language, and an unnecessarily combative and aggressive approach to conflict, form a recurring part of the subject matter of the Respondent’s Professional Conduct Record. 

Counsel for the Law Society submits that the Respondent be fined $10,000.  The Respondent submits that the local attention this matter has received and will receive in his community, as well as the cost of his having to travel to deal with this matter, are significant to him, and an additional fine will be of no public benefit.  The Respondent submits that he should receive a reprimand as the disciplinary action for his conduct in this matter...

In consideration of the factors listed above, the Respondent’s misconduct, although significant, was a brief exchange with opposing counsel.  The Respondent recognized the inappropriateness of his misconduct, apologized to the court quickly, and took responsibility for his misconduct.  He has taken active steps to improve his relationship with opposing counsel. 

The Respondent has, in previous discipline proceedings, been fined $3,000 for making inappropriate remarks about other counsel and members of the judiciary in a series of letters.  The disciplinary sanction must be significant and must take into account the Respondent’s Professional Conduct Record, but the sanction must also be proportionate.  No physical contact between the Respondent and opposing counsel occurred, and counsel stopped their exchange when the presiding judge raised his voice over an audio connection.  The court proceedings in which the exchange occurred were a Family Case Conference, which was not open to the public. 

In the circumstances, we believe a fine is the most appropriate disciplinary action we can impose.  We consider $5,000 to be an appropriate amount for the fine, in all the circumstances.  We order that the Respondent pay the fine by December 31, 2017.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/11/the-law-society-the-respondent-faces-a-citation-that-alleges-that-the-respondent-was-involved-in-a-verbal-altercation-with-o.html

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