Friday, October 18, 2019

Close Encounters Of The Opposing Party Kind

A rather remarkable bar discipline matter from  a hearing committee of the Law Society of Alberta involves (in part) issues that arose in a lawyer's defense of a client in a paternity action

Mr. Virk was retained by JK to defend him in a paternity and child support proceeding brought on by PQ. PQ was represented by another lawyer, NW. It is the events that surround this representation that sees the remaining six citations form part of our deliberations. The evidence disclosed that JK and PQ met on an online dating site set up largely for individuals to meet with each other for sexual encounters. PQ was married at the time and had an open marriage with her husband. JK and PQ met online and had a sexual encounter whereby PQ became pregnant and delivered a child in January of 2010.

PQ brought proceedings against JK asserting that he was the father.

JK engaged Mr. Virk to defend him. Collectively, they embarked upon the strategy of denial with the view to arguing that PQ was sexually promiscuous in the hope that the Court would find that someone other than JK was the father.

When the attorney encountered the plaintiff in court, she thought she knew him in the biblical sense

Early in the parentage proceedings, an application was brought by PQ and her lawyer NW for a leave to present DNA evidence on the issue of parentage. As well, there was a cross motion to set aside an ex parte child support order on the basis that parentage had not been proven. During the course of that proceeding, Mr. Virk was in Court before Mr. Justice Macklin, as was NW and PQ. Part-way through the proceeding, PQ thought that she recognized Mr. Virk and at a break in the proceedings spoke to her counsel. Her initial question was whether or not it was okay to have a lawyer who happened to know her representing the other side. Her counsel indicated that that occurs from time to time and gave an example of neighbours being known to the lawyer and the lawyer being able to act against them. PQ clarified that by "know" she meant she believed that she had a sexual relationship with Mr. Virk while she was pregnant approximately two months before the baby was born.

Following this information, NW took PQ and introduced her to Mr. Virk. At that time, PQ testified that she used words to the effect that it was nice to see him again, to which Mr. Virk responded to the effect that he had not met her previously.

After Court concluded, PQ spoke again with her lawyer and was troubled by Mr. Virk's response. She said that she had chatroom communications on the adult dating site where she had met Mr. Virk wherein he identified himself by name. There were intimate discussions leading to the first of two meetings, which in turn led to a meeting for a full sexual encounter. This information, together with information concerning the person behind the website alias “[…]” was provided to NW.

NW in turn raised the issue of the propriety of Mr. Virk acting and provided to Mr. Virk some 32 pages of chatroom transcript and other information. The transcripts included an exchange of how the two persons would identify each other. “[…]” indicated that he was brown-skinned, thus readily identified, whereas PQ stated that she was pregnant and equally thus able to be identified.

 Mr. Virk wrote to NW denying that he had previously met PQ.

As to the sex allegations

The evidence in this case with respect to whether a sexual encounter occurred between PQ and Mr. Virk is very strong and surpasses the required burden of proof. There were transcripts of a text discussion between the two - a fair reading of these materials alone strongly suggests that Mr. Virk and PQ had indeed met each other and had indeed been involved in a sexual encounter. The LSA investigators unearthed documentary evidence demonstrating that a hotel room was booked and paid for with a credit card owned by Mr. Virk, which is also not now disputed by Mr. Virk, although he had previously denied having this credit card. At the hearing, Mr. Virk did not dispute PQ’s testimony, which was clear and unequivocal about the encounter. The Committee is satisfied that the encounter occurred, at the time and place PQ testified to, as supported by the abundant documentary evidence provided...

Mr. Virk asserts in his testimony and in the argument made on his behalf, that at the time that he made the statements that he had not met PQ prior to the litigation or otherwise failed to disclose differently to his client, he simply had no memory of ever having met PQ. In short, the argument at the hearing seems to be that as he didn't remember her, therefore any false statements he made about not having met her were not knowingly made.

The evidence following the first meeting at the courthouse belie this assertion. In the confines of the courthouse, Mr. Virk might not have recognized PQ as someone he had met before. However, the letter from PQ's lawyer, NW, attaching documented information concerning their relationship, disclosure of their meetings, the fact that she was noticeably pregnant at the time of the encounter, identifying himself by name in "chat" conversation, and identifying himself as associated with "[…]", and describing himself as "brown" makes Mr. Virk's denial to NW not believable. Similarly, having been armed with that information from NW, the non-disclosure of the fact of the relationship to JK is not believable.

We are also mindful that Mr. Virk's past denials were outright denials. It is not that he said he did not remember, he said the relationship did not happen. These denials continued with the LSA. Even after being pressed in his questioning by the LSA investigators with information to the contrary, the outright denial was maintained. He denied having the credit card that was ultimately found to have been in his name and applied for by him. In short, we do not accept that Mr. Virk’s statements were made as a result of his lacking memory of having met with PQ. We believe they were intentional lies.

Our reasons for disbelieving Mr. Virk on this point are further bolstered by the evidence of his refusal to be further interviewed after having been provided with documentary evidence indicating that his previous answers were indeed false. As a consequence, we are satisfied that Citation 2, that Mr. Virk had failed to be candid with his client JK, is made out and is deserving of sanction.

A hearing will be scheduled to consider sanctions. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/10/a-rather-remarkable-bar-discipline-matter-from-the-law-society-of-alberta-involves-in-part-issues-that-arose-in-a-lawyers-d.html

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