Meant As A Compliment

The Ontario Law Society Tribunal Hearing Division has found misconduct by an attorney who has practiced for 41 years

Hooker comments

The Licensee made references to “hookers” in front of three of his female employees, who worked as clerks and assistants. Two of these employees interpreted the Licensee’s comments to mean that he was speaking about sexual encounters with sex trade workers, which made them feel uncomfortable.

The Licensee explained that he represented many clients who were sex trade workers during his career. He used the word “hooker”, or its plural, in reference to client matters. He now understands, however, that the term “hooker” was unprofessional, disrespectful and may have made his employees uncomfortable.

Physical appearence comments

The Licensee made comments to and in front of his female receptionist about her physical appearance. The Licensee made comments to clients about his receptionist’s clothes and asked clients, “Doesn’t my receptionist look good?”

The Licensee also commented on the receptionist’s age and told her he could not believe how young she looked. The receptionist interpreted these comments to have a sexual connotation, which made her feel uncomfortable. She quit her employment after three months because of the Licensee’s behaviour.

The Licensee denies that he intended there to be a sexual connotation to any of his comments. While he intended his comments to be complimentary and to raise his employee’s morale, he now understands that his comments are not acceptable.

Email about post office workers

Two of the Licensee’s female employees, a family law clerk and an executive assistant, had unsuccessfully tried to retrieve an important package from the post office. Both employees attended the post office on several occasions with no success. They enlisted the assistance of the Licensee. One of the employees used the expression “fucking bitches” to describe the post office employees.

After a telephone encounter with a post office employee about their policy relating to the release of packages to staff, the Licensee sent the following e‑mail to the two employees who had unsuccessfully attempted to retrieve the package:

I shouted at both these bitches but it didn’t do any good, when you get back just scribble unauthorized on this idiot letter and put the company stamp on it and then you have to go back, unfortunately. Sadly, we will have to do this next time too. A little bit of power going to the head of people on minimum wage. She tried to return she was the Post Office official but I eventually got it out of her that she is employed by the pharmacy.

While neither employee told the Licensee that they had a problem with him using the word “bitches,” the License acknowledges that as the employer, he should not use expletives, gendered or otherwise, to describe women (or anyone else) to employees who are subordinate to him.

Misconduct was also found in email communications with a client

  In deciding whether the e-mails amount to professional misconduct, we have considered whether they amount to a potent display of disrespect beyond mere rudeness or discourtesy considering the context and the factual circumstances of this case.

We rely on the fact that the communications were e-mail communications sent to a very vulnerable client and members of her family. The immigration sponsorship application occurred while the client was pregnant and suffering from serious pregnancy complications necessitating her hospitalization. The Licensee’s e-mails to the client and members of her family occurred after the client had given birth and nearly lost her life in the process. After delivering the baby, she had ongoing health issues necessitating an extended hospital stay followed by home care. Her father, who assumed responsibility over the fee dispute, was also experiencing significant stressors with respect to not only the client, but also his other adult child.

 

 The problematic communications were written e-mails the Licensee addressed to his client, not oral arguments made on the fly during a judicial proceeding while trying to respond to an opposing argument. The Licensee had time to craft a professional communication.

 

Given these factual circumstances and context, we find that the Licensee’s three e-mails at issue, when viewed as a whole, rise to the level of a potent display of disrespect beyond mere rudeness or discourtesy. We rely on the following statements made in his communications in support of our conclusion:

•           The Licensee’s exaggerated descriptions of the client’s communications to his firm as “a lot of unjustified rude emails” (January 29, 2018), a “torrent of abuse… time after time” and “emails that made me shudder” (March 19, 2018). While the client and her husband complained on a very limited number of occasions about the quality of service and the time things were taking, such e-mails can reasonably be expected from an unsophisticated client dealing with life crises who is exasperated by the length of time a legal process is taking. They do not amount to a lot of rude e-mails that make one shudder, or to a torrent of abuse.

•           The Licensee’s accusation that the client was at fault: “[The employee] worked very efficiently to sort out the mess you created by making plans without going thro[ugh] the procedures then expecting government to change the drill for you” (January 29, 2018). Even if the client had made mistakes, referring to a “mess” and her expectation that the government “change the drill” for her was unprofessional.

•           The Licensee’s accusation, without any evidence in support, that the client’s income was paid in cash: “[The employee] was advised of a large income from housecleaning, which I presume was paid in cash” (March 19, 2018).

•           The Licensee’s statement to the client’s father that the client and her husband should not “feel that they can continue to rub our faces in the dirt by getting away without paying” (March 19, 2018).

•           The Licensee’s personal attacks on the client’s father in his e-mail of April 26, 2018, which went beyond responding to the father’s allegation that the Licensee had forged a signature, and instead, attacked the father personally: “you bragged of your senior level business experience”… “I was therefore somewhat surprised to glean that you had not come to settle the matter in a sensible fashion, but wish to indulge yourself some sort of project”… “I am not sure if you are ill or not”… “your rude and bizarre behavior.”

In our view, when considered as a whole, the above communications amount to a potent display of disrespect beyond mere rudeness or discourtesy and are thus inconsistent with the proper tone of a professional communication from a lawyer contrary to Rule 7.2-4.

 

Given our finding that the communications meet the Doré test of a potent display of disrespect beyond mere rudeness or discourtesy, it is not necessary for us to consider the Law Society’s submission that the test under Rule 7.2-4, which focuses on communications, is less stringent (something less than a potent display of disrespect) than the test under Rule 7.2-1, which deals with incivility more generally, to which the Doré test applies.

The matter will be set for a sanction hearing. (Mike Frisch)