Reprimand For "Reprehensible" Statement

An attorney with no prior discipline had been reprimanded by the Ontario Law Society Tribunal Hearing Division for a statement in an affidavit.

The statement

We have already found that the Lawyer engaged in professional misconduct as alleged when he swore an affidavit in a civil action referring to a 14-year-old girl as “a sexually mature young woman, not a ‘child’ as conventionally understood”: 2024 ONLSTH 29. The action involved alleged sexual abuse of a girl by a foster father while she was in a foster home.

The lawyer had a lengthy blemish-free career

The Lawyer co‑operated with the Law Society investigation. After we released our reasons and before the penalty hearing, the Lawyer completed Continuing Professional Development programs addressing sexual assault myths and professionalism in litigation generally. This demonstrates a willingness to ameliorate or rehabilitate behaviour. These are mitigating factors.

The Lawyer provided character references from senior, male colleagues, who highlighted the Lawyer’s devotion to clients and the diligent pursuit of his clients’ interests. That evidence is relevant to the Lawyer’s conduct in this case, which harmed his client. It suggests that his action was out of character as far as it relates to representing his clients’ interests. Given that the misconduct also impacted opposing counsel and the plaintiff, it would have been more persuasive to receive character references from opposing counsel who could speak to his conduct in other litigation. There was one such letter from a colleague who stated the civil and courteous manner in which the Lawyer interacted with litigants. It would have been preferable to have included at least one reference from a female colleague to speak about the Lawyer’s awareness or understanding of sexist stereotypes. On balance, the character reference letters have a limited mitigating effect on our decision.

We note that the Lawyer maintained throughout the investigation and hearing that the admitted facts did not constitute misconduct. Although the Lawyer acknowledged at the hearing that his statement was ill-advised, he did not appear to appreciate the impact that his actions would have on his client and the plaintiff or her counsel. There was no evidence that the Lawyer offered an apology to opposing counsel or to the plaintiff. As the Lawyer is entitled to defend his conduct, not admitting misconduct is not an aggravating factor. The Lawyer’s acknowledgement that he had acted poorly is mitigating, even though he did not admit misconduct. However, there is no acknowledgment or apparent insight with respect to the effect on the plaintiff and opposing counsel. While not aggravating, there is no mitigation in this regard.

Analysis of misconduct

The Lawyer’s statement was reprehensible and worthy of condemnation. We are satisfied that the Lawyer now understands his statement was an act of professional misconduct and a breach of his professional obligations.  He has been reprimanded by us and publicly chastised. This matter received media attention shortly following the time that the statement was made. The Lawyer’s statement was subject to public scrutiny. He was publicly rebuked by his client. The panel’s finding of misconduct was also more recently the subject of media attention. While we do not suggest that media attention obviates the need for a sanction for misconduct, we are mindful that the Lawyer’s behaviour has been publicly scrutinized. We are satisfied that as a result of these proceedings and public scrutiny of the Lawyer’s actions, specific deterrence has been satisfied.

Sanction

The Lawyer has a long unblemished record and we do not believe that there is a risk of further misconduct. The effect of media scrutiny appears to have been significant. The Lawyer’s retainer was terminated by his client. The Lawyer has proactively undertaken relevant professional development.

 However, we wish to be clear that we consider a reprimand to be at the low end of the penalty spectrum for a case such as this. A suspension should be the norm for cases in which there has been a comparable failure to act honourably and with integrity in the defence of alleged sexual abuse. But for the joint proposal, we would have ordered a suspension.

 

(Mike Frisch)