{Please note that the Rule discussed in this blog has been amended. My blog post on the amendments can be found here}
In my career I have been fortunate to work and interact with lawyers who are courteous, friendly, intelligent, civil, and formidable opponents. Most lawyers will promptly return my phone calls or emails, consent to requests for adjournments or extensions for filing defences (when appropriate), and use polite language, even in the most heated of arguments.
I have only dealt with a handful of “unprofessional” lawyers. Some lawyers simply refuse to respond to emails, letters, or phone calls. Others think that profanity, derogatory remarks, or excessive yelling helps their argument. Once, when a judge asked opposing counsel why he had not responded to my multiple requests for document disclosure he answered, “Well, I don’t know, I guess sometimes I am just a real bum-hole.” He did not use the word bum. When I witness this behaviour I may complain to a colleague or my husband and think: “Someone ought to report this person to the Law Society”. Then I move on to the next client or the next file and forget about these lawyers and their questionable behaviour.
However, when the newly amended Rules of Professional Conduct (the “Rules”) became effective on October 1, 2014, I reread them in their entirety and was reminded of my mandatory duty to report misconduct. This made me think: Am I under a duty to report this type of uncivil or unprofessional behaviour to the Law Society of Upper Canada (“LSUC”)?
Rule 7.1-3
The new Rules are based on the Federation of Law Societies of Canada’s (“FLSC”) Model Code of Conduct. Rule 7.1-3 (which was old rule 6.01(3)) states:
A lawyer shall report to the Law Society, unless to do so would be unlawful or would involve a breach of solicitor-client privilege,
a) the misappropriation or misapplication of trust monies;
b) the abandonment of a law or legal services practice;
c) participating in serious criminal activity related to a licensee's practice;
d) the mental instability of a licensee of such a serious nature that the licensee's clients are likely to be materially prejudiced;
e) [FLSC not in use]
f) any other situation where a licensee's clients are likely to be severely prejudiced [emphasis added]
Interestingly, the LSUC chose not to implement section (e) of the FLSC’s Model Code which states: “conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer”. Perhaps the LSUC chose not to adopt this section as the wording is very broad and could open the floodgates for potential reports of misconduct.
So, what situations will give rise to a duty to report? The first three scenarios under Rule 7.1-3 seem straightforward and fairly easy to identify. If you are aware of a lawyer who has stolen trust funds, abandoned his or her law practice, or participated in serious criminal activity related to his or her law practice, it is clear that you have a duty to report such behaviour to the LSUC.
However, the scenarios in subsections (d) and (f) raise some questions. Am I qualified to determine whether a fellow lawyer is mentally unstable? Or, am I able to determine if any such mental instability will “materially prejudice” a client? Also, what type of behaviour would fall into the ‘catch-all’ provision of “any other situation” where a client is “likely to be severely prejudiced”?
What is my duty?
Curious about my duty to report, I called the Practice Management Helpline at the LSUC. When I introduced myself as a lawyer writing on this topic I was asked for my LSUC number and advised that the LSUC would not respond to questions about hypothetical situations. So I used real examples from the past and asked for guidance on section (f): my duty to report “any other situation” where a lawyer’s clients “are likely to be severely prejudiced”. The individual I spoke with would not/could not provide me with a clear answer on the examples I provided. Nonetheless, she did parse the sentence for me and suggested that the use of the words “likely to be severely prejudiced” means that the Rule only applies to future client prejudice and not prejudice that has already occurred. In other words, if I am in a situation where I know a lawyer’s client is going to be severely prejudiced due to the lawyer’s actions I must step in and report the conduct to the LSUC, but if the client has already been severely prejudiced then I have no duty to report. This does not make sense to me and I question this interpretation of the Rule.
When I asked if there were any guidelines to help me understand my duty to report I was told that there was only the Commentary to Rule 7.1-3 which states, in part:
Unless a licensee who departs from proper professional conduct is checked at an early stage, loss or damage to clients or others may ensue. Evidence of minor breaches may, on investigation, disclose a more serious situation or may indicate the commencement of a course of conduct that may lead to serious breaches in the future. It is, therefore, proper (unless it is privileged or otherwise unlawful) for a lawyer to report to the Law Society any instance involving a breach of these rules or the rules governing paralegals. If a lawyer is in any doubt whether a report should be made, the lawyer should consider seeking the advice of the Law Society directly or indirectly (e.g. through another lawyer).[emphasis added]
Contrary to the actual Rule, which according to the Practice Management Help Line seems to promote a very narrow interpretation of when there is a duty to report misconduct, the Commentary suggests a much broader duty, or at least an opportunity, for a lawyer to report any breach of the Rules as a whole. In other words, if I am aware of a lawyer who breaches her duty to conduct herself honestly and with integrity, civility, courtesy and good faith,[1] it would be appropriate for me to report such conduct. But, if I am also aware that this conduct will likely severely prejudice that lawyer’s clients, it is not only appropriate for me to report such conduct, I am obligated to do so.
I could not find any LSUC disciplinary decisions that dealt directly with the “Duty to Report Misconduct” Rule 7.1-3 (or its predecessor 6.01(3)), or guidance for the thresholds of “materially” or “severely” prejudiced in this context. However, The Law Society of Upper Canada v. Groia [2] provides some guidance on ‘incivility’ in the profession and examples of the type of behaviour that will amount to professional misconduct in courtroom proceedings:
“In this case, the conduct which is alleged to have ‘crossed the line’ is not mere rudeness, let alone bad manners. Nor is it simply excess rhetoric or sarcastic remarks about opposing counsel.”[3]
“Nevertheless, taken as a whole, many of the comments he made crossed the line: they included repeated personal attacks on the integrity of the prosecutors and repeated allegations of deliberate prosecutorial wrongdoing that did not have a reasonable basis and were not otherwise justified by the context.”[4]
“In our view, determining when uncivil courtroom communication ‘crosses the line’ is, therefore, fundamentally contextual and fact-specific.”[5]
“In assessing the context of courtroom communications, it will be important to consider the dynamics, complexity and particular burdens and stakes of the trial . . . a few ill- chosen words or sarcastic or even nasty comments directed at one’s opponent may not constitute professional misconduct justifying a discipline proceeding, particularly if they reflect a moment of ill-temper and an apology is made. . .”[6]
“In our view, it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel unless they are both made in good faith and have a reasonable basis. A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel.”[7]
Therefore, while the determination of professional misconduct is very fact and context specific, it must be more than ill-chosen words or sarcastic and nasty comments. Nevertheless, repeated personal attacks on the integrity of other lawyers, and deliberate allegations of prosecutorial wrongdoing were enough in the context of this case to make a finding of professional misconduct.
Will You Report?
Reporting a fellow lawyer for breaching the Rules may result in serious ramifications for that lawyer. However, not reporting misconduct could result in even more serious consequences for that lawyer’s clients if the conduct prejudices their case and legal rights.
If the potential misconduct you witness is a result of a colleague or friend struggling with mental or emotional trouble, or drug or alcohol abuse, approaching that individual may be the best first step. You can remind them about the confidential counselling service provided by the LSUC and run by Homewood Human Solutions.
While most lawyers would be hesitant to report another lawyer, we must remember that we may not have a choice. The best suggestion to deal with any hesitancy is perhaps to call the Law Society’s Practice Management helpline and hopefully they can provide you with some guidance on your specific situation. However, burying our heads in the sand and simply ignoring the misconduct of a fellow lawyer could result in worse implications for that lawyer, the public, and the profession as a whole.
Please note that posts on this blog do not constitute legal advice and are for informational purposes only.
[1] See Rules 2.1-1 and 5.1-5.
[2] 2013 ONLSAP 41 (“Groia”), under appeal.
[3] Groia at para. 8.
[4] Groia at para. 10.
[5] Groia at para. 232.
[6] Groia at para. 233.
[7] Groia at para. 235.
In my career I have been fortunate to work and interact with lawyers who are courteous, friendly, intelligent, civil, and formidable opponents. Most lawyers will promptly return my phone calls or emails, consent to requests for adjournments or extensions for filing defences (when appropriate), and use polite language, even in the most heated of arguments.
I have only dealt with a handful of “unprofessional” lawyers. Some lawyers simply refuse to respond to emails, letters, or phone calls. Others think that profanity, derogatory remarks, or excessive yelling helps their argument. Once, when a judge asked opposing counsel why he had not responded to my multiple requests for document disclosure he answered, “Well, I don’t know, I guess sometimes I am just a real bum-hole.” He did not use the word bum. When I witness this behaviour I may complain to a colleague or my husband and think: “Someone ought to report this person to the Law Society”. Then I move on to the next client or the next file and forget about these lawyers and their questionable behaviour.
However, when the newly amended Rules of Professional Conduct (the “Rules”) became effective on October 1, 2014, I reread them in their entirety and was reminded of my mandatory duty to report misconduct. This made me think: Am I under a duty to report this type of uncivil or unprofessional behaviour to the Law Society of Upper Canada (“LSUC”)?
Rule 7.1-3
The new Rules are based on the Federation of Law Societies of Canada’s (“FLSC”) Model Code of Conduct. Rule 7.1-3 (which was old rule 6.01(3)) states:
A lawyer shall report to the Law Society, unless to do so would be unlawful or would involve a breach of solicitor-client privilege,
a) the misappropriation or misapplication of trust monies;
b) the abandonment of a law or legal services practice;
c) participating in serious criminal activity related to a licensee's practice;
d) the mental instability of a licensee of such a serious nature that the licensee's clients are likely to be materially prejudiced;
e) [FLSC not in use]
f) any other situation where a licensee's clients are likely to be severely prejudiced [emphasis added]
Interestingly, the LSUC chose not to implement section (e) of the FLSC’s Model Code which states: “conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer”. Perhaps the LSUC chose not to adopt this section as the wording is very broad and could open the floodgates for potential reports of misconduct.
So, what situations will give rise to a duty to report? The first three scenarios under Rule 7.1-3 seem straightforward and fairly easy to identify. If you are aware of a lawyer who has stolen trust funds, abandoned his or her law practice, or participated in serious criminal activity related to his or her law practice, it is clear that you have a duty to report such behaviour to the LSUC.
However, the scenarios in subsections (d) and (f) raise some questions. Am I qualified to determine whether a fellow lawyer is mentally unstable? Or, am I able to determine if any such mental instability will “materially prejudice” a client? Also, what type of behaviour would fall into the ‘catch-all’ provision of “any other situation” where a client is “likely to be severely prejudiced”?
What is my duty?
Curious about my duty to report, I called the Practice Management Helpline at the LSUC. When I introduced myself as a lawyer writing on this topic I was asked for my LSUC number and advised that the LSUC would not respond to questions about hypothetical situations. So I used real examples from the past and asked for guidance on section (f): my duty to report “any other situation” where a lawyer’s clients “are likely to be severely prejudiced”. The individual I spoke with would not/could not provide me with a clear answer on the examples I provided. Nonetheless, she did parse the sentence for me and suggested that the use of the words “likely to be severely prejudiced” means that the Rule only applies to future client prejudice and not prejudice that has already occurred. In other words, if I am in a situation where I know a lawyer’s client is going to be severely prejudiced due to the lawyer’s actions I must step in and report the conduct to the LSUC, but if the client has already been severely prejudiced then I have no duty to report. This does not make sense to me and I question this interpretation of the Rule.
When I asked if there were any guidelines to help me understand my duty to report I was told that there was only the Commentary to Rule 7.1-3 which states, in part:
Unless a licensee who departs from proper professional conduct is checked at an early stage, loss or damage to clients or others may ensue. Evidence of minor breaches may, on investigation, disclose a more serious situation or may indicate the commencement of a course of conduct that may lead to serious breaches in the future. It is, therefore, proper (unless it is privileged or otherwise unlawful) for a lawyer to report to the Law Society any instance involving a breach of these rules or the rules governing paralegals. If a lawyer is in any doubt whether a report should be made, the lawyer should consider seeking the advice of the Law Society directly or indirectly (e.g. through another lawyer).[emphasis added]
Contrary to the actual Rule, which according to the Practice Management Help Line seems to promote a very narrow interpretation of when there is a duty to report misconduct, the Commentary suggests a much broader duty, or at least an opportunity, for a lawyer to report any breach of the Rules as a whole. In other words, if I am aware of a lawyer who breaches her duty to conduct herself honestly and with integrity, civility, courtesy and good faith,[1] it would be appropriate for me to report such conduct. But, if I am also aware that this conduct will likely severely prejudice that lawyer’s clients, it is not only appropriate for me to report such conduct, I am obligated to do so.
I could not find any LSUC disciplinary decisions that dealt directly with the “Duty to Report Misconduct” Rule 7.1-3 (or its predecessor 6.01(3)), or guidance for the thresholds of “materially” or “severely” prejudiced in this context. However, The Law Society of Upper Canada v. Groia [2] provides some guidance on ‘incivility’ in the profession and examples of the type of behaviour that will amount to professional misconduct in courtroom proceedings:
“In this case, the conduct which is alleged to have ‘crossed the line’ is not mere rudeness, let alone bad manners. Nor is it simply excess rhetoric or sarcastic remarks about opposing counsel.”[3]
“Nevertheless, taken as a whole, many of the comments he made crossed the line: they included repeated personal attacks on the integrity of the prosecutors and repeated allegations of deliberate prosecutorial wrongdoing that did not have a reasonable basis and were not otherwise justified by the context.”[4]
“In our view, determining when uncivil courtroom communication ‘crosses the line’ is, therefore, fundamentally contextual and fact-specific.”[5]
“In assessing the context of courtroom communications, it will be important to consider the dynamics, complexity and particular burdens and stakes of the trial . . . a few ill- chosen words or sarcastic or even nasty comments directed at one’s opponent may not constitute professional misconduct justifying a discipline proceeding, particularly if they reflect a moment of ill-temper and an apology is made. . .”[6]
“In our view, it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel unless they are both made in good faith and have a reasonable basis. A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel.”[7]
Therefore, while the determination of professional misconduct is very fact and context specific, it must be more than ill-chosen words or sarcastic and nasty comments. Nevertheless, repeated personal attacks on the integrity of other lawyers, and deliberate allegations of prosecutorial wrongdoing were enough in the context of this case to make a finding of professional misconduct.
Will You Report?
Reporting a fellow lawyer for breaching the Rules may result in serious ramifications for that lawyer. However, not reporting misconduct could result in even more serious consequences for that lawyer’s clients if the conduct prejudices their case and legal rights.
If the potential misconduct you witness is a result of a colleague or friend struggling with mental or emotional trouble, or drug or alcohol abuse, approaching that individual may be the best first step. You can remind them about the confidential counselling service provided by the LSUC and run by Homewood Human Solutions.
While most lawyers would be hesitant to report another lawyer, we must remember that we may not have a choice. The best suggestion to deal with any hesitancy is perhaps to call the Law Society’s Practice Management helpline and hopefully they can provide you with some guidance on your specific situation. However, burying our heads in the sand and simply ignoring the misconduct of a fellow lawyer could result in worse implications for that lawyer, the public, and the profession as a whole.
Please note that posts on this blog do not constitute legal advice and are for informational purposes only.
[1] See Rules 2.1-1 and 5.1-5.
[2] 2013 ONLSAP 41 (“Groia”), under appeal.
[3] Groia at para. 8.
[4] Groia at para. 10.
[5] Groia at para. 232.
[6] Groia at para. 233.
[7] Groia at para. 235.
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