The Regulatory Issues
The Lawyer was alleged to have engaged in sharp practice on or about July 20, 2007, when he instituted default proceeding in court file no. 07-CV-329949PD3, without notice to the defendant's lawyer.
The Lawyer was also alleged to have written letters dated July 6 and 12, 2007 to the defendant's lawyer and others regarding court file no. 07-CV-329949PD3, in July 2007, in a manner that was uncivil and inconsistent with the proper tone of the professional communication from a lawyer.
Regulatory Meeting Outcome
Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issue s and the applicable Rules of Professional Conduct.
The members of the Proceedings Authorization Committee were of the view that it was improper for the Lawyer to institute default proceedings without notice to the defendant in the face of pending motions for orders:
- to dismiss the action for lack of jurisdiction; and
- to extend the time for the filing of the Statement of Defence
and contrary to the arrangement not to note the defendant in default, which the defendant's lawyer believed to be in place in mid-May 2007.
The Committee also noted that the Lawyer's conduct was aggravated by the two letters the Lawyer wrote to the defendant's lawyer and copied to other members of the bar.
The Committee made particular reference to the comments on the Lawyer's conduct that were made in two decisions in the underlying litigation by the Hon. Mr. Justice Newbould, who wrote that the Lawyer's actions were "misleading in the extreme" and that ".....the correspondence that I have discussed are actions that should not be condoned but rather censured. The Rules of Professional Conduct and the Principles of Civility adopted by the Advocates' Society are intended to prevent the kind of correspondence that was sent…."
The Committee drew the Lawyer's attention to sub-rules 4.01 (6), 6.01 (1), 6.03 (3) and 6.03 (5) of the Rules of Professional Conduct . The Committee reminded the Lawyer that even in acrimonious, high-profile litigation, a lawyer's obligation is to avoid sharp practice, to act in good faith and to treat opposing counsel and all persons with whom the lawyer has dealings in the course of litigation with courtesy and civility. The Committee noted that the Lawyer is a senior member of the bar with the ability to influence junior lawyers as they develop their practice styles.
The Lawyer acknowledged that he conducted himself in a manner that was inconsistent with the Rules of Professional Conduct. In particular, he acknowledged that it was improper to institute default proceedings without notice to the defendant in the circumstances of this case, and that his letters to the defendant's lawyer were uncivil. In light of his discussions with the Committee, the Lawyer has committed himself to observing the principles of civility.
The members of the Proceedings Authorization Committee agreed that the discussion was useful, and concluded that having addressed the regulatory issues, there will be no further action regarding this matter.
(Counsel for the Society, Amanda Worley/the Lawyer attended in person and was represented by Sylvia Tint)