February 2, 2012

The Price of Incivility

Professional Regulation

A lawyer’s professional obligations include a duty to conduct themselves with courtesy and good faith in dealing with other members of the profession. A failure to abide by this duty can result in disciplinary action. This risk is exemplified in a January 2012 decision of the Law Society of British Columbia in which a lawyer found guilty of professional misconduct for incivility was issued a fine for $1,500, and an order of costs against him for $3,000.

The member, a sole practitioner in the Okanagan community of Vernon, had been previously found to have made discourteous and personal remarks about a lawyer in Ontario (the “Ontario Lawyer”). The remarks were made after the Ontario Lawyer sent correspondence to one of the member’s clients which the member felt to be inappropriate and took exception to. The member was found to have made discourteous and personal remarks about the Ontario Lawyer both in a publicly available internet posting and in a fax sent to the Ontario Lawyer on behalf of his client. He did not deny any of the facts alleged but denied that his actions should attract any sanction.

The member’s client had received a demand letter from the Ontario Lawyer on behalf of a retail store seeking payment of $521.97 as damages resulting from shoplifting by the client’s teenage daughter. According to the demand letter, the retailer took the position that it had the right to claim damages against the parent or guardian of a young person caught shoplifting on the basis that the parent had failed to provide reasonable supervision, and the letter threatened civil action if the demand was not met.

The member’s response to this demand letter included such admonitions as referring to the letter as “insulting and frankly stupid”, and stating that he had instructed his client to put the letter “to the only use for which it might be suitable, however uncomfortably”.  He also intimated the Ontario Lawyer was “preying on people’s embarrassment and naïveté” and “bullying people into paying some small amount of money”, and suggested the Ontario Lawyer should “save the postage next time and become a real lawyer instead”. The internet posting contained further personal remarks about the Ontario Lawyer such as “[t]his is the kind of lawyer that gives lawyers a bad name. … I hate these sleazy operators”.

The member defended his actions on the basis he was dealing with a rogue lawyer, but the hearing panel found that his belief in the correctness of his position did not relieve him of culpability for the personal remarks he made. The panel did not, however, adopt the Law Society’s position that the member’s attempts to justify his position exacerbated his remarks.

Laarakker (Re), 2011 LSBC 29 (CanLII) (link here)

Laarakker (Re), 2012 LSBC 2 (CanLII) (link here)