An Ottawa lawyer has made an emotional apology to the Law Society of Upper Canada for “foolishly” posting Crown disclosure from a client’s criminal case on the Internet.
“This has been a terrible mistake,” David Ian Anber told a three-person disciplinary panel at a law society hearing in Toronto on June 25.
“It was wrong because the Crown attorney trusted me to keep my undertaking,” he said, his voice breaking.
“It was wrong because my client trusted me to protect her information. It was wrong because the court expected more of me. It was wrong to the profession, [which] depends on undertakings.”
Anber, a 33-year-old lawyer who focuses on vehicular offences, admitted to committing professional misconduct.
The disciplinary panel, chaired by Lyle Kanee, found Anber had breached his client’s confidentiality and his undertaking to the Crown to keep the disclosure “strictly confidential” and had failed to maintain the integrity of the profession.
Anber admitted that on Nov. 25, 2012, he “mistakenly and foolishly” posted Crown disclosure in PDF format for his client’s fraud case on freelancer.com, an Internet site where people can bid on jobs offered by individuals.
According to an agreed statement of facts, Anber asked on his posting if anyone could provide a program to remove “black boxes redactions” from documents.
“As a lawyer, I frequently get pdf documents that have been redacted by the other party which should not be redacted,” he wrote.
“It wastes time to have to ask a judge to order the other party to unredact information.”
He posted disclosure in his client Kimberley Billings’ fraud case as a sample of the kind of material he wanted unredacted.
It included her address as well as photocopies of her birth certificate and bank card; the Crown synopsis of her charges; witness statements; loan application forms filled out by Billings identifying her phone number and income; a preauthorized debit form that included her bank account number; payroll verification from the Ottawa Hospital; and a copy of her online bank account statement.
An Australian freelancer saw Anber’s online notice and, in a confidential message to the poster, warned that the PDF contained private information. He also contacted the Law Society of Upper Canada and Ottawa police.
An Ottawa police officer involved in the Billings case, Mitch Proteau, devised a sting operation. Posing as a Florida freelancer, Proteau called Anber and offered to sell him a program for $500 that would remove redactions from such files. Anber expressed interest.
Proteau also notified the Ottawa Crown’s office. It made an urgent application in the Superior Court to have Anber remove any electronic criminal disclosure in his possession from any web site and return it to the Crown.
Anber retained counsel and immediately reported himself to the law society.
In a hearing before Superior Court Justice Robert Maranger, Anber agreed to remove the Billings material from the web and return all electronic disclosure he had for any case to the Crown. He offered and arranged a mentoring program for himself with three senior defence lawyers that became part of the judge’s subsequent order. The judge declined, despite the Crown’s urging, to bar Anber from uncontrolled access to all future disclosure. Nevertheless, he chastened Anber.
“What took place here are egregious violations of several rules of professional conduct,” Maranger stated in his ruling.
Law society prosecutor Suzanne Jarvie asked the panel to penalize Anber with full costs of $7,205 and a “short but sharp” two-month licence suspension. “We are looking at a very serious breach of client confidentiality,” she said. “There is certainly not another case . . . that is anything like this.” The law society needs to send a message that it views this breach as egregious, she added.
Among the factors tempering Anber’s misconduct was his admission of wrongdoing, his expression of remorse, and the agreement to get mentoring, she said. Otherwise, she said, she could have sought a six-month suspension.
Anber’s lawyer, Michael Johnston, asked for a reprimand but no suspension. He didn’t challenge costs, stating his client feels law society members shouldn’t bear the financial burden of his case.
Johnston described Anber as a young and dedicated but previously somewhat isolated sole practitioner who made an impetuous, life-altering error late one night “with one click of a mouse.”
Called to the bar in 2009, Anber practises over a wide geographical area and is viewed as an outsider by lawyers at some of the courts in which he appears, said Johnston. He had few mentors until after this incident, he added.
“He now has been chastened,” said Johnston.
“He hears proverbial footsteps before he makes a decision.”
He settled for $16,520 after his former client sued him.
Federal and provincial Crown offices in Ottawa now deny him access to electronic disclosure. As a result, he must view the material on their premises “under gazes of suspicion and, in some cases, hatred,” said Johnston. He has been “publicly shamed,” he noted.
The ordeal has taken a toll on his family. His wife, who was at the hearing with their two-month-old son, said Anber is under so much stress that he sleeps only two hours a night and has gained weight, according to Johnston.
“He has learned from his errors,” Johnston added. A suspension, in a way, “would be non-responsive” because he needs an opportunity to learn, he said.
The panel reserved its penalty decision.
