The law society must be cautious not to impinge on the ability of lawyers to provide fearless advocacy in its prosecution of uncivil lawyers, according to a Toronto lawyer facing disciplinary action over his behaviour.
“It’s certainly in the public interest that lawyers be civil with one another, but at the same time, we must be very, very careful not to create a situation where over-emphasis on civility can be used as an instrument to undermine the effectiveness of my role to advocate on behalf of my client,” Ernest Guiste tells
Law Times.
Guiste was one of three lawyers who faced hearings last month over charges of misconduct related to civility. His matter stemmed from his behaviour at a mediation session during a sexual harassment case.
In an agreed statement of facts signed Dec. 13, he admitted to much of the law society’s account of his actions but denied they constituted misconduct. The hearing panel has reserved judgment following a two-day hearing.
In another matter, Julia Ranieri had her licence revoked on Dec. 17 after a panel found her guilty of misconduct for, among other things, the rude and abusive language she used towards a law clerk on the other side of a real estate deal she was involved with in July 2008.
“She just kept ranting and raving about how it was my fault that the deal wasn’t yet closed,” the clerk said of the 20-minute phone call in documents filed in the matter.
Ranieri failed to attend the hearing and was also found guilty of misappropriating funds and acting for clients while suspended.
That suspension was just the first of three imposed by the law society on her, including another in which she received a 10-month suspension for breaking a client’s nose with a punch to the face. She couldn’t be reached for comment.
In addition, Colin Lyle has been suspended on an interlocutory basis since December 2009, by which time the law society had what the hearing panel chaired by Carl Fleck described as “an alarming” 22 complaints against him related to his practice that primarily focuses on family law and child protection matters.
In March, he apologized in writing to complainants, including a former client who objected when Lyle allegedly said his girlfriend was “sleeping around.”
“If you want to make her into a slut, that is your problem,” Lyle allegedly told the client on the phone.
In his apology, Lyle thanked the client for the complaint, saying it had made him reconsider his career direction.
“I apologize for any abrasiveness. . . . I have sold my law practice and I am working toward a more balanced lifestyle,” he wrote.
Lyle couldn’t be reached for comment, and his lawyer, Janet Leiper, declined to speak about the matter. His hearing is due to reconvene on Jan. 20.
Former law society treasurer Derry Millar says he hopes the new continuing professional development requirement will keep civility top of mind for lawyers and stop problems before they arise. Three out of the 12 hours are reserved for professionalism and ethics courses.
“When people think about it, it helps them modify their behaviour,” Millar says. “I think there is a heightened sensitivity and I think we’ll keep people thinking about it.”
His term included a number of civility initiatives, such as the development of protocols with the three levels of court in Ontario that make it easier for judges to raise concerns about a lawyer’s behaviour.
According to Millar, judges had been reluctant to complain to the LSUC because of the perception that cases would disappear without a trace. But now they’re better informed about the progress of a complaint, he notes.
Millar also chaired the law society’s civility forum that heard from members of the profession in 11 different locations across Ontario.
“We had a real interaction, and I think it raised the whole profile of the issue,” he says. “It’s an important issue because lack of civility impacts on the administration of justice and ultimately it undermines the public’s trust in lawyers and the legal system.”
Nevertheless, he’d like to see disciplinary action reserved as an avenue of last resort for problems with civility. “We would prefer to have people improve and mend their ways,” he says, noting that suitable candidates are referred to mentorship programs run by professional organizations.
But in his case, Guiste was never offered mentoring, although his matter dates back to 2007, long before Millar’s civility forum toured the province.
The complaint against him stems from a mediation session in a sexual harassment case in which he told an opposing lawyer to take his opening offer and “shove it up your ass.”
Guiste admits he “got upset” and “said some things that he shouldn’t have” but maintains the context is important when determining whether his behaviour was uncivil.
He says his client broke down following the offer, which Guiste believed was deliberately low in an attempt to shake the client’s confidence in him.
In addition, he notes the mediator wasn’t offended by his actions. He also filed an expert report by mediator Jules Bloch who said he had seen much worse behaviour in the particularly emotionally charged atmosphere of a mediation dealing with sexual harassment.
“Feelings often run high,” Bloch wrote. “Counsels may find themselves pushing unpopular positions. This type of advocacy often leads to loud voices and the possibility of aggressive exchanges, which often involve swearing.”
In any case, Guiste feels the session fell under the protection of a strict confidentiality agreement.
In another instance highlighted by the law society, Guiste rebuffed an assertion by the opposing lawyer and told him in an e-mail that he was “speaking nonsense.”
“I’m from the Caribbean,” he says in explaining his actions. “In our culture, when someone is speaking nonsense to you, you tell them. It’s not seen as being uncivil.
There’s a lot of vagueness as to what is uncivil.”
In another e-mail, Guiste told opposing counsel that “unlike yourself, I do not have a client that is a CASH-COW!” He says he was responding to a suggestion that the opposing client, a large corporation, was willing to go to the Supreme Court on a procedural matter.
“They’re saying, ‘My client has the bucks, so we’re either going to do it our way or not do it at all.’ They were saying they were prepared to fight my client tooth and nail.
What are you going to say? Are you just going to roll over and die? In a context where a lawyer is dealing with a difficult lawyer on the other side, we can’t just take it in a vacuum. When everything is taken in context, the e-mails and the communications that I wrote do not stand up to the jurisprudence I’ve seen about incivility.”
For more on this issue, see "
LSUC moves forward with civility crusade."
