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LSUC civility crusade sparks debate

|Written By Michael McKiernan

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.

Derry Millar would prefer to have disciplinary action be a last resort for incivility cases.

“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."

  • I agree Mr. Brown

    SAK
    If an opposing lawyer takes a position which is "devoid of reason" -- a term I have used, I see nothing wrong or "uncivil" in telling him/her. I have recently appeared on a matter in which opposing counsel took positions which were frankly, ridiculous. In each case, we ended up in a needless motion, and my client was awarded significant costs. However the proceedings were a waste of money for both parties, and a waste of the court's limited time. These were positions that went well beyond a "reasonable difference of opinion", and in each instance opposing counsel was admonished by the motions judge in open court. I did not hesitate to put my letters into the record, which referred to the other lawyer's position as "nonsensical" or "ridiculous". Perhaps the Law Society needs to provide us with a Thesaurus of acceptable synonyms for the strongest possible disparagement of a nonsensical position without risking disciplinary action.
  • Civility - It is Plain and Simple - Manners

    Courtesy N. D. Corum
    I am still intrigued by this "new" movement on Civility in the legal profession. At law school, we are taught the Civil Procedure of an "adversarial" system. In the civil bar, it is fair game to cut throat, especially in the relm of the multimillion dollar deals and the family bar. The common language and behaviour are simply vile.
    As a child I was taught "manners makes a man and woman too," regardless of your station in life. I think what we are talking about here is simply a lack of good manners.
    I am non-plussed why this new wave of civility is more focussed on the bar. Manners by its very nature is a notion of parity: not an implement by the powerful to oppress or intemidate the less powerful or the weak. I note the comments about using the policy of civility more at the bench level. Judges are powerful and perhaps too powerful and often they use their power, incivily to deprive a lawyer from acting for his or her client vigorously as the Rules of Professional Conduct (LSUC) demands of lawyers. When one complains about their incivility behaviour to their complaint process, in addition to being rebuffed by their governing body, there is often muted or subterranean reprisal, not only by the judge complained about, but also by his or her colleagues. Civility begins from the top; the LSUC and bench should be mindful of that.
    We belong to a noble profession; our conduct is a significant pilar of that nobility: not the abuse of one's powerful position. I remind you that freedom of speech is a significant element of our democracy. Before we begin to curtail it, we should be clear about what is meant by incivility and the purpose of the new civility rules. It cannot be a tool of intimidation or oppression.
    And just in case the LSUC, a powerful governing body forgets, the law applies to you too. Can you really use the new civility rule to punish someone for conduct that happened before its inception?
    By the Guiste, I know many people from the Caribbean Region. Manners (politeness) is a hallmark of their culture. Take your rationalisation comments someplace else. Although I should add that telling someone that his or her comment is nonsense is neither uncivil nor rude by universal standards. It is not what you say, but how you say it; it is not what you do, but how you do it.
  • gimme a break

    anonymouse
    Pushing the "nonsense" button is culturally neutral, taking offense to being called on your "nonsense" is an opportunity to defend your position. Perhaps the LSUC should go to the source and reinvestigate the articling process starting with Principal selection. Afterall, that is where civility should be germinated and nurtured no?
  • Civility

    Ian Wilson
    Mr. Legge is right.

    Civility is superficial. Often the last refuge of a scoundrel. It was the cosmetic of the racist American south. Let's look at the bigger picture.

    'The greatest evil is not done in those sordid dens of evil that Dickens loved to paint ... but is conceived and ordered (moved, seonded, carried and nimiuted) in clear, carpeted, warmed, well -lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices.' C.S. Lewis

    There are times when the powerless need to be able to raise their voices in civil protest against the uncivil actions of the powerful. The law society needs to consider all of the circumstances.
  • LSUC moves forward with civility crusade

    John Legge
    The history of "civility" in the American South was racist; in the UK classist.
    Defence counsel threatening a procedural trip to the SCC was not "uncivil"; it smacks of the extortionate. Any investigation by the LSUC for threatening meritless proceedings to hinder and delay? Who's keeping statistics on how many highly competent, smiley faced defence delay artists get called for incivility? How many solo practitioners acting for poor plaintiffs? Who are the complainants? Lawyers need thick skins. Our private and privileged discussions are just as if not more important to society as Parliamentary Privilege. Is the legal profession a place where"suck up, kick down" patterns of abuse are to be institutionalized? Are we now playing taunt - gotcha? Historically Civility Discipline hearings have been a form of institutional bullying by the strong of the weak. What steps has the LSUC taken to ensure this is not just another bad trip down legal history lane?
  • Anonymous

    Guest
    Ardent advocacy does not require inappropriate comments. In fact, the best lawyers are those that can maintain their composure in the face of opposing counsel who is behaving in an uncivil manner. It sounds as though too many of the lawyers discussed in this article have been subsumed by mainstream US legal dramas.
  • Practice ignoring rudeness

    Michael Head
    David Brown has it correct. I value and promote civility as much as anyone in this Profession. I also put a premium on having thick skin. Incivility is effective only when it evokes an uncivil response. Sensitive clients should be shielded from abusive lawyers. Sensitive lawyers should not be involved in dispute resolution. The Law Society should rarely prosecute incivility, unless it occurs in the courtroom. Finally, as my father once told me: "Don't fight with a pig. You'll just get dirty and the pig likes it."
  • Guest
    there must be a balance between candidly direct language, which can be a useful reality check, and the language more commonly used by members of opposing street gangs. in my view mr. guiste falls unequivically on the wrong side of that line. one of the fundamental problems with conduct such as his is that incivility too frequently begets incivility- it's difficult to remain equanimous towards someone who has just told you to shove anything up your ass. there are much more effective and elegant ways to say the same thing. in decades past members of our profession were well known for their ability to coin euphemistic phraseology. it's regrettable, but perhaps inevitable, that the current tone has degenerated into inarticulate potty talk.
  • Absolutely hilarious!

    Guest
    This is one of the funniest articles I have ever read. Thank you for the laugh Law Times! All of these lawyers (including Ernest Guiste) sound like class acts!
  • lawyer

    David Brown
    I find it frightening that making a statement like you are "speaking nonsense" would be the basis of a complaint. It would permit a certain kind of person who excel at playing victim in order to get their way, to have a field day.
  • Ernest J. Guiste
    The fact is that the recipient of that letter letter - Mr. Hodder - did not complain about it. This letter became a subject of discipline only after the initial complaint against me was closed with a caution and the complaining lawyer appealed the caution disposition. The investigation was then re-opened to look at correspondence pre-dating the original complaint - matters which were not the subject of complaint from the complaining lawyer. Of course by this time the LSUC's new policy on civility was taking form. It would seem that the new policy and standard was applied to acts which pre-dated it.
  • Ernest J. Guiste
    The expert report was not admitted into evidence on the liability part of the hearing. The panel ruled that they did not require an expert on the point. They ruled, however, that they may consider it in the penalty phase. It is also of some significance that the LSUC closed the initial complaint in 2008 with a caution. In addition, we settled the case for double the offer which created the problem and I have appologized twice - including once in writing.

    Respectfully,

    Ernest J. Guiste
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