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Lawyer facing discipline for internal e-mails

|Written By Neil Etienne

A lawyer who has raised eyebrows with some choice words directed at the Law Society of Upper Canada’s disciplinary tribunal in the past is now defending against allegations of unprofessional misconduct and abusive behaviour for a series of e-mails exchanged with two other lawyers.

The LSUC alleges that after taking on a client in a civil matter from former representatives Sue Kim Chen and Bois Wilson, Toronto lawyer Paul Robson exchanged a series of e-mails with them on dates between October and November 2013 that were abusive, offensive, or otherwise inconsistent with the proper tone of professional communication from a lawyer.

In his defence, Robson’s counsel Richard Watson argues a number of points, including that the e-mails were private correspondence between lawyers, never intended to be made public.

He argued that while some e-mails from Robson stated things such as “unlike some lawyers involved with this file, I act pursuant to client instructions” and “I have found Ms. Chen to be utterly vulgar in my dealings with her” or “I will not entertain further email correspondence from you,” at no point did they reach a level of abusive or offensive language and do not broach incivility.

He said the e-mails amount to a private heated e-mail conversation over disbursements and that Robson was only responding to heated e-mails in kind.

“You have to be very careful with that inner ear and with what tone you read the e-mails,” Watson told the tribunal.

In making his opening arguments to the tribunal panel — chaired by Raj Anand and rounded out by Suzanne Clement and Joanne St. Lewis — Watson said the tribunal will be tasked with better defining the specifics of what constitutes “offensive and abusive” behaviour as it pertains to e-mails.

It’s a form of communication that he says “leads to more misunderstandings than any other form of communication.”

Watson argued that the e-mails were exchanged over a short period of time, on a weekend, and during non-work hours when both sides of the matter were feeling tense over a dispute on disbursements. Chen had been counsel for clients (protected under a publication ban) in a civil matter and dissolved the professional relationship. Robson was then retained by the clients and he sought to receive the case file from Chen. Chen requested he pay her disbursements of approximately $42,000 first and she would then provide the full file, and this led to the argument between counsel through e-mail, Watson described. He added the e-mails contained no direct attacks of the fellow counsel, and nothing sexist or racist. They also did not include any cursing, all of which would potentially broach on incivility.

“The most problematic part of e-mails is expression of things like sarcasm,” Watson argued on Robson’s behalf, saying the reader of an e-mail injects the tone and what one person might read as humorous or lighthearted might be seen as offensive or an attack by another. “The words . . . come nowhere near abusive or offensive.”

For its part, LSUC counsel Elaine Strosberg argued that it is a straightforward case, relying on the affidavit evidence of the e-mails that she argued did rise to the level of abusive and offensive. She said even though the e-mail exchange was a conversation between counsel, Robson held no “lesser duty” to be civil to his peers.

“It may not be the worst examples of incivility,” Strosberg said, adding, however, that it was a disrespectful and abusive exchange that required some form of reprimand from the LSUC.

Following the first two days of the hearing, Watson told Law Times he sees it as an important case in better determining what constitutes unprofessional communications and incivility outside of a courtroom, especially as it relates to the newer technology of e-mails.

“Right now it is still very wide open,” Watson says. “The LSUC and other professional commentaries are full of general banalities and bromides, but they all lack the real detail that would give lawyers practical guidance.”

The LSUC tribunal hosted two days of conduct hearings Jan. 21 and 22 and have scheduled three more days in late May and early June to deal with the matter.

In June of 2015, Robson won an appeal of a ruling revoking his licence to practise for conduct unbecoming during a separate civil matter. He failed in a bid for $750,000 in costs for his appeal and wrote a letter to the tribunal’s appeal division after the ruling was released. In that letter, Robson wrote: “You as an SRO currently operate as a turd” and later “A stinking giant hypocritically confliected [sic] turd at the intersection of Queen and Uniisity [sic].”

He was not further disciplined for that letter but provided similar commentary to the Law Times following the first days of his hearing.

“The Law Society is doing its very best to shut me down for improper and completely groundless reasons other than ‘we are the Law Society of Upper Canada and we are above the Law,’” he said. “They are saying that they need to protect the public from me while they are public plague, a raging cancer.

“They thrive at the intersection of Vile and Vomit and no one seems to be paying attention lest they have been abused by them,” Robson said.

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