Lawyers, judges battle at LSUC

A Hamilton, Ont., lawyer facing allegations of incivility from six members of the family court bench stood by her conduct at a disciplinary hearing last week, arguing that judges need to have thicker skin.

Sole practitioner Ann Bruce’s conduct led one judge, Superior Court Justice Cheryl Lafrenière, to find her in contempt of court in June 2010.

Lafrenière lodged a complaint about her in May 2010 on behalf of the judges, who all sit in the Unified Family Court in Hamilton and had encountered Bruce over the previous year.

But Bruce, who is facing four counts of professional misconduct, insisted she had done nothing wrong, and claims their views weren’t representative of her interactions with the judiciary elsewhere in the province.

“There is no basis to suggest I have denigrated the court,” she told the Law Society of Upper Canada panel hearing her case. “I have worked in other courthouses, and there hasn’t been one instance of anything remotely similar to these extreme allegations.”

Instead, she said the allegations were all rooted in her dispute with Lafrenière.
“This judge didn’t have thick skin and she was hypersensitive,” Bruce said.

Suzanne Jarvie, counsel for the law society, said transcripts of court proceedings showed Bruce had adopted “an aggressive, interruptive, argumentative, and disrespectful tone.”

“Ms. Bruce’s practice is to recklessly cast aspersions on the bench and opposing counsel without factual foundation,” Jarvie said.

Bruce accused several judges of bias and told some of them she’d be appealing their decisions, according to Jarvie.

“It is an extreme case, not one where [there were] isolated events in which counsel have lost control of themselves,” Jarvie said.

“Ms. Bruce was repeatedly getting messages, both explicit and implicit, from the bench and from other counsel. At every turn, this advice and these comments and these cues fell on deaf ears.”

The final straw for Lafrenière came during a custody hearing on Feb. 25, 2010, after the judge told Bruce to move on from a point she was making.

“Yes I will, your honour. Yeah, I’ll move on with my report to the Canadian Judicial Council as well,” Bruce said, according to a transcript of the proceedings filed with the hearing.

Lafrenière then cited Bruce for contempt for threatening the court. The judge eventually found her in contempt of court at a hearing four months later at which Bruce was fined $500.

During that proceeding, Bruce accused the judge of “sharp practice” and “intimidation” when she raised her complaint to the law society about Bruce’s conduct.

Bruce told the hearing her comment wasn’t a threat because she did in fact move forward with her complaint, a move she says she was entitled to make.
“This is a case where I was cited in contempt for using a very lawful mechanism,” she said.

It wasn’t the first spat between Bruce and Lafrenière, who had previously warned the lawyer of a possible contempt citation if she left the courtroom during a hearing on a separate matter. Bruce was seeking an adjournment while her client sought legal aid.

“I’m not getting paid to be here right now,” Bruce said, according to the transcript.
Bruce also objected to Lafrenière’s handling of a settlement conference involving another client.

“I think it should be conducted as a settlement conference, not as some draconian court proceeding,” Bruce said, according to a transcript of the matter. “I’ve never had a judge take such an antagonistic tone. . . . I know it’s difficult, but if you could just respect me for five minutes.”

Superior Court Justice Alex Pazaratz, another complainant, awarded $2,000 in costs against Bruce personally in one case. He characterized her approach as “unnecessarily inflammatory” and chided her for presenting “lengthy, unfocused, and irrelevant” materials.

“If you think you’re going to control the way I advocate, you’re wrong,” Bruce told Pazaratz, according to a transcript.

But Bruce said civility cuts both ways and argued she had been subject to rude and insulting comments from the bench. In any case, transcripts can never give a true picture of what happened in court, Bruce said, adding she had never swore or raised her voice in court.

Without hearing audiotapes, “There is a fundamental lack of understanding of the dynamic” in court, she said.

“There was never one instance where I have lost control of myself,” she told the panel. “Anyone who was not in court that day is not in a position to be interpreting these transcripts. The context is extremely probative.”

In her evidence, law society investigator Renae Oliphant admitted that the intonation of speech is lost in transcripts but said the content is critical. She was present on June 22 when Lafrenière found Bruce in contempt of court.

“Ms. Bruce was appropriate in the manner in which she was speaking. My concern was the content of the words. There was no yelling or raised voices.

They were speaking in very normal, monotone-esque voices. There was nothing that would have caught my attention had I not been listening to the words.”

The ongoing matter comes after another lawyer who ran into trouble for an encounter with the bench was found guilty of four counts of professional misconduct earlier this month, including one that related to an exchange with Justice William Bassel of the Ontario Court of Justice.

Bassel believed Ernest Guiste had missed four judicial pretrials in a matter when in fact he had missed only one. Two of the pretrials involved co-accused represented by other counsel whom Bassel believed had been inconvenienced by Guiste’s absence.

“So this thing about Mr. Robbins, or whoever he is, Johnny Cochrane come lately, or whatever, whoever he is, I’ve never seen him,” Guiste told the court, according to the transcript.

Despite the confusion, a law society panel found Guiste had failed to show the court the “utmost courtesy and respect.” It noted the court had found his remarks “sarcastic and offensive and discourteous.”

“Perhaps I ought to have shown a little more restraint, but at the same time, when you have somebody falsely accusing you of something and being unrelenting, as a human being, you might react,” Guiste tells Law Times.

“Does a judge have absolute right to berate a lawyer, even when he doesn’t have his facts right? These are things we need to discuss as a profession.”

Guiste was also found guilty of professional misconduct stemming from a mediation session in which he told opposing counsel to take his opening offer and “shove it up your ass.”

Counsel for the law society also said Guiste’s assertion in the meeting that “someone doesn’t need to grab a tit for it to be sexual harassment” was unprofessional.

Two more counts related to chains of correspondence in which Guiste called his opponent’s client a “cash cow” and told one lawyer he was “speaking nonsense.”

“The lawyer appears to have lost respect for his opposition which, in his view, grants him the right to use a condescending tone when dealing with other lawyers on the file and the assistant,” wrote adjudicator Adriana Doyle on behalf of the panel.

As Guiste acknowledges, “I shouldn’t have said what I said.” Still, he maintains he was reacting to difficult lawyers on the other side whom he felt were trying to intimidate his client. He says his case does little to clear up confusion about what constitutes uncivil conduct.

“I’m being prosecuted successfully on vague standards,” he says. “I’m not saying civility is a bad thing. It’s a good thing. But when you impose arbitrary standards that are not clear in terms of their conduct, the only person that suffers is the person who’s fighting for justice.”

Guiste remains troubled that the LSUC allowed the complaining lawyer to violate a confidentiality agreement signed by all parties before the mediation conference. “That sets up a very dangerous precedent,” he says.

“Public policy encourages parties to try and settle cases, and a confidentiality agreement allows parties to tussle with each other back and forth and negotiate. If there’s a confidentiality agreement in place, it should be respected.”

The panel dismissed that reasoning in its decision, saying it couldn’t agree with the proposition that “closed mediation cannot occur with total adherence to professionalism and good conduct in accordance with the Rules of Professional Conduct.”

A hearing on penalty has yet to be scheduled.

For more on this story, see "LSUC civility crusade sparks debate."

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