One Step Short of Disbarment
“Just what does it take to get disbarred?” That’s been one of the conversations ongoing this week with law students at Legal Help Centre.
At Legal Help Centre, we provide experiential learning for law students and articles for law graduates. Much of the clinic work is training for law practice. This includes training in substantive law, court procedures, client relations, document management, and of course, ethics and professional responsibility. We work hard to ensure the students that come through our programs learn about competent lawyering with an emphasis on client service and professional integrity.
It was in this context that discussions arose about a concerning disconnect between what our Code of Conduct sets out as the expectations of lawyers (what we say) and what some lawyers actually do. The most recent conversations were spurred on by a story reported by CBC last week about the suspension of Winnipeg lawyer David Bradley.
The Law Society of Manitoba suspended Bradley for one year effective March 1. Little information is available on the Law Society website as to the circumstances, but the CBC report contained numerous quotes from the decision of the Discipline Panel that paint a picture of a spiralling series of fabrications, misleading the client and opposing counsel as to the status of the client’s claim. The Law Society panel concluded, according to the CBC report that his behaviour was:
“…entirely unacceptable and is deserving of a significant penalty which, in the panel’s view, is one step short of disbarment.”
Hence, the students are questioning, what do you have to do to be disbarred? Why is repetitively misleading your clients and colleagues over a period of time not sufficient to disentitle you to practice law? This is indeed challenging to understand and even more, to explain, whether to law students or the public at large.
When the rubber hits the road and theory becomes reality, ethics matter. Our duties to our clients, our colleagues and the court are not only aspirational; these are responsibilities we are obliged to carry out even when it is hard to do so.
Integrity is a core value of the legal profession. We need to always ensure that we act individually and as a profession, in a way that reflects the centrality of this value. When we fail to do so we put at risk both our self-governing status and the position of trust we hold in relation to our clients.
I don’t know enough about the circumstances of this case to form an opinion as to whether or not the panel made the “right” decision. I’ve no doubt they did their job as best they were able given the evidence before them and submissions made. What bothers me is the embedded message about how much you can get away with and still be allowed to practice law, albeit after a period of suspension.
Absent more information, one is easily left with a negative impression about the integrity of the legal profession. And perhaps it is nothing more than additional information that is needed to clarify and expand upon the facts as reported by the media.
Sadly, as noted above, there’s nothing more than a suspension notice on the Law Society website, not nearly enough to counter the concerns raised on reading the media accounts. That’s a missed opportunity, in my view. An explanatory news release could have provided useful context, explained the reasoning of the panel and reinforced the commitment of the Law Society to protecting the public interest, upholding the values of the legal profession and supporting lawyers in meeting their professional responsibilities. It’s not so difficult to do; other law societies already do so (for example, the Law Society of British Columbia’s February 27, 2015 notice of a suspension).
Why not in Manitoba?
The Law Society of Upper Canada also makes its decisions public, with some detail about the offence and often some detail about the penalty. The reasons are reported on CanLII. Suspensions for serious offences often require supervised practice for a period after they end.
Excellent questions – one as a member of “the public at large” I’ve been asking for years – without answer. “Misleading clients and colleagues” covers a lot of ground. So maybe one way to come at this is to present various “challenging” scenarios to law students for discussion as to whether or not this or that (mis?)behaviour fits within the ethical parameters and/professional standards being taught. Keeping in mind “ethics matter” and that professional duties to the court ought not be mere high-sounding rhetoric – here is an example of what the public and perhaps students might see as ethically and professionally problematic. My understanding is that the Ontario Rules of Civil Procedure have always promised the public that expert testimony can only be proffered by properly qualified experts and that this was made more explicit in 2010. Further, the LSUC wrote that “lawyers have a professional duty to check and challenge the qualifications of opposing experts and to challenge them whenever it is appropriate to do so”?
So I ask – how is it possible that a psychologist – unqualified to proffer expert opinion evidence in brain injury cases – was able to do so over and over and over for several years without challenge to his qualifications? A simple toll-free call to the College of Psychologist of Ontario – or a quick on-line check of this psychologist’s membership profile – would have revealed that he wasn’t authorized by his health regulatory body to proffer opinions about brain injury. And yet this psychologist did exactly that time and again.
Why did the auto insurer defence lawyers hire this psychologist and mislead the court in this way? Or didn’t they know this psychologist was not authorized to practice in the area of neuropsychology? If not –how could they not – given how simple it would have been to find out? Hundreds of Ontario personal injury cases (997) – many of them brain injury cases – were tainted by this failure. Of course the next obvious question is why didn’t the plaintiff lawyers call the regulatory College (CPO) to confirm that this “opposing expert” was in fact properly qualified to proffer neuropsychological opinion evidence for the defence in brain injury cases? The fact is none did.
There is lots of discourse floating around about the gatekeeping responsibilities of triers of fact and the need to ensure that only properly qualified experts are permitted to proffer opinion evidence. But how can triers of fact hope to discharge their gatekeeping responsibilities if nether the insurer defence lawyers nor plaintiff lawyers are actually checking to ensure the medico-legal experts have the qualification they claim to have?
Trying to get an answer to some of these questions is not an easy task. The FSCO Arbitration Unit takes no responsibility for the fact that one can go to its website – plug in the name of this psychologist – and get long list of hits in which brain injured Applicants were painted by this fake expert as malingerers (all his assessments allege malingering or symptom exaggeration). Not once were his qualifications challenged. FSCO’s position was that it was up to the lawyers on either side to raise this issue (“whenever appropriate to do so”) during the hearing. Fair enough. But FSCO also took the stance that it has no obligation, ethical or otherwise, to inform the many victims (former FSCO Applicants) that their cases were polluted with unchallenged, expertise and might require another look. How would law students reconcile that stance with the aftermath of the Dr. Charles Smith fiasco? |His cases were reviewed. Too be wrongfully incarcerated for years on the basis of testimony proffered by a “woefully inept” “expert/pathologist must have been a living Hell. But what about highly vulnerable, cognitively challenged brain injured accident victims being painted as fakers and tossed to the curb by FSCO Arbitrators based on the unchallenged “expert” opinion evidence of an unqualified psychologist. If wrongful convictions in criminal court can be revisited – then why not wrongful decisions in civil court?
As a result of a complaint to the CPO – brought by one of the subjects (not by any lawyer) of this “expert’s” handiwork this psychologist was referred by his College’s Complaints Committee for a Discipline Hearing on eleven counts of professional misconduct. Like the infamous Dr. Smith – rather than face a Disciplinary Hearing this psychologist chose instead to “voluntarily” retire from the profession and agreed not to seek to practice anywhere in North America – ever again.
So in this scenario (case study for students)) we have a highly dubious “expert” who painted all the vulnerable subjects of his unchallenged “expertise” as fakers and who, in the absence of challenge, was able to “mislead” triers of fact (the court) again and again. But for a toll-free call and subsequent formal complaint to the CPO made by a layperson (not by any of the many lawyers involved on one side or the other) – he would still be proffering unchallenged, unqualified “expert” opinion evidence and making a nice living in the witness box. In the aftermath of this fiasco the CPO disseminated a document to its members clearly spelling out the College’s required qualifications to proffer opinion evidence in brain injury cases. It is unclear if this “Advisory” has had any effect on the quality of psychological expert evidence in Ontario brain injury cases – or if lawyers even use it.
So on the continuum of ethical and professional expectations (aspirational or otherwise) where would law students decide this failure lies. 1) No problem – all is well. 2) A little bit iffy but what the Hell – injured litigants ought not expect a “perfect” system 3) a serious problem that needs fixing.
So far, nothing has been done to improve the state of expert opinion evidence in the Ontario personal injury context. Not surprisingly – scenarios similar to this one have happened in the sane context. The response to date from the legal community has been silence.
If this is ever to change – it will be today’s law students who improve thing for tomorrow’s injured litigants. Till then – all of Ontario’s (over 60,000) injured auto accident victims should have the benefit of warning upon entering the personal injury, expert witness, adjudication/litigation system: “Abandon all hope, ye who enter here.”.
Our self-governing status at risk; see: “Alternative Business Structures Proposals or Solving the Unaffordable Legal Services Problem,” on the, “Access to Justice in Canada” blog, March 6, 2015: http://accesstojusticeincanada.blogspot.ca/
– Ken Chasse, member, LSUC & LSBC.