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Intimate Partner Violence Is Conduct Unbecoming a Lawyer (Sort Of)

If a lawyer physically or sexually assaults their intimate partner, they may be penalized by their governing law society for conduct unbecoming a member of the profession. If a lawyer commits systems abuse while self-representing, the behaviour may amount to professional misconduct. However, if a lawyer in their representative capacity acts as a tool of abuse on behalf of their client, it seems as though they are unlikely to be found guilty of professional misconduct for their role in the intimate partner violence (“IPV”). To be sure, their professional conduct may be subject to judicial admonishment and even costs consequences; but it seems unlikely that their governing law society will become involved because of the IPV alone. This disconnect seems problematic to me. This post considers why the Federation of Law Societies Model Code of Professional Conduct is silent on the issue of family violence and IPV, yet law societies are willing to penalize lawyers for IPV.

LSO v Widz[1]

In Law Society of Ontario v Widz, 2022 ONLSTH 140, the issue was the penalty for a lawyer’s abuse of his partner. The lawyer admitted that his physical assault on his intimate partner amounted to conduct unbecoming (para 1). He had also pled guilty to a criminal charge of assault (para 2). The lawyer sought to convert the Law Society of Ontario (“LSO”) penalty proceeding to an invitation to attend (“ITA”) which would have resulted in “a dismissal of the application, no disciplinary record and an in-camera admonition from the panel” (para 25). To be converted, the lawyer would have to show that his conduct was on the “low end of the scale of seriousness” (para 20). Conversions only occur in “exceptional circumstances” (para 25).

The tribunal was required to consider the seriousness of the lawyer’s conduct to make their decision. In doing so, they took the opportunity to quote from Law Society of Upper Canada v Kumarasamy, 2015 ONLSTH 52, a similar case involving a paralegal. In that case, the tribunal framed IPV as a “issue of gender equality” (para 37). Lawyers and paralegals were found to have an “obligation to respect equality” pursuant to the Charter of Rights and Freedoms and under the Human Rights Code, RSO 1990 c H.19. They held that when a professional engages in abusive conduct they harm “the reputation of the … profession for respecting and upholding equality and the law” (para 37). Moreover, they held that the “penalty must emphasize the profession’s lack of tolerance” for IPV (para 37).

The tribunal stopped short of declaring that IPV is “ineligible for an ITA under any circumstances”, but they did say the conduct in Widz was not eligible (para 44). In this case, the lawyer had cooperated throughout, and he had attended private counselling, a Partner Assault Response Program, and an alcohol awareness program. He also had several positive character references and no history of violence (paras 13-19; 42-43). Despite those mitigating factors, the tribunal found that given the serious nature of the violence, it was in the interest of “general deterrence, and the need to maintain confidence in the Law Society’s self-regulation in the public interest” to find conduct unbecoming in this case (para 45). The lawyer was suspended for one month and ordered to pay costs of $3,000 (para 47).

Conduct Unbecoming

Lawyers can be disciplined for professional misconduct or conduct unbecoming a barrister or solicitor (Law Society Act, RSO 1990, c 8, s 33). Broadly speaking, professional misconduct focuses on the lawyer’s conduct in their professional capacity; and conduct unbecoming is about the lawyer’s conduct in their personal capacity. Given the private nature of the latter, professional codes of conduct are largely unhelpful for defining expected conduct in a lawyer’s personal life. There are only a few provisions of the Model Code that include a lawyer’s non-professional conduct, such as the new sections on harassment (R 6.3-1[9], bullying (R 6.3-2[4]), and sexual harassment (R 6.3-3[4]), as well as the integrity section (R 2.1-1[3]). The Ontario Rules of Professional Conduct defines “conduct unbecoming” to mean “conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession”, including a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer”, “taking improper advantage of the youth, inexperience … of another”, or “engaging in conduct involving dishonesty or conduct which undermines the administration of justice” (R 1.1-1). The BC Legal Profession Act, SBC 1998, c9, defines “conduct unbecoming the profession” as conduct “contrary to the best interest of the public or of the legal profession,” or that “harms the standing of the legal profession” (s 1(1)). In Clarke (re.), 2021 LSBC 39, the Law Society of British Columbia (“LSBC”) “recognized that public confidence in the integrity of the administration of justice and the legal profession may be eroded by a lawyer’s dishonourable, irresponsible or questionable conduct, even when it occurs outside of the professional sphere” (para 62). The LSBC said focus will tend to be on conduct that brings “into question the lawyer’s professional integrity” (para 62).

According to Gavin MacKenzie, to amount to conduct unbecoming, the behaviour tends to “bring discredit upon the legal profession or the administration of justice.”[2] This amounts to behaviour that calls into question the lawyer’s “ability or willingness to practice law honestly and competently.”[3] Behaviour that typically amounts to conduct unbecoming includes things such as committing a criminal offence or the obstruction of justice.

Why not Specifically Regulate a Lawyer’s Facilitation of a Client’s IPV?

Widz is not the first case where a lawyer’s abuse of their intimate partner amounted to conduct unbecoming. For instance, a 2021 LSBC case, Kang (re.), 2021 LSBC 23, involved a lawyer who had assaulted his wife and entered into a common law peace bond as a result (para 29). In that case, the LSBC found the lawyer’s conduct amounted to IPV, and therefore he had engaged in conduct unbecoming the profession (paras 41-43). Similarly, a 2022 LSO decision, Law Society of Ontario v Aujla, 2022 ONLSTH 77, found that the lawyer had engaged in professional misconduct and conduct unbecoming in relation to abusive conduct towards his spouse. In 2021, in Clarke (re.), the LSBC found conduct unbecoming when a lawyer was convicted of threatening his former partner. Most of the decisions seem to have been within the last few years, suggesting an influence of what the LSO framed as “increasing public awareness, concern and action” in relation to IPV (Widz, para 35). The penalties imposed range from fines to limited-term suspensions from practice. Law societies have also penalized and disbarred lawyers for their professional misconduct in relation to IPV as a self-represented litigant, including for apparent systems abuse. The law societies involved seem concerned about ensuring they are seen as intolerant of IPV in order to ensure public faith in the profession and justice system.

However, if the law societies are concerned about regulating the private conduct of lawyers in relation to IPV, which I am not disagreeing with, why are they not equally concerned about regulating the professional conduct of lawyers in their representative capacity? I would have thought it would be more controversial to regulate a lawyer’s private conduct than their professional conduct.

Most of the conduct that seems to be captured in these cases involved criminal charges. This makes sense. A lawyer’s criminal conduct violates the trust we place in lawyers and the legal profession to uphold the rule of law. This is presumably also why it is less controversial than it may first appear to regulate a lawyer’s personal conduct in this context. That said, relying on criminal charges to identify and validate IPV is well-recognized as an ill-equipped method given that so little IPV is reported to the police, and even when it is reported, victims may be pressured or threatened by their abuser not to cooperate.

Most of the cases do not seem to involve coercive control alone. This too makes sense because coercive control is not a criminal offence in Canada. There are cases involving professional misconduct as a SRL related to misuse of the justice system, which also makes sense given the importance of maintaining trust in the justice system. However, what these lines suggest is that maintaining the lawyer’s role and justice system are the priorities, not the public interest in preventing gender-based violence.

The Department of Justice has said that coercive control is the “most serious type of violence in family law”. Coercive control is included in the Divorce Act, RSC 1985, c 3 (2nd Supp) definition of “family violence”, recognizing “conduct” that “constitutes a pattern of coercive and controlling behaviour” including an open enumerated list of tactics and behaviours (s 2(1)). Coercive control is unlikely to end upon separation and is a strong indicator of lethal violence. Indeed, survivors’ risk often increases during the months following separation. Separation also provides new ways to control. A recent report by WomanACT found that financial abuse is a way for abusers to maintain control after separation, particularly through the manipulation of spousal and child support orders (pg. 27). Similarly, research shows that children may be used by abusers to try to maintain control over their mother. Systems abuse occurs when an abuser uses tactics and/or prolonged litigation to maintain contact and control over a former spouse (7.4.1). For instance, by using multiple legal systems (i.e.: family court, appeals, child protection, police, etc.) to do so. The Department of Justice has said that systems abuse includes conflicting out lawyers (see my previous column on conflicting out here), “engaging in stalling tactics”, “refusing to complete court documents”, “refusing to provide complete or timely financial disclosure”, “initiating repeated and frivolous motions”, “filing unmeritorious complaints about the professionals involved in the case” and so on (pg. 34). Systems abuse may amount to abuse of process or a vexatious litigant finding – remedies that take significant time and resources. Many tactics are not specifically reflected in the Model Code. Despite abusive tactics being contrary to a lawyer’s professional obligations, the Code is not concerned with the client’s motivations beyond broad and vague categories of “dishonesty” (R 3.2-7) and “dishonourable” conduct (R 5.1-2(b)), or motivations of “malice” (R 5.1-2(a)).

The Roadmap for the National Action Plan on Violence Against Women and Gender Based Violence shows that survivors quickly learn that the legal system they thought would protect them is “another site of violence and trauma” (pg. 73). Heather Douglas found that some victims of systems abuse identified their “perpetrators’ lawyers” as “complicit in legal system abuse” (pg. 95). Survivors may be revictimized by repeatedly having to engage with their abuser through the justice system.

There seems to be little motivation from the profession to prevent or deter situations where an abusive spouse uses a lawyer as a tool of abuse, where a lawyer is morally insulated (their integrity is intact) and their actions are lawful. The theoretical standard conception of the lawyer’s role says that a lawyer is morally insulated from accountability for their client’s actions. The lawyer’s role emphasizes the client’s morality, not the lawyer’s idea of what is right and wrong. The lawyer’s job is to help their client access the law – their legal entitlements.[4] The client is entitled to what the law provides, and often systems abuse includes the discrete exercise of legitimate rights and entitlements, but they are misused. The immorality of the abuse belongs to the client – the lawyer may not even realize the effect if they are untrained in family violence and have not been screening. This could explain why the Model Code does not specifically respond to IPV. The Code is concerned with the lawyer’s integrity. The lawyer cannot participate in a crime and has an obligation to the administration of justice; but they cannot be in a position where they are tasked with deciding what lawful thing the client can or cannot do. Thus, perhaps, the thought is that the Code’s framework is sufficient.

I suspect a contributing factor is because of the gendered nature of IPV. More women are victims of IPV than men. Statistics Canada shows that IPV “affects people from all types of demographic and socioeconomic backgrounds; however, victims are most often women and the violence is commonly perpetrated by men” (FV, pg. 29). IPV is shown to be higher for indigenous women, queer people, women with disabilities, and young women. The type, frequency, and lethality of the violence is more extreme for women (IPV, pg. 8). Rates of physical violence, the threat of violence, and sexual violence are all higher for women than men (FV, pg. 5).

The profession is concerned with the appearance of impropriety, and it is interested in regulating the private abusive conduct of its members; but it appears the profession is less concerned with preventing gender-based violence. There is a distinction between a lawyer’s private life and professional duties in the context of IPV that echoes long-held concerns about the private nature of abuse; however, the public-private divide has been oddly redrawn. By bringing IPV out of the shadows it seems a spotlight has been shined upon IPV perpetuated by lawyers directly, but only in certain circumstances, and not when spotlighting abuse would also reveal its systemic nature and the client’s private conduct.

____________________

* Thank you to Amy Salyzyn for her thoughtful comments on a previous draft of this column.

[1] Thank you to Andrew Flavelle Martin for bringing this case to my attention.

[2] Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline, 5th ed. (Toronto: Carswell, 2009) at 26-26.

[3] MacKenzie, ibid at 26-26.

[4] See generally: Bradley W. Wendel, Lawyers and Fidelity to Law (Princeton, NJ: Princeton University Press, 2010).

Comments

  1. Regarding the concern that “the lawyer may not even realize the effect if they are untrained in family violence and have not been screening”, this suggests that a precondition to lawyers practising family law should be some of the same educational requirements as will be required for those seeking the Ontario FLSP licence.

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