What's a Lawyer To Do?

http://www.canlii.org/en/on/onlshp/doc/2010/2010onlshp7/2010onlshp7.html


This was a disciplinary proceeding against a lawyer who was found by the panel he appeared before--"the "Panel"--to have known in the midst of a custody proceeding that his client had an "imminent" and "in play" plan to take her child out of the jurisdiction.

The lawyer not long before his client actually left sent his law partner as his agent to speak to an adjournment of the custody case. He did not advise her of the active and imminent plan. She on his behalf merely attended to the adjournment and nothing was told to the court about the plan.

The Panel found it that is was evident that the self represented father--who in fact consulted with duty counsel that day--had two concerns: ultimately getting custody; and ensuring that his child--of very young years--stayed in the jurisdiction, which is to say, Ontario.

The Panel ruled that in these circumstances the lawyer could not betray his client's confidentiality about the plan. His duty of confidentiality, the Panel said, trumped any obligation he might have had to advise the court of the plan.

But what of any such duty to advise?

The mother--his client--had a custody order in an ongoing Child Protection proceeding. That proceeding came as a result of the father's physical abuse towards mother and child and the mother continuing see the father regardless. The order, and a criminal court order, denied the father access. The child protection order also had some reporting requirements for the mother in the county to its Children's Aid Society. Finally, the order contemplated the possibility of the father eventually seeing the child again if he completed certain anger management counselling and such like therapy.

But to make the problem posed by this decision clear, let's stipulate:

1. the mother had a custody order;

2. the father had no right of access--it had been taken away;

3. there was no order in place, and no legal prohibition in place, forbidding the mother from leaving Ontario with the child;

4. the spoken to adjournment by the lawyer's partner was for a stay of the custody proceeding until the Child Protection proceeding ended.

The Panel found the lawyer guilty of knowingly misleading the court:

"Rule 4.01(2) specifies certain conduct that a lawyer cannot engage in when acting as an advocate.

Rule 4.01(2)(e) in particular reads:

"When acting as an advocate, a lawyer shall not...

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct..."

Based on the above stipulations, why did the lawyer mislead the court by not disclosing his client's plan on having the custody case adjournment spoken to? By stipulation here, his client was doing nothing illegal by the plan. If his client had asked the lawyer whether it was legal for her to leave the jurisdiction in the midst of the custody proceeding, by stipulation he would have been duty bound to advise her that it was--there being no order or prohibition stopping her. Her leaving did not end the custody proceeding. The lawyer was duty bound not to disclose to the court, as a matter of confidentiality, the perfectly legal action he knew his client was planning.

The Panel said that once the lawyer knew of the imminent, in play plan, he either needed to get instructions to disclose that plan in some efficacious way or he needed to get an order allowing him to stop acting for his client. (He could have done the latter, the Panel notes, without betraying his client's confidentiality.)

But the Panel, in my reading of its 22 pages of reasons, never provides a principled basis for why the lawyer needed to do anything more than he did in the circumstances.

It may be argued that in maintaining his silence at the adjournment the lawyer was implicitly representing to the court that the custody case was, after the stay, going to continue in the normal course--subject to an intervening, agreed to settlement--with the parties and the child before the court.

But this argument reasons in a circle: it amounts to saying it was wrong not disclose to the court that which was patently lawful because it was wrong not to disclose to the court that which was patently lawful. Which is to say: what is the principle informing the misrepresentation? The argument from misrepresentation does not identify, explain or provide that principle.

The lawyer could appeal one rung up to a panel of 5 benchers.

I'll let anyone reading this know what new comes to my attention.