Day: October 4, 2017

This Week in Legal Ethics – New Conduct Review Ruling

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LegalEthicsBannerBy Melanie Hodges Neufeld

As I mentioned in a previous post, the fact situation and outcome of Conduct Reviews are published anonymously on the Law Society website in our Conduct Review Database. A Conduct Review is a face to face meeting with a member who is the subject of a complaint that raises conduct issues ‘close to the line’ of conduct unbecoming. The meeting is meant to assist the member identify and accept responsibility for the conduct that caused concern, to learn from the complaint and Conduct Review, and to change their conduct to proactively prevent similar situations in the future. The Conduct Reviews are published to provide guidance to the profession. Below is a recent Conduct Review:

Category:           Threatening Criminal or Regulatory Proceedings
Practice Area:   Civil Litigation
Code:                    3.2-5, 5.2-1
E-cite:                  2017 SKLSCR 3  
Date:                    September 15, 2017

Summary:         

The Member represented a party to a civil claim.  Opposing counsel alleges that in a letter and a phone call, the Member attempted to use a potential complaint to the Law Society as leverage to gain an advantage for his client in a civil claim.

In a letter sent by the Member to opposing counsel, the last paragraph reads:

“I have alerted my client that this may be a matter that I am obligated to report under 6.01(3) of the Code of Professional Conduct although I would only do so with the greatest of reluctance.  I leave it up to your own determination as to whether this is a matter that you should self-report.  The purpose of this letter is to determine if you are prepared to waive and abandon any claim to the benefit of the assignment of the contract contained in the handwritten endorsement on the back page of the accepted Offer.”

Opposing counsel further indicated that the Member, in a phone conversation later the same day, indicated that “if I [opposing counsel] abandon all interest in the transaction he [the Member] nor his client will be reporting me to the Law Society”.  The Member denies this allegation.

The Conduct Investigation Committee determined that the Member’s act of combining, in the same paragraph in his letter, both a reference to reporting a professional conduct matter to the Law Society and seeking abandonment of any claim is injudicious, as a paragraph is intended to be a series of related sentences dealing with a particular point or idea.

Accordingly, the Conduct Investigation Committee recommended a “Conduct Review”. The Conduct Review Committee met with the Member and spoke at length about the events that gave rise to his letter to opposing counsel and, more specifically, about paragraph in issue in that letter.  The Member indicated that the intention was not to barter a Law Society complaint against a claim, but rather to alert opposing counsel to the concerning conduct that could give rise to a complaint and to encourage self-reporting.  The Member acknowledged that the paragraph could be read in a way it was not intended.  In the future, the Member will be more careful in the wording to ensure the intention is clear.