Law Times

Law Times • February 1, 2016 Page 3 www.lawtimesnews.com NEWS Lawyer facing discipline for internal e-mails BY NEIL ETIENNE Law Times A lawyer who has raised eyebrows with some choice words directed at the Law Society of Upper Canada's disciplinary tribunal in the past is now de- fending against allegations of unprofessional misconduct and abusive behaviour for a series of e-mails exchanged with two other lawyers. The LSUC alleges that after taking on a client in a civil mat- ter from former representatives Sue Kim Chen and Bois Wilson, Toronto lawyer Paul Robson ex- changed a series of e-mails with them on dates between October and November 2013 that were abusive, offensive, or otherwise inconsistent with the proper tone of professional communi- cation from a lawyer. In his defence, Robson's counsel Richard Watson argues a number of points, including that the e-mails were private cor- respondence between lawyers, never intended to be made pub- lic. He argued that while some e-mails from Robson stated things such as "unlike some law- yers involved with this file, I act pursuant to client instructions" and "I have found Ms. Chen to be utterly vulgar in my dealings with her" or "I will not entertain further email correspondence from you," at no point did they reach a level of abusive or offen- sive language and do not broach incivility. He said the e-mails amount to a private heated e-mail conversa- tion over disbursements and that Robson was only responding to heated e-mails in kind. "You have to be very care- ful with that inner ear and with what tone you read the e-mails," Watson told the tribunal. In making his opening ar- guments to the tribunal panel — chaired by Raj Anand and rounded out by Suzanne Clem- ent and Joanne St. Lewis — Wat- son said the tribunal will be tasked with better defining the specifics of what constitutes "of- fensive and abusive" behaviour as it pertains to e-mails. It's a form of communication that he says "leads to more mis- understandings than any other form of communication." Watson argued that the e- mails were exchanged over a short period of time, on a week- end, and during non-work hours when both sides of the matter were feeling tense over a dispute on disbursements. Chen had been counsel for clients (pro- tected under a publication ban) in a civil matter and dissolved the professional relationship. Robson was then retained by the clients and he sought to receive the case file from Chen. Chen requested he pay her disbursements of ap- proximately $42,000 first and she would then provide the full file, and this led to the argument between counsel through e-mail, Watson described. He added the e-mails contained no direct at- tacks of the fellow counsel, and nothing sexist or racist. They also did not include any cursing, all of which would potentially broach on incivility. "The most problematic part of e-mails is expression of things like sarcasm," Watson argued on Robson's behalf, saying the read- er of an e-mail injects the tone and what one person might read as humorous or lighthearted might be seen as offensive or an attack by another. "The words . . . come nowhere near abusive or offensive." For its part, LSUC counsel Elaine Strosberg argued that it is a straightforward case, relying on the affidavit evidence of the e- mails that she argued did rise to the level of abusive and offensive. She said even though the e-mail exchange was a conversation between counsel, Robson held no "lesser duty" to be civil to his peers. "It may not be the worst ex- amples of incivility," Strosberg said, adding, however, that it was a disrespectful and abusive ex- change that required some form of reprimand from the LSUC. Following the first two days of the hearing, Watson told Law Times he sees it as an important case in better determining what constitutes unprofessional com- munications and incivility out- side of a courtroom, especially as it relates to the newer technology of e-mails. "Right now it is still very wide open," Watson says. "The LSUC and other professional commen- taries are full of general banali- ties and bromides, but they all lack the real detail that would give lawyers practical guidance." The LSUC tribunal hosted two days of conduct hearings Jan. 21 and 22 and have sched- uled three more days in late May and early June to deal with the matter. In June of 2015, Robson won an appeal of a ruling revoking his licence to practise for con- duct unbecoming during a sepa- rate civil matter. He failed in a bid for $750,000 in costs for his appeal and wrote a letter to the tribunal's appeal division after the ruling was released. In that letter, Robson wrote: "You as an SRO currently operate as a turd" and later "A stinking giant hypo- critically conf liected [sic] turd at the intersection of Queen and Uniisity [sic]." He was not further disci- plined for that letter but provid- ed similar commentary to the Law Times following the first days of his hearing. "The Law Society is doing its very best to shut me down for improper and completely groundless reasons other than 'we are the Law Society of Up- per Canada and we are above the Law,'" he said. "They are say- ing that they need to protect the public from me while they are public plague, a raging cancer. "They thrive at the intersec- tion of Vile and Vomit and no one seems to be paying attention lest they have been abused by them," Robson said. LT The most problematic part of e-mails is expression of things like sarcasm. Richard Watson Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Emond_LT_June15_15.indd 1 2015-06-10 2:47 PM Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 20 June 15, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski page 2 PM #40762529 & $#&!& jmmm$cYa[bbWh$Yec June 15, 2015 L AW TIMES Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Emond_LT_June15_15.indd 1 2015-06-10 2:47 PM Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 20 June 15, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover the latest news and benefi t from expert commentary for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issues a year covering Ontario's legal landscape • FREE digital edition and unlimited online access to past issues • FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! To place an order please call 416.609.3800 or 1.800.387.5164 Order online at: www.carswell.com/product-detail/law-times-print-digital *Plus applicable taxes @lawtimes Contact us for more information: Canlawyer.lawtimes@thomsonreuters.com | 416.609.3800 | 1.800.387.5164 Access a free preview at: bitly.com/CanLawyer-FreePreview

• Cover