Law Times

Page 4 April 30, 2018 • lAw Times www.lawtimesnews.com Defence lawyer faces discipline LSO launches proceeding against lawyer for 'incivility' BY ALEX ROBINSON Law Times A criminal defence law- yer is facing discipline proceedings after his conduct caused a judge to declare a mistrial in a domes- tic violence trial. The Law Society of Ontar- io has launched proceedings against lawyer Ernest Guiste al- leging he committed profession- al misconduct for comments he made during two trials and for failing to "represent his client" to the "standard of a competent lawyer" in one of the cases. At a trial that started in 2014 and wrapped up in 2015, Guiste made "discourteous and unciv- il" comments about the Crown and its witnesses, according to a notice of application the LSO filed. The law society is also claiming that Guiste made an unfounded allegation of prose- cutorial misconduct in that case, R. v. Ram. Ontario Court Justice Joseph De Filippis declared a mistrial in that case, "because of the failure of Defence counsel to discharge his duties to the client and the Court," the decision said. De Filippis found Guiste failed to meet the standard of compe- tence in the trial, was uncivil and asked "repetitious, irrelevant, and meaningless" questions. "Throughout the proceed- ings, Defence counsel remained uncertain about what issues and witnesses were relevant to his case. Too often, in cross- examination of the complain- ant, he was careless in asking questions and inattentive to the answers given," De Filippis said in his decision. "On a few occasions, he was discourteous. His inappropri- ate allegation of prosecutorial misconduct confirms he failed to properly review his disclo- sure material. He closed his case prematurely and did not an- swer simple questions from the bench." In an earlier case, R. v. Street, the law society alleges Guiste broke its rules by making "dis- courteous and disrespectful" comments to the trial judge. The law society says the lawyer also made uncivil comments about the Crown counsel during that trial. "Your Honour, my friend's being very disrespectful to this witness, and I don't know if it's on account of her race, or what it is, but can you please caution him to [let] her finish her narra- tive?" Guiste said in the trial, ac- cording to the notice of applica- tion. "He just keeps interrupting, and bellowing like he's some big, bad-ass dog or something." Guiste says he believed the matter was "spent and done with" when Ontario Court Jus- tice Carol Brewer acquitted his client in the case. He adds that he has seen the Crown counsel a few times since the incident and that they have greeted each other cordially. "I have always and continue to have great respect and confi- dence in Justice Brewer as a trial judge," he said in an emailed statement. "Justice Brewer did not take issue with anything I said dur- ing the trial before her and she did not have to act for me to candidly apologize to my friend and the court when I recognized the metaphor I employed off-the- cuff to describe Crown Counsel's aggressive cross-examination of the complainant." Lawyers say that judges used to be more interventionist when it came to lawyers' conduct in their courtrooms. But there is now more reluctance on the part of many judges to reign in some behaviour because of the fear of giving grounds of an appeal to an unsuccessful party, lawyers say. "So they're now very careful," says lawyer Harvin Pitch, who is not involved in the discipline matter. "The law society has come into the gap to enforce some de- corum where the judges aren't." Pitch says that while he finds it concerning that the law society has intervened more recently in these kinds of matters, Guiste's case would justify the regulator's intervention if the facts in the notice of application are proven true. He says the kind of conduct alleged in the notice of applica- tion cannot be allowed and that counsel must act civilly to en- sure the public doesn't lose faith in the justice system. "It would detract from deco- rum and the seriousness of the court and bring it into disre- pute," he says. This is not the first time Guiste has faced disciplinary proceedings for accusations of incivility. In 2011, a law society tribunal panel found he had engaged in professional miscon- duct by using "sexually explicit, rude and profane language" in a mediation session during a sex- ual harassment case. The panel also found that he had communicated with op- posing council in a way that was found to be "abusive, offensive or otherwise inconsistent with the proper tone of a professional communication from a lawyer." In the mediation session, Guiste told an opposing lawyer to take an opening offer and "shove it up your ass." At the time of the hearings in the matter, Guiste told Law Times that he had said things he shouldn't have, but that context was important in the determina- tion of whether his conduct was not civil. The panel reprimanded Guiste and required him to pro- vide a written apology. In 2006, the law society also reprimanded Guiste for im- properly commissioning an af- fidavit purportedly sworn by someone else but, in fact, signed by the lawyer. Gavin MacKenzie, of Mac- Kenzie Barristers, says that the incompetence allegation in the law society's most recent notice of application against Guiste is much more serious than the in- civility allegation. He says that both arise infrequently, but in- competence causes much more harm to clients than occasional instances of discourtesy. "That isn't to minimize the seriousness of the allegations of incivility in this particular case, as a groundless accusation of prosecutorial misconduct by a defence counsel should be sanc- tioned if proven," says MacKen- zie, who is not involved in the matter. "Again, it may be viewed as an illustration of the more serious concern of the lawyer's alleged incompetence. Incivility under- mines the effective functioning of the administration of justice and is generally bad advocacy, as it distracts from the strength of whatever arguments can be advanced on the client's behalf." Some lawyers have argued that the law society's attempts to regulate civility in some cases could restrict lawyers' abilities to zealously advocate on behalf of their clients. But MacKenzie says the term "zealous advocacy" is not a part of the LSO's Rules of Professional Conduct, which speak of a lawyer's duty to rep- resent clients "resolutely" while treating others with courtesy and respect. "'Zealous advocacy' is an American expression that should be avoided in Canada," he says. "Zealotry is not a model to which we should aspire." LT – With files from Michael McKiernan NEWS NEWS NEWS The Law Society of Ontario has launched a proceeding against a lawyer after alleg- ing he failed to represent his client to the standard of a competent lawyer. ONTARIO LAWYER'S PHONE BOOK 2018 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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