Court Cases & Orders

Lawyer Conduct Can Attract Judicial Criticism, Too

Written by Russell Alexander / (905) 655-6335

In past blog posts I have highlighted a few court decisions in which judges have made unusually forthright comments about litigants and witnesses, specifically about their character or credibility.

But I don’t want to leave the impression that it’s only non-lawyers who get this kind of scrutiny; lawyers are often the target of judges’ negative – and sometimes downright scathing – assessments as well.

In another blog this week I provided excerpts from the recent decision in Sri Guru Nanak Sikh Centre Brampton v. Dhadda, where the judge tactfully expressed a profound frustration with both sides of the litigation involving a Sikh temple, writing: “The plaintiff has a long sad history of conflict.  And this just has to stop.”  After levelling sharp criticism at the parties – and in particular the propensity of some of them to lie under oath – the judge turned to some of the lawyers on the case as well.

The judge wrote:

[284]       … Especially when there are allegations of serious misconduct, care must be taken to separate facts from conclusions, and arguments from facts.  …

[285]       This is no small point in a case that seems so incendiary.  Repeat a statement over and over, with sufficient gravity of tone and self-assurance, and perhaps some people will come to believe it is true.  This should not be done from the privileged position that counsel enjoys.  

[287]       There is another point about the defendants’ argument.  Most of their factum does not read as if it was written by counsel.  It is replete with factual assertions that are (a) conclusory; and (b) not referenced to the record.  This creates an enormous burden for the court, and it is not appreciated.  …

[288]       A great deal of the factum can be characterized as an unbounded screed, full of generalizations and conclusions, but light on analysis and evidence.  I could not have said this without a minute review of the record, repeatedly, a far more laborious task than should have been the case.

[289]       The point here is not to scold counsel, who is extremely capable and experienced.  It is to make an advocacy point.  The tactic of leaving the factum devoid of references to the record, and punctuated by sweeping conclusions of fact, has not availed the defendants here.  …

The judge also wrote:

[295]       I cannot refrain from comment on the legal argument as well.  It really bothers the court when experienced counsel mis-state the law.  Citing principles that apply to without notice motions without acknowledging the distinction when the motion is with notice could mislead a judge not familiar with this area of the law.  Citing a Prince Edward Island statute as the law in Ontario could mislead any judge (given that the proper complete citation for the statute was not provided). Included in the defendants brief of authorities was the Court of Appeal decision in Farmers’ Mutual Insurance Company v. Pinder.  The case was not cited in the factum.  … I am sure that my legal horizons have been expanded by reading this decision, for which, surely, I must be grateful.  But it has nothing whatsoever to do with the case before me.

Similarly, in a criminal case coming from Nova Scotia called R. v. S.C., the judge was asked to review in detail whether the accused’s lawyer had properly represented his client at the criminal trial.  After receiving the expert opinions of noteworthy legal experts (including a professor) on the standards of practice expected of lawyers, the judge said:

67     I have considered the performance of counsel, mindful of the deference that I must show towards the subject counsel’s handling of this matter and the onus on the appellant.

69     … I agree with Professor Lockyer and counsel for the appellant, Mr. Pink, that defence counsel’s performance in numerous aspects of this defence is questionable.

70     Defence counsel says that he had developed a “theory of the case”, but there is little to show that the defence was an organized effort. …

72     I noted that Judge Prince in his oral decision described the cross-examination of the complainant as “vigorous” so that it might have seemed better at trial than the transcript suggests, however “vigorous” is not synonymous with organized and accomplished.

73     Counsel’s direct examination of his client was not successful. In the end S.C. did little more than deny the accusations.

75     Defence counsel’s argument at closing was, as Professor Lockyer suggests, disorganized and ineffective. In fact, Mr. Hirtle [the lawyer himself] acknowledged that “there are better closing arguments than I gave”.

102     I am satisfied that trial counsel’s incompetence that I have found in this matter is such as to create a “reasonable probability sufficient to undermine confidence in the outcome”.

103     Having so found I direct that the charges in this matter be sent back to the Provincial Court for retrial.

104     My findings as to counsel’s competence are, of course, specific to one trial and should not be taken to reflect on his general capability.

Despite these pointed illustrations, it seems that Canadian decision-makers may nonetheless be more reserved in their criticisms that some U.S. judges.

For example:  In a U.S. abortion-rights case called Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, M.D., the main question was a law forcing pregnant women to have a pre-abortion ultrasound (and to listen to the fetus’ heartbeat) was constitutional.   Various pro- and anti-abortion groups sought the court’s permission to intervene in the case, and to file their own materials in support of their various positions.  In this context, Judge Sam Sparks of the Unites States District Court for the Western District of Texas wrote:

[T]he Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did those things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilities, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

For Mr. Parker’s sake, and because the Court has no time to hold a sanctions hearing –- in part because it must take time out of deciding the actual legal issues in this case to address the self-serving entreaties of attention-seekers like Mr. Parker –- the Court assumes Mr. Parker is as incompetent as he appears. Rather than sanction him, the Court simply does what Mr. Parker would have done if he was a competent professional, and seals attachment 7 to his motion.

This is all interesting reading, but what’s the bottom line here?   Simply this:  If you have a legal matter, get a good lawyer.

For the full text of the decisions, see:

R. v. S.C. [2005] N.S.J. No. 541

Sri Guru Nanak Sikh Centre Brampton v. Dhadda, 2012 ONSC 716 (CanLII)

Texas Medical Providers Performing Abortion Services, et al. v. David Lakey M.D., Case No.A-11-CA-486-SS

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.