Refusal to change draft order contrary to judge's memorandum also professional misconduct
The British Columbia Court of Appeal has upheld a ruling that a lawyer committed professional misconduct when he refused to correct a draft order despite a judge’s memorandum and transcript showing corrections and filed a contempt proceeding against another lawyer to force a discussion about her complaint against him.
In McLeod v. Law Society of British Columbia, 2022 BCCA 280, the Law Society of British Columbia’s discipline committee issued a citation against lawyer Donald McLeod over several acts amounting to professional misconduct. The complainant was an opposing counsel in a pension division case.
In that case, the summary trial judge had issued a memorandum correcting the terms of a pension order. Despite this, McLeod refused to change the draft order he submitted, even when the complainant obtained a transcript, forwarded a copy to McLeod, and requested that he send a corrected draft order. Instead, McLeod sought an order finding the complainant in contempt of court and disqualifying her on the basis of conflict of interest. The summary judge dismissed both the contempt application and recusal application.
The complainant claimed that McLeod failed to discharge his professional obligation when he failed to correct the record on the start and end date of pension division, by instituting a contempt application against the complainant, and by instituting a recusal application. The Law Society of British Columbia hearing panel agreed.
McLeod appealed the findings, alleging that the hearing panel misapprehended the evidence.
The Court of Appeal partially granted the appeal.
The appellate court found that the hearing panel made no reversible error in ruling that McLeod’s refusal to correct the record without justification constituted professional misconduct. It was open to the hearing panel to find that McLeod was “neither fair nor candid, and effectively did misstate the law by omission,” said the court.
Similarly, the hearing panel made no reversible error in ruling that the institution of a contempt application without intention of pursuing it constituted professional misconduct, said the court. The appellate court found that McLeod stated before the panel that he had no intention of pursuing the contempt application and simply used it to “force the issue” to bring the complainant to a “discussion” and “give the Complainant time to think about her actions.”
However, the appellate court found that the hearing panel committed a palpable error when it failed to distinguish between the contempt application and recusal application. The panel failed to articulate the basis for its conclusion that the recusal application constituted professional misconduct, said the court.
