In Histed v. Law Society of Manitoba, 2021 MBCA 70, the appellant, a lawyer, (the “Lawyer”) appealed his conviction by a Discipline Panel (the “Panel”) of the respondent (the “Law Society”) of four counts of professional misconduct. The charges arose from the Lawyer’s representation of a client, B.J., on a domestic assault charge in relation to B.J.’s girlfriend, K.F. A condition of B.J.’s judicial interim release was a no contact order with the K.F. (the “NCO”).

On September 5, 2014, the Crown wrote to the Lawyer indicating that she was prepared to accept a guilty plea to the lesser charge of assault causing bodily harm. The Crown also requested that the Lawyer advise his client to cease having contact with K.F., as such behaviour amounted to a possible obstruction charge.

On September 10, 2014, the Lawyer responded to the Crown asking for her consent to vary the NCO. The Lawyer indicated that K.F. was continuing to contact B.J., who was concerned that K.F. was imminently going to commit suicide. The Crown responded that she was not prepared to relax the NCO. The Lawyer responded that he had communicated this information to B.J. who was convinced that K.F. would commit suicide.  He requested that the Crown ask Victim Services to take all possible measures to protect her.

K.F. broke off contact with Victim Services in September 2014, but maintained contact with B.J. Tragically, on October 23, 2014, she took her own life.

Following that time, the Lawyer made prosecutorial misconduct allegations against the Crown and the Assistant deputy. The Lawyer alleged (i) that the Crown caused the suicide of K.F. by refusing to vary the NCO, (ii) that the Crown committed extortion in the course of an offer to plea bargain and by allegedly threatening to charge B.J. with obstruction of justice, and (iii) that the Assistant Deputy complained to the Law Society to defeat the course of justice in B.J.’s trial (the “allegations”).

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The Panel Did Not Err in Finding that the Lawyer’s Conduct was Uncivil Such That it Amounted to Professional Misconduct

Spivak J.A. held that the Panel correctly adopted the approach articulated by the Supreme Court of Canada in Groia (para 54).

Spivak J.A. held that the allegations directly impugned the integrity of the Crown and the Assistant Deputy, and struck at the core of their professional obligations. The Lawyer’s attacks were personal and disparaging of their characters. The allegations were made multiple times and in stronger language as time progressed. (para 86). The cumulative impact of repetitive, unfounded, serious personal attacks using unnecessary invective and a disrespectful tone, was uncivil and amounted to professional misconduct (para 87).