Lawyer's good-faith statements in court not grounds for professional misconduct: BC Court of Appeal

In a professional misconduct action against a lawyer, a broad range of factors must be considered – including whether impugned statements to the jury in a trial were made in good faith and had a reasonable basis, the BC Court of Appeal has ruled.

In Law Society of British Columbia v. Harding, 2022 BCCA 229, Thomas Paul Harding was found guilty of professional misconduct by a hearing panel of the Law Society of British Columbia (LSBC), based on the closing argument he made in a high-stakes personal injury action. During the hearing, the defence vigorously and repeatedly suggested that Harding’s client was lying about the accident in order to get money. The defence also called an expert witness, Dr. Toor, who likewise insinuated that the plaintiff’s version of the events was not plausible.

When Harding delivered his closing submissions to the jury, the trial judge found it to be too prejudicial to be corrected, resulting in a mistrial. In the judge’s opinion, Harding improperly prejudiced the jury by accusing the defence counsel of making “ugly insinuations,” attacking the defence expert, and mischaracterizing the issues. After the trial, Harding spoke with a journalist and questioned the rules regarding mistrials and juries. This led to a defamation action that was commenced against Harding by the defence expert, Dr. Toor.

The LSBC panel found that Harding’s conduct was a marked departure from the conduct expected of lawyers and, as a result, he committed professional misconduct. On appeal, the court found that the LSBC panel made several errors in its decision.

Closing statements were reasonable, in good faith

Harding argued that the LSBC panel failed to acknowledge the principle in Groia v. Law Society of Upper Canada, 2018 SCC 27, which emphasized that in-court statements made in good faith and on a reasonable basis do not amount to professional misconduct.

The court agreed with Harding that the LSBC panel failed to follow the approach in Groia, which required it to consider a broad range of contextual factors, including whether the statements were made in good faith, on a reasonable basi,s and based on a mistaken understanding of the law and the stakes and burdens of the case. Instead of considering the entire context of the case, the court found that the LSBC relied almost exclusively on the findings of the trial judge in the mistrial ruling.

“The LSBC panel failed to consider that the trial judge’s decisions were based on different factors than the factors relevant to a finding of professional misconduct,” said the Court of Appeal.

The court also emphasized that behaviour that a judge deems as inappropriate may not even rise to the level of professional misconduct. It found that the LSBC panel failed to consider the possibility that Harding’s statements were simply a mistake or ambiguous, and made in a high-stakes context where the lawyer was required to be a resolute advocate to protect his client’s interests.

Out-of court-statements

The LSBC found that Harding’s statements to the journalist were critical of Dr. Toor, the trial process, and the trial judge. Harding, on the other hand, argued that the LSBC panel failed to consider how his statements engaged the value of freedom of expression protected by the Canadian Charter of Rights and Freedoms.

The court found that the LSBC panel misunderstood the substance of Harding’s statements to the journalist and also failed to consider the charter values of expression that were at play.

“The LSBC Panel’s decision did not consider Mr. Harding’s expressive rights, the role of lawyers in holding all justice system participants accountable, or the public interest in being educated about legal matters and debating whether some legal principles should be reformed,” said the court.

The LSBC panel’s findings of professional misconduct were set aside and the matter was remitted for reconsideration.