Edmonton lawyer’s suspension for criticizing judge upheld by LSA appeal panel
Tone, language and delivery of veteran defence lawyer’s letter ‘crossed the line’
An Edmonton lawyer breached the Law Society of Alberta’s Code of Conduct when he criticized a prosecutor’s appointment to the bench, a disciplinary appeal panel has ruled.
Criminal defence lawyer Naeem Rauf told his original LSA hearing that he felt duty-bound to write a four-page letter railing against the appointment of Justice Avril Inglis – a former Crown prosecutor – ahead of her swearing in at the Alberta Court of Queen’s Bench, and that his right to free speech should immunize him from disciplinary action.
But an eight-member appeal panel has now confirmed the original hearing committee’s decision to find him in breach of the code, noting that while lawyers have freedom of expression, “it is not absolute.”
“Mr. Rauf was entitled to hold and express his opinions. He was not entitled to express them in the manner he did,” the appeal ruling continued. “The Hearing Committee had ample evidence to find that Mr. Rauf wrote the Letter in bad faith to lash out at a lawyer, now appointed judge, that he disrespected. He intended to attack [the judge’s] character and the appointment process.”
“Although allegations of prosecutorial misconduct inherently involve strong statements, Mr. Rauf’s tone, language, and delivery crossed the line. Mr. Rauf breached each of the Rules set out in the single citation. His criticisms were neither made in good faith nor were they expressed with dignified restraint. This was conduct deserving of sanction.”
According to the ruling, Rauf’s letter labelled the judge’s appointment a “disgrace,” claiming he had rarely encountered counsel “more ethically challenged,” and that he found it “almost laughable” that she would be referred to as honourable when he found her “anything but honourable.”
Rauf also referenced five incidents that occurred during his many interactions with the judge during her time as a prosecutor, which he considered improper. These included misrepresentations or errors respecting evidence, alleged improper questioning of a witness, misstatement of law at a preliminary inquiry and argument made to a jury that should have been directed to the judge.
The decision says Rauf – a veteran defence lawyer with more four decades in practice at the bars of Ontario and Alberta – initially sent his letter to the Edmonton Journal in September 2016, but took matters into his own hands when they did not publish it, distributing the text to lawyers and colleagues, as well as leaving copies in the courthouse cafeteria.
The Associate Chief Justice of Alberta referred the incident to the LSA for investigation, commenting that he considered the communication “entirely inappropriate,” and its manner of public distribution “particularly egregious.”
In his appeal, Rauf objected to the hearing committee’s finding of bad faith, arguing that they failed to take into account his bona fide belief in his criticism or engage with his five specific accusations against the judge.
However, the appeal panel noted that Rauf’s failure to complain contemporaneously about the judge’s alleged misconduct as a prosecutor was a barrier to its investigation. It would not have been proper to put the judge on trial, the panel continued, and even if the accusations did give Rauf a reasonable basis for his views, that did not give him a free pass to say what he wanted.
“Whether Mr. Rauf believed the statements made in his Letter or not, it was reasonable for the Hearing Committee to conclude the Letter was written in bad faith,” the ruling reads. “The underlying element of bad faith here was grounded in the ample evidence of animus in the Letter itself. This evidence was then amplified by Mr. Rauf himself through his response to the complaint and through his contradictory evidence in the hearing.”
Rauf did not appeal his original penalty – a suspension of seven days – and the appeal panel said he would also have 12 months to pay around $23,500 for the costs of the appeal hearing.
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