Nude photos of client’s ex in affidavit earn Alberta family lawyer a reprimand
Sherwood Park lawyer Karen Herrington’s matter also reported to solicitor general for decision on whether a criminal offence was committed
The Law Society of Alberta has reprimanded a family lawyer after she filed an affidavit containing nude pictures of her client’s former spouse.
Karen Herrington, who practises with Sherwood Park firm Strathcona Law Group LLP, only discovered her client had added the explicit pictures to the affidavit at late notice, and did not want to alter the document after it had been sworn by another lawyer.
Still, at her law society hearing, Herrington admitted bringing the administration of justice into disrepute and failing to provide legal services to the standard of a competent lawyer after going ahead and filing the unredacted images as exhibits attached to the affidavit.
LSA counsel wanted a one-month suspension for the offence, but the three-member hearing panel agreed with Herrington’s counsel, who argued that a reprimand was sufficient in the novel circumstances of the case.
“Ms. Herrington appears to be a capable lawyer who made a poor choice,” reads the April 1 hearing committee report on the case. “Ms. Herrington’s actions specifically affected the Wife negatively. Her actions did not affect the public generally. Ms. Herrington has learned her actions were inappropriate and the process of this hearing and a reprimand will deter her in the future. Ms. Herrington does not need to bear the brunt of general deterrence for the sake of the profession. General deterrence can be handled in better ways than making an example of Ms. Herrington.”
However, the panel also concluded that it was obligated to refer the matter to the province’s solicitor general, finding there were “reasonable and probable grounds” to believe that Herrington breached s. 162.1 of the Criminal Code, which covers the distribution of intimate images without the consent of the person depicted.
“Ms. Herrington may very well have a defence but that is not up to our Committee to decide,” the decision reads.
According to the ruling, Herrington was retained by a man in a dispute with his former common-law partner over parenting time with the couple’s two children.
When her client expressed concern that his former partner could leave the province with the children, Herrington drafted an emergency application and affidavit, attaching texts between the parties, but no pictures.
Herrington then sent the draft version to a lawyer closer to her client’s location, and received the sworn affidavit back late in the afternoon the day before her morning appearance in court. The decision says this is when Herrington realized her client had attached screenshots of a different string of texts between the parties, including two explicit pictures of the wife, sent by her to the husband.
After consulting with colleagues and because of the urgency of the situation, Herrington decided to proceed using the sworn affidavit, which she felt showed the pattern of communication between the parties.
According to the LSA ruling, Herrington then obtained an ex parte order preventing the wife from leaving the province, and filed the document in court without redactions because it would be inappropriate to alter a sworn affidavit.
When the wife’s counsel was served with the affidavit, the decision says she demanded its immediate removal from the court record. Counsel for both sides eventually agreed to black out the nude photos, and the wife obtained an order expunging the original affidavit, to be replaced with a redacted version.
“Ms. Herrington has admitted that she should have dealt with this matter differently but being provided an Affidavit that had been altered by her client for an emergency application on short notice put her in a difficult position. She consulted other lawyers in her office for their advice and made this decision to proceed. This does not leave Ms. Herrington blameless but goes to show this was not a simple situation,” the LSA decision reads. “This Committee therefore sanctions Ms. Herrington to a reprimand.”
When it came to whether the issue needed to be reported to the solicitor general, Herrington’s lawyer argued there was nothing criminal about the affidavit, claiming it met the test for the “public good” defence included under the Criminal Code. But the law society panel found that this was beyond its remit, and referred the matter on.
“It is not within the scope of this Committee to determine if Ms. Herrington has a defence to this matter. The Committee only has to decide if there are reasonable and probable grounds to believe that the member has committed a criminal offence,” the panel wrote.
Herrington and her lawyer declined an opportunity to comment for this story.
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