BARE BONES BRIEFS: LSO panel splits on whether Black Lives Matter criticism is professional misconduct | Firm sues 'underbilling' associates | Remote lawyering: longer hours: CLIO survey | LSO suspends paralegal who cost clients $500,000 | CTA: compensation for passenger applies to all others on same flight

By Julius Melnitzer | March 8, 2023

IS AGGRESSIVE CRITICISM OF BLACK LIVES MATTER PROFESSIONAL MISCONDUCT?

A Law Society Tribunal has split on whether social media posts criticizing Black Lives Matter, Pride Day and public health mask mandates amounted to professional misconduct. Lisa Simone, who was applying for a paralegal license, admitted the posts were “crude, intemperate and shorthanded”.

The panel was unanimous in granting the license because Simone was “currently of good character.” But the panel split 2-1 on whether the posts amounted to professional misconduct.

Panel members Kathleen Lickers and Sabita Maraj noted that Simone had acknowledged that her posts were “inappropriate”. She also acknowledged that her obligation not to “bring disrepute to the profession” properly limited her freedom of expression. The concern was “not with the personal views of Ms. Simone, but rather the tone and language used” and the profession’s special duty to “uphold human rights law in Ontario”.

Philip Horgan concurred in the result but dissented on whether Simone’s posts constituted professional misconduct. Seen contextually and considering Simone’s belief that the posts had limited circulation, Simone’s “aggressive statements” and “inappropriate language” did not rise “to a finding of misconduct.”

“The expression of dissident viewpoints does not amount to misconduct, unless accompanied by something more, such as expression of hatred, or some assertion that may breach human rights legislation,” Horgan reasoned.

FIRM SUES ASSOCIATES FOR “OVERPAYMENT”

North Dakota law firm Larson Latham Huetti’s employment agreement required associates to pay the firm an hourly rate for any shortfall in time worked. Larson Latham sued two former employees who fell short of their quota. The firm succeeded when the state Supreme Court decided that the agreement was not unconscionable.

As Above the Law points out, it’s questionable whether the few thousand dollars at stake merited the firm “showing its whole ass”. The case is under appeal.

CLIO SURVEY: REMOTE WORK IS A MIXED BAG

Two-thirds of lawyers who work from home work longer hours but also claim a better work/life balance, says a survey conducted by legaltech provider Clio. The company told the Law Society Gazette that the findings reinforced the results of its 2022 Legal Trends reports. Those reports found that 86% of lawyers worked beyond 9-5, 74% worked ‘after hours’, and 69% spoke to clients on weekends.

THREE-MONTH SUSPENSION FOR PARALEGAL WHO COST CLIENT $500,000

Acting on a joint submission, the Law Society Tribunal has imposed a three-month suspension on Deborah Hamilton. She provided corporate law advice, which is not permitted for paralegals. Her actions resulted in losses exceeding $500,000 for her clients. Her professional misconduct included acting in a conflict or interest, incompetence, and breaching her confidentiality obligations.

Some might ask: why is she still practising? Apparently, the panel felt bound to accept the joint submission, something a differently constituted panel famously failed to do recently in the case of Toronto lawyer Jeremy Diamond.

CTA FACILITATES COMPENSATION FOR BELEAGUERED AIRLINE PASSENGERS

The Canadian Transportation Agency has ruled that Sunwing must compensate Mickey and Donna Anslow for a six-hour fight delay. The cause of the delay was a frozen and ruptured lavatory pipe. Sunwing admitted that the delay was within its control. The company, however, sought to escape liability on the basis the repairs were necessary safety measures.

In a news bulletin, Ottawa’s Conlin Bedard LLP says the decision is noteworthy for two reasons.

“First, the CTA ruled that its decision concerning compensation under one application would apply to all other claims for compensation by other passengers from the same flight. Second, the CTA ruled that where an air carrier employee’s lack of due care results in a flight being delayed for safety purposes, the delay will be treated as strictly ‘within the carrier’s control’ [which attracts liability] and not ‘within the carrier’s control but … required for safety purposes’ [an exemption that does not attract liability] . . .”

The decision should make it easier for passengers to succeed in their compensation claims under the Air Passenger Protection Regulations,

Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.