Oct 10, 2019

Lawyer Did Not Breach Code of Conduct by Calling 15-Year-Old as Witness

Harte (Re), 2016 CanLII 73579 (NWT LS)

A Northwest Territories lawyer was called to account before the Law Society based on the allegation that by calling his client's 15-year old son to testify at his client's criminal trial, without advising the child's custodial parent, he breached the Professional Code of Conduct and was deserving of discipline. Harte (Re) 2016 CanLii 73579 NWT LS

The precise charge was that he:

“required [D] to leave school without the permission or knowledge of his custodial parent and that such conduct is deserving of discipline.”

The relevant section of the Code of Professional Conduct states:

2. (1) A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

Commentary 2 regarding this rule states:

[2] Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.

Counsel for the Law Society conceded that the lawyer had not served a subpoena on the child, nor had he subjected the child to any duress, in fact, the lawyer told the child that he was not obligated to attend the trial and that it was up to him. Nonetheless, the Law Society insisted that by arranging the child's attendance at the trial, the Code had been breached.

The facts revealed that an adult women attended at the child's high school and the school authorities permitted the child to leave the school during classes. She also returned him to the school.

The tribunal hearing the case noted that had the lawyer served a subpoena on the child, there would have been no issue, but since he left it up to the 15-year old, he was in the crosshairs of the Law Society.

The Agreed Statement of Facts indicated that the lawyer did not know that the child's mother had custody and the responsibility to make all decisions for the child. The Law Society argued that it was the lawyer's responsibility to ferret out this information from his client. The lawyer argued that he had no legal responsibility to contact the child's mother and the tribunal agreed. The tribunal also found that the lawyer's conduct did not reflect poorly on the legal profession.

The tribunal dismissed the allegation stating:

"...at 15 years old D was apparently able to understand the importance of telling the truth in such an important situation. D was permitted to leave by his school and D had a responsible adult attending with him from school to court and back again. D had some modicum of support during the day, albeit not from B (his mother). While I can keenly appreciate that B, indeed any parent, would wish to have prior notice of her son’s intention to testify, I do not think that the absence of such notice in these circumstances deserves a sanction against Mr. Harte."

Despite his son's testimony the lawyer's client was convicted of sexual assault against his daughter.

Clearly, the "de minimis" behaviour of the lawyer was overreach by the Law Society and the panel noted that the lawyer's first priority was properly the defence of his client and no harm had been caused to the teenager.