Curtis, Re, 1993 CanLII 1183 (ON L.S.D.C.)

Law Society of Upper Canada Ontario Discipline Committee

 

 

IN THE MATTER OF the Law Society Act, AND IN THE MATTER OF Carole Curtis of the City of Toronto, a Barrister and Solicitor

 

 

T. Bastedo, Chair; S. Goudge and H. Sealy

Heard: August 16, 17, 18, 19, 20, 24 and 27, 1993 Report and Decision: September 29, 1993

Appearances: Tamra Mann, for Bonnie Scott, intervenor. Joyce Harris, Kim Beatty, for the Society. John I. Laskin, Robyn Bell, for the solicitor.

By a Complaint sworn on the 25th day of March, 1993, by an Assistant Secretary of the Law Society of Upper Canada, it was alleged that there were reasonable and probable grounds to believe that Carole Curtis ("the Solicitor") was guilty of professional misconduct. In the specific and complete wording of the Complaint:

"3. To identify the professional misconduct alleged to have taken place, the following particulars are provided:

a) In the period from April, 1990 to April, 1991, Carole Curtis brought the administration of justice into disrepute in circumstances set out below:

i) After Carole Curtis agreed to act for a client on an appeal and on a motion to stay all order dated January 29, 1990 ("the Court Order") by which His Honour Judge Fitzgerald awarded custody of a child to her father and ordered the client, the mother, to surrender the child on April 28, 1990, and after new evidence came to light between January 29, 1990 and April 28, 1990 suggesting that the child may have been sexually abused by her father during all intervening access visit, Carole Curtis wrote.a letter to Lorna Rudolph, the trial lawyer for the client, dated April 17, 1990 in which she stated, among other things:

"Your client should seriously consider not allowing this child to he transferred to her father on 28 April, 1990. We appreciate this is a very serious step and will put her in breach of a Court Order. We strongly urge that she not disappear with the child but that rather, she keep the father advised at all times that the child is safe. However, if there is any likelihood that he will attend with the police and a certified copy of the Order, then she should not be at her home."

ii) After the client went into hiding with the child, on or about April 27, 1990, Carole Curtis failed to counsel the client to come out of hiding and cure her contempt of the Court Order until on or after March 22, 1991 despite the fact that, on at least two occasions, Carole Curtis was in contact with the client, both directly by a telephone conversation between them on or about July 19, 1990, and indirectly through a telephone conversation between Carole Curtis and Debbie Cantrell, a social worker, who also acted for the client, which took place in or about the end of July, 1990;

iii) During the conversation between Carole Curtis and Debbie Cantrell, referred to above, Carole Curtis advised Debbie Cantrell to counsel the client that the client should obtain false identification papers for herself and the child;

iv) During that same telephone conversation between Carole Curtis and Debbie Cantrell, referred to above, Carole Curtis advised Debbie Cantrell of a source from whom false identification for the client and the child could be obtained.

The Discipline Committee heard evidence and received submissions from August 16 through August 20, 1993 inclusive, and on August 24 and August 27, 1993. The Committee was composed of Thomas Bastedo, who is certified by the Law Society of Upper Canada as a Specialist in Family Law, Stephen Goudge, who is certified by the Law Society of Upper Canada as a Specialist in Civil Litigation, and Hope Sealy, who is a lay Bencher. The relevance of the composition of the Committee is discussed further in these Reasons. The Law Society of Upper Canada ("the Law Society") presented various particulars of aspects of the Solicitor's conduct, or alleged conduct, which in its submission constituted professional misconduct. The Committee has carefully considered each particular circumstance, and was presented with a complete and unrestricted overview of all of the circumstances. In the result, for all of the reasons which are set out below, the Committee has come to the conclusion that the Complaint has not been proven to its satisfaction. In discharging its functions, the Committee has had specific reference to the guidance set out in RE Stevens and Law Society of Upper Canada reflex, (1979) 55 O.R. (2d) 405 Ont. Div. Ct.

Factual Outline

The particulars in the Complaint centre about issues relating to custody of, and access to, Vanessa Scott. Vanessa was born on January 6, 1987. The resolution of the issues relating to custody and access has not yet been completed, and in fact a trial is scheduled to occur relating to these issues in Sault Ste. Marie in October, 1993. The trial judge at that hearing will determine what is in the best interests of Vanessa. In these discipline proceedings, every effort has been made by the Committee to deal only with facts and issues centrally and integrally related to the Complaint, and we emphasize that there is no inference to be drawn from these Reasons that we express any view whatsoever as to the issues relating to Vanessa.

Approximately six months after Vanessa was born, Vanessa's parents, Bonnie Scott and Michael Scott separated by Bonnie Scott's leaving the home. Shortly thereafter, she commenced proceedings in Sault Ste. Marie where she and Michael Scott were then living, and these proceedings were defended by Michael Scott. In May, 1988, Bonnie Scott moved to Dryden, Ontario with Vanessa. In due course, the matter came on for trial in Sault Ste. Marie before the Honourable Judge P.S. FitzGerald. At the time of the trial, Vanessa was living with her mother. The trial took place in December, 1989, and on January 29, 1990, the court delivered its reasons, the reasons being formally released in writing on February 15, 1990. Insofar as they are relevant to this Complaint, the judgment provided that Michael Scott was to be given custody of Vanessa effective the 28th of April, 1990. He was to be given access on two occasions prior to that date, once for about a week in February and once for a period ending the first week of April. After the 28th day of April, various access was to be provided to Bonnie Scott. It had been a consistent position of Bonnie Scott's put forward as early as November, 1987 that her husband was not to have unsupervised access to Vanessa, and from that date forward to the trial, and through it, she alleged, in both specific and general terms, that Michael Scott had sexually abused Vanessa. These allegations were rejected by the trial judge. The allegations at all times had been clearly and vehemently denied by Michael Scott. The case was appealed, and in September, 1991, the case came on for argument in the Court of Appeal. By reasons released on the 4th day of October, 1991, the appeal was allowed insofar as custody and access was concerned, and a new trial was ordered. It is that trial which is scheduled to take place in October, 1993. A complaint as to the solicitor's conduct was raised in October, 1991, and on March 1, 1993 the Solicitor was advised that discipline proceedings were authorized against her. The time period of importance for the events surrounding the Complaint is between the end of January, 1990 and the spring of 1991.

In delivering the reasons of the Court of Appeal, Mr. Justice Holden set out, for the Court, five different errors by the trial judge which "necessitated" the granting of a new trial. The first dealt with the evidence of Mary Craig, a social worker employed by the Kenora-Patricia Child and Family Services at Dryden. Mary Craig was an independent witness called by the mother to support her allegations of sexual abuse. The learned trial judge criticized Mary Craig's report for "grossly misquoting" Dr. Vann's report and clinical notes. Dr. Vann was a physician from a clinic in Dryden who had examined the Child shortly after the visit with her father. Mary Craig had stated in her report chat Dr. Vann's report expressed that there was evidence of some trauma to Vanessa's genital area. The learned trial judge stated that the report in fact was "to the contrary". The Court of Appeal observed that this statement was wrong. The report of Dr. Vann was not to the contrary; rather, it corresponded exactly with what Mary Craig had stated in her report. This clear error (which was conceded on appeal by counsel for the father) obviously caused immediate concern to Bonnie Scott and her trial counsel when the reasons were released and it was immediately decided to appeal Judge FitzGerald's Judgment even before the written reasons were actually released. On February 2, 1990, Bonnie Scott applied to Legal Aid for a Legal Aid certificate to enable her to retain a solicitor for the appeal. On February 6, 1990, Lorna Rudolph, Bonnie Scott's Sault Ste. Marie trial counsel, and an experienced family law lawyer, spoke to the Solicitor on the telephone about the case seeking appellate counsel.

Submission of Tamra Mann. Counsel for Bonnie Scott

Tamra Mann, a member of the Bar of this Province, was retained by Bonnie Scott and brought a motion returnable at the opening of the Committee hearing for sundry relief, and her submissions were heard by the Committee. She asked that the hearing be adjourned until after the conclusion of the custody trial. Alternatively, she sought to have the hearing or part of the hearing held in camera, and leave to cross-examine such witnesses as she wished. The counsel for the Society and for the Solicitor joined in urging that the charges proceed to be heard expeditiously. After hearing submissions by all three counsel on all matters raised, the Committee decided that it was clearly in the public interest to proceed as expeditiously as possible, and accordingly, dismissed the motion for adjournment. Ms. Mann was given the right to make submissions at any time, on virtually any matter, and was given the right to renew portions of her Notice of Motion as she deemed advisable when she deemed appropriate. Ms. Mann did put forward submissions at the conclusion of the evidence and in those submissions asked the Committee to reserve its decision until after the custody trial, or alternatively, to give its decision and to release its reasons at a later date. The Committee decided that it would not be in the public interest to accept either of these submissions and stated at that time that it would proceed to deliver reasons as soon as practicable. The Committee was also of some doubt as to whether the trial would in fact proceed as scheduled on October 12th, because of public commitments which Ms. Mann had made and which might interfere in her representation of Bonnie Scott at the trial. However, we are grateful to Ms. Mann for bringing forcefully to the Committee's attention the interests of Bonnie Scott and more importantly the Child in securing a fair and expeditious trial. For these reasons, we make every effort to refrain from commenting on any matter or reviewing any of the evidence which is not essential to dealing with the complaints brought forward by the Society.

The Solicitor

The Solicitor has a Bachelor's Degree from the University of Toronto which she obtained in 1973 and was called to the Bar in Ontario in 1978. She has carried on her own practice since 1979, and has practised family law exclusively since 1983. She described her practice as a "grass roots family law practice", as a "feminist practice", and as one which was "very committed to clients generally, and even more so to Legal Aid clients". A very substantial portion of her clients are women, and a substantial portion of her clients are retained by her on Legal Aid certificates. She has had much experience in custody cases generally, and cases involving sexual abuse in particular. Both areas of law she described as "specialties". Filed as an exhibit to these proceedings was a brief containing more than forty letters of reference written by members of the judiciary, both active and retired, lawyers employed in the public service, family law lawyers and lawyers practising in areas other than family law. All of these letters state without qualification that the Solicitor is known in the legal community for her honesty, integrity, and for practising with the highest professional standards. As well, an additional fifteen letters or so were written giving character references of the highest order by lay persons. This reputation is not in any way contested by counsel for the Society. An example of her peers' view of the Solicitor's reputation in the legal community which also combines a description of her practice is as follows:

"Carole's reputation in the profession, to the best of my knowledge, is outstanding. Not only is Carole known as an advocate who will tirelessly work on behalf of her clients, she is known to work for women in particular who many lawyers would not consider representing. I am aware that many of the women that Carole works for can at times be difficult clients because of their history of abuse, either in childhood or marriage, their poverty or their alienation in our society. Carole is prepared to represent these women most forcefully and relentlessly. If it were not for Carole Curtis and a very few other family law lawyers, in my opinion, many of these women would go unrepresented. I have never heard anyone say anything negative about Carole's integrity in acting on a file. I have never heard anyone Say that they did not respect her ethics or her commitment to her clients.",

a reference provided by Nancy Mossip. Nancy Mossip is a former Chair of the County and District Presidents' Association, the immediate past Chair of the Family Law Section of the Canadian Bar Association - Ontario, and the current Chair of the Certification Program (Family Law Specialty Committee) of the Law Society. The Solicitor was emphatic in her statements that she was most effective for her client when she and her colleagues "played by the rules". She viewed her ethics as "rigid". Finally, she stated that she had had a lot of experience in the Court of Appeal.

In addition to her reputation in the legal community as a practising lawyer, the Solicitor has contributed as much as any practising lawyer in the family law bar over the last decade to her profession. She has been active in teaching, presenting papers, serving on a great variety of committees, and was elected a Bencher of the Law Society in 1991. She was honoured by the Canadian Bar Association for her work by being presented with its Award for Distinguished Service in December, 1988.

The character evidence which was tendered in written form by agreement between counsel for the Solicitor and counsel for the Society, is of significant importance. The use and relevance of character evidence was recently reviewed by the Court of Appeal in this province in Regina v. Profit reflex, (1992), 11 O.R. (3d) 98. Speaking through Mr. Justice Goodman, the court there stated that:

"The law is well settled that character evidence is admissible on a two-fold basis: 1) in support of the credibility of the accused; and 2) as the basis of an inference that he is unlikely to have committed the crime." (p. 105)

The Committee will return to this evidence at a later point in these Reasons.

The Events of February 2 - April 28 1990, and the Particulars Set Out in Paragraph 3 (a) (i) of the Complaint

On February 6, Lorna Rudolph had a telephone discussion with the Solicitor which lasted forty-five minutes. The Solicitor agreed to undertake the appeal, subject to Legal Aid approval. She stated that she was really interested in the case, Lorna Rudolph appears to have fully informed her about the trial, and about the trial judge's reasons. In particular, the Solicitor accepted that Lorna Rudolph believed Ms. Scott, and that the Child had been sexually abused. She was informed that the trial judge had misread a medical report, and that Ms. Scott had annoyed the judge and that the judge had thought that the Children's Aid Society worker had been lying. The Solicitor said that she was impressed with the disclosures of the Child and in summary had a strong negative reaction to the reasons (which of course had not yet been released), and was indeed shocked by them. It was agreed that Lorna Rudolph would do the Notice of Appeal. The documents passing between Lorna Rudolph and Legal Aid support our assessment of the evidence that at this time there was no discussion about a stay, and that a Legal Aid application had been made simply to appeal the judgment of the Honourable P.S. FitzGerald. It was in this form that the Legal Aid certificate was issued on March 16. On February 22nd, a copy of the Notice of Appeal and a copy of the reasons for judgment were forwarded by Lorna Rudolph to the Solicitor. On March 26th, Lorna Rudolph forwarded to the Solicitor medical reports, clinical notes and other expert evidence which had been introduced as exhibits at the trial.

On March 27th, another telephone conversation took place between Lorna Rudolph and the Solicitor. in this telephone conversation, Ms. Rudolph reported to the Solicitor that after the first post-trial access period with her father, Vanessa showed evidence of further sexual abuse. New disclosures had been made by the Child which in the opinion of Bonnie Scott amounted to a clear indication that sexual abuse had occurred. It was then decided as between Ms. Rudolph and the Solicitor that it would be advisable to bring a motion to stay the provisions of the Order of the Honourable Judge FitzGerald, and that this motion for stay would take place before the transfer date for custody which was to be on April 28, 1990. Ms. Rudolph was to prepare the draft Notice of Motion and Affidavit. All of this advice was summarized in the correspondence dated March 27 from the Solicitor to Ms. Rudolph as was the agreement that Ms. Rudolph would prepare the draft Notice of Motion and Affidavit. in that letter, the Solicitor indicated that she would be away from April 26 to May 9, 1990, and advised Lorna Rudolph to inform the lawyer for the husband and for the Child of the proposed course of action. The Solicitor remained concerned about her not having received the Legal Aid certificate, and she refused to go on the record until she had received it. The original legal aid certificate was received by the Solicitor on April 9. The Solicitor was advised on April 10 that it would be amended to authorize the application for a stay, and the Solicitor received this authorization on April 18, 1990.

On March 28, the Solicitor received a telephone call from Debbie Cantrell. Ms. Cantrell was a person who had had a long involvement with Bonnie Scott. She gave evidence at this hearing. She clearly has special expertise in sexual abuse and its related problems, and in addition was a trained Children's Aid Society worker who had had much experience ink court. She told the Solicitor during this conversation that she was a "good witness". In any event, she informed the Solicitor that she had evidence which had not been presented at the trial which would be useful. The Solicitor formed the opinion that it was essential to obtain from Ms. Cantrell information and material which she could incorporate into an affidavit, and Ms. Cantrell informed her that she would get it in two weeks. It was clear to the Solicitor that Ms. Cantrell believed that the Child had been sexually abused.

On April 17, another telephone conversation took place between Ms. Rudolph and the Solicitor, Ms. Rudolph reported to the Solicitor yet further evidence which she concluded was evidence of continuing sexual abuse on the second post-trial access, and the Solicitor concurred. By this point in time, there was therefore, in the opinion of Ms. Rudolph and the Solicitor, and certainly in the opinion of Bonnie Scott, ample evidence to support the allegation that there had been sexual abuse by the father subsequent to the release of the reasons by the Honourable Judge FitzGerald. The Solicitor stated that she and Ms. Rudolph talked at length, and it was agreed between them that there would be a change in strategy based upon the assumption that there had been a material change in circumstances because of the new evidence (since the custody trial) relating to the alleged sexual abuse. The Solicitor and Ms. Rudolph discussed a complete set of options, and canvassed a number of avenues which all had as their objective the intervention of an authority structure (police, Children's Aid Society, court and so on) which would have had the result of preventing immediately the,transfer of the Child to the father. One of these options was the conclusion that Ms. Rudolph should bring a variation application as soon as possible. This decision was made, and the variation application was in fact brought immediately. It was dated April 18, served on April 20th and made returnable on April 25th. As far as the Solicitor was concerned, the stay became a fall back position, and she testified that Lorna Rudolph did not expect her to bring on the stay before the transfer. Ms. Rudolph stated that she could not recall the solicitor providing her with a reason as to why the stay motion did not proceed. Considering the course of action commenced by Ms. Rudolph, in that she contacted the Children's Aid Society, notified the solicitor for the Child promptly that she was going to bring an application to vary the Order of Judge FitzGerald, and her prompt actions in serving the solicitors for Michael Scott with the appropriate papers, all emphasized that the immediate focus of both solicitors was the safety of the Child and the commencing of the various measures set out in correspondence by the Solicitor to Ms. Rudolph including the variation application.

Following the telephone discussion, the Solicitor wrote a letter to Ms. Rudolph. In particular, 3(a)(i) of the Complaint is excerpted from the letter. The letter in full is reproduced as follows:

"Carole Curtis, B.A., LL.B. Barrister and Solicitor 288 Jarvis Street Toronto, Ontario M5B 2C5

Telephone (416) 340-1850

17 April, 1990

SENT BY FACSIMILE TRANSMISSION ONLY

Lorna Rudolph Barrister and Solicitor 182 March Street Sault Ste. Marie, Ontario P6A 2Z7

Dear Ms Rudolph:

Re: Bonnie Scott - Appeal

Further to our telephone conversation this morning, as we indicated to you, we are suggesting the following path with respect to the new disclosure from Vanessa Scott:

1. Contact your client's local Children's Aid Society immediately. As we indicated to you, we suggest a fairly tough stand with them. Also we suggest you confirm in writing exactly what happened and what was disclosed to them, when, and by whom. It may be relevant in the future to insure that you have a record of your dealings with them.

Also, it is important for you to get a specific answer from them on exactly what they intend to do. This child is disclosing recent evidence of abuse in the context of a custody Order made putting her in the custody of this man in approximately 10 days. Why aren't they starting a protection application and apprehending the child (that is, if custody changes on 28 April, 1990). You need a very specific answer to these questions.

2. Advise the lawyer for the child by telephone of what is going on, and ultimately, confirm it in writing. Further, it may be appropriate to copy the lawyer for the child with the correspondence you have with The Children's Aid Society.

3. Your client should seriously consider not allowing this child to be transferred to her father on 28 April, 1990. We appreciate this is a very serious step, and will put her in breach of a Court Order. We strongly urge that she not disappear with the child, but that rather, she keep the father advised at all times that the child is safe. However, if there is any likelihood that he will attend with the police and a certified copy of the Order, then she should not he at her home.

That seems unlikely since, to our knowledge, the Order has not been issued and entered. It is imperative that you issue and enter the Order immediately, whether we proceed with an appeal, a stay motion, or a variation.

4. You should be advising the husband's lawyer, as soon as possible, that you have advised your client not to allow any further contact, including no access and no change of custody. You should also advise him in writing of the reason for that step, and of the proceedings you will be commencing.

5. You should be bringing an immediate motion to vary the terms of the Divorce Judgment. As we indicated to you, this is clearly an issue for a variation, as this new episode is a material change in circumstances. Your Affidavit material should set out in detail what has happened since the Judgment. In our view, that is all that should be in the Affidavit material, although you might consider preparing a supplementary Affidavit to file which sets out what happened before the Judgment was rendered. in case that the Judge hearing this motion wants that information.

6. Also, we suggest that you ask for an interim Order varying the Divorce Judgment prohibiting all contact between the child and her father, whatsoever, at the very least until a further investigation is done.

7. Have you considered contacting the police in this matter? You should have these discussions with the local Children's Aid Society, perhaps even the Children's Aid Society in Sault Ste. Marie. Obviously, it would be the police in Sault Ste. Marie you would contact, since that is where Mr. Scott resides. However. even though the child is only 3, she seems to be able to say very clearly what happened, and certainly the police would be interested in considering charges.

In our view, the stay motion can proceed as we had planned. We apologize for the passage of time, however, it has been difficult for us to prepare the material when we know so little about what happened at trial. We are making an effort to incorporate the newest material we have received.

Yours truly,

 

CAROLE CURTIS"

In her evidence, Ms. Rudolph stated that she did not feel any need to talk to the Solicitor about the letter, and that the letter was consistent with the telephone call. She stated that she saw nothing inappropriate in the letter considering the disclosures made by the child, and that she followed up and acted upon the various suggestions made in the letter. Ms. Rudolph forwarded directly to Bonnie Scott a copy of the Solicitor's letter, although she had not informed the Solicitor that she would be sending to Bonnie Scott a copy and had not discussed that intention with the Solicitor. The Solicitor stated that she did not learn that Bonnie Scott had in fact received a copy of the letter until she read that she had received it in an affidavit filed in the fall of 1991 for purposes relating to the Court of Appeal proceedings. The Solicitor said that she would never have written a letter like the one reproduced to a client, and was "shocked" when she learned that the letter had in fact been sent to the client, at least without explanation.

The Society's position was that the Solicitor ought to have proceeded forthwith with the stay application, and that it ought to have been made prior to the Solicitor's leaving for her vacation on April 26th. It is not really relevant for the purposes of dealing with the Complaint as to whether it would have been advisable, instead of adopting the variation procedure which was taken, to have elected another course of action. For instance, the lawyers could have decided to bring the stay motion before April 26th, and not to have brought the variation application at all, or they could have decided to bring a stay motion before the Solicitor's leaving for holidays concomitantly with the variation application.

We are satisfied that Debbie Cantrell, Lorna Rudolph and the Solicitor reasonably and honestly believed that Bonnie Scott was certain that sexual abuse had been visited upon the Child following the release of the Reasons by Mr. Justice FitzGerald. This reasonable belief was supported by external indicia. In short, the Solicitor assessed the situation and came to the conclusion that there was an immediate threatened risk in danger to the Child. The letter dated April 17 can only be viewed as a whole, and charts a course of action, or a pathway" for Ms. Rudolph to follow having regard to the assumption that there was an immediate threatened risk in danger to the Child. The Committee accepts the evidence of the Solicitor when she stated that if the variation application had been brought and made returnable prior to the transfer date, then it would not have been necessary to act on the suggestions set out in paragraph 3 of the letter relating to the withholding of the transfer of the Child, and is of the view that the letter can only be read in this light. Without detailing all of the evidence which was heard, it is clear that, in substance, all of the steps which are set out in the letter were attempted bygone of Ms. Rudolph, Bonnie Scott or Debbie Cantrell. The variation application was heard promptly on April 25th in Sault Ste. Marie, and was lost. The next day, Lorna Rudolph telephoned the Solicitor to inform her of the result, but the Solicitor had left for her vacation, as she had previously indicated that she would be doing. The Solicitor learned that Bonnie Scott had disappeared with the Child when she returned from her holiday in early May.

In broad outline, it appears to be the Society's position that the letter advises the client to disobey the court order until the stay is brought back for argument before the court. The stay was, in fact, brought before the court in February, 1991. In our view, the letter cannot be interpreted so as to support the Society's contention. This letter has to be read as a whole, and all of the paragraphs are inter-related. It also emphasizes that the Child's lawyer be told by telephone of "what is going on", that the father be "advised at all times that the Child is safe", and that the husband's lawyer be advised "as soon as possible" that the advice to the client was "not to allow any further contact". The husband's lawyer was to be advised in writing of the reasons for this decision and of the proceedings which would be commenced. The letter clearly states that the client should not "disappear with the child". The letter must be read with reference to the specific circumstances existing at that time relating to the new disclosures pointing to alleged sexual abuse, and with regard to the decision to commence the variety of initiatives including the variation proceedings as soon as possible.

In order to assist the Committee, the Society filed a "Brief of Expert Evidence" containing reports filed by Professor Bruce Dunlop, Professor Beverly Smith, and Mr. Alfred Mamo. In the brief of letters referred to earlier which was filed by the Solicitor, were three letters of opinion which dealt with the issues in some detail submitted by Alan F.N. Poole, Q.C., Harriet Sachs and Gerald P. Sadvari. In addition to those three letters, various of the other letters filed by family law lawyers on behalf of the Solicitor gave opinion evidence, albeit in somewhat abbreviated form. A joint decision was made by counsel not to call oral expert evidence. Of necessity, the expert evidence filed was filed without benefit of the specific circumstances and facts which would be put before the Committee; in addition, some of the expert evidence was written with the benefit of material which was not before the Committee. The Committee therefore found the expert evidence to be of assistance only in a most general sense.

In one way or another, all of the expert witnesses who filed reports and who specifically addressed the issues raised by this part of the Complaint, concluded that in certain circumstances, a lawyer is entitled to advise his or her client to withhold visitation to children in defiance of a court decree where there is an honest and reasonably held belief that to permit the scheduled visitation would subject a child to probable danger, and where an immediate application is made to a court of competent jurisdiction to seek relief against the decree. This principle is perhaps most succinctly summarized in the Professional Responsibility Code for Matrimonial Lawyers adopted by the Family Law Section Committee on Specialization of the American Bar Association Standing Committee on Specialization as a "Model Standard". This document was approved and adopted by the Board of Directors of the New York State Trial Lawyers Association in 1975, and the pertinent section reads as follows:

"4. Advice to clients

c. The matrimonial lawyer shall not advise, counsel, or encourage the withholding of visitation to children, excepting solely where the facts and circumstances related to him. evaluated with competent judgment, evidence that such visitation will subject the child or children to then probable danger; and if such withholding of visitation is then contrary to the directions of any order or judgment of the Court, it shall be the obligation of such lawyer to persuade his client so withholding such visitation to apply to the Court for prompt and immediate modification of the visitation directed by such order or judgment on the same grounds utilized as the basis for the withholding of such visitation."

This statement of principle is quoted by Alan F.N. Poole in his opinion, with approval, and the substance of the rule is adopted by all lawyers who addressed this issue specifically, including Alfred Marno who tendered a report for the Society.

While we accept Mr. Mamo's view that there was no justifiable reason why the motion to stay could not have been heard before the 17th of April, 1990, the fact of the matter remains that the evidence conclusively establishes that a decision was taken to bring a variation application instead and that decision was taken on April 17th. Professor Dunlop states, and we agree, that cases have held that appeal to a court on the basis of new and cogent evidence might offer a defence. While useful in its broad assessment of the development of the professional conduct rules in Canada, the United States and the United Kingdom, Professor Dunlop's opinion does not specifically speak to the issues raised for decision in this Complaint.

We were asked by the Law Society to find that if there are situations in law when the emergency nature of the circumstances might justify disobedience of the law, then the necessity of disobedience would be restricted to "urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible." The quotation is from Morgentaler v. The Queen (1975), 20 C.C.C. (2d) 449 SCC 497, followed by Perka v. The Queen 1984 CanLII 23 (S.C.C.), (1984), 14 C.C.C. (3d) 385 SCC. We find that the defence of necessity, as discussed by the Supreme Court of Canada, is not relevant to the "withholding" type of situation raised by the facts in this Complaint. In the annotation to M. (B. P.) v. M. (B.L.D.E.) reflex, (1992), 42 R.F.L. (3d) 349 Ont.C.A., Professor McLeod asks and answers the following question:

"Is a parent entitled to withhold access if he or she suspects that the access plans pose a risk to the child? The right to ignore a court order should be restricted to clear cases of threatened danger and should be conditional upon immediate court action."

To this phrasing of the question and answer, the Committee adds that there ought to be a reasonable and honestly held belief of risk to the Child occurring. External indicia of trauma to the Child, as was demonstrably present in the facts before us in this case, could obviously offer one of the tests by which a reasonable and honestly held belief that there was risk to the Child might be inferred. In M. (B.P.) v. M. (B.L.D.E.), there is a lengthy discussion both through the reasons of Madam Justice Abella and the dissenting reasons of Mr. Justice Finlayson of a situation in which access was stopped by the mother despite an outstanding court order. The ultimate issue in that case was whether the father was to have access to the Child. It is notable, for our purposes, that the mother was not criticized by either of the judgments in the Court of Appeal, nor by the trial judge, the latter judge referring to a "technical violation of the order". In that case, all of the elements listed above were in existence: a reasonably held belief of risk to the Child, external evidence or support for the supposition of that belief, and an immediate court application to bring the issues before the court.

In summary, this Committee finds that the factual situation at hand fits into that as broadly described both in the annotation by Professor McLeod in M. (B.P.) v. M. (B.L.D.E.) and the excerpt quoted from the New York State Bar. The principle appears to be reasonably clearly established, and we emphasize that the circumstances in which the counselling of the disobedience of a court order can be countenanced are extremely narrow, have implicit in them the elements of reasonable and honest belief of there being imminent risk or danger to a Child, and coexist with the requirement that there be an immediate application to a court to have the issues determined forthwith. Once that application is made and the facts have been presented before a court of competent jurisdiction however briefly, if that court refuses to act to change an outstanding order, then the obligation of the client is to "trust in the efficacy of the legal system" and adhere to the court order, and then if so advised, to seek a full hearing for a permanent change. See In Re Alan D. Rosenfeld 601 A. 2d 972 (Vt. 1991).

In summary, given our findings of fact about the letter of April 17, 1990 and the relevant standard of professional conduct, this Committee finds that this particular is not established.

The Particulars Set out in Paragraph 3(a)(ii) of the Complaint

The Society alleges that the Solicitor failed to counsel the client to come out of hiding and cure her contempt of the court order until on or after March 22, 1991. There was evidence adduced in the hearing with respect to telephone conversations that the Solicitor had with Bonnie Scott, and also with respect to telephone conversations and meetings which the Solicitor had with Debbie Cantrell. Correspondence was put into evidence written both by the Solicitor and to the Solicitor which are relevant in an examination of these particulars. Bonnie Scott, who had been asked in writing by Debbie Cantrell to keep notes, stated to the Discipline Committee that while she had kept notes, the notes could not be located and that they were "somewhere at home in her room". On the other hand, the Solicitor's records with respect to the issue of whether or not telephone calls were made on this case were clear and unequivocal and taken directly from the Legal Aid accounts submitted by the Solicitor to Legal Aid. Solicitor's recollection of when the telephone contacts occurred was clear, and unaffected by cross-examination, The recollection of Bonnie Scott as to when the telephone contacts were made on the other hand was vague and unsupported by any other factors. For all of these reasons, we prefer the evidence of the Solicitor as to when there were meetings or contacts with Bonnie Scott.

Following Bonnie Scott's disappearance at the end of April, Debbie Cantrell was the single person who knew where she was at any given period of time. Correspondence would have reached her if directed to Ms. Cantrell's address. The Solicitor had had telephone conversations and had exchanged correspondence with Debbie Cantrell since at least March, 1990. In fact, on the 28th of March, 1990, the Solicitor had informed Debbie Cantrell that stay orders were hard to obtain and this advice was set out by letter to Ms. Cantrell on April 12, 1990. In mid May, 1990, a meeting took place in Toronto at which were present a number of individuals concerned with the case, and in the result, it was decided that there was going to be an effort to get a child assessment. It is very clear to the Committee that Debbie Cantrell knew, at the very latest, by the mid-May meeting in Toronto, that Bonnie Scott's being in hiding would make her case for custody more difficult and that her actions would "hurt her case". The Solicitor gave Debbie Cantrell that opinion at that time. It is also clear to the Committee that Debbie Cantrell acted as the "go-between", and that she passed on all information of relevance to Bonnie Scott. Therefore, quite aside from what Bonnie Scott was told directly by the Solicitor, or aside from the knowledge which she had obtained previously from other lawyers about the affect of disobeying court orders (see below, p. 23), Bonnie Scott knew in May of 1990 from contact with her closest advisor that remaining in hiding with the Child would harm her request for custody.

The Solicitor made the decision to wait for the transcripts to be prepared before arguing the stay. In addition, as well as the proposed assessment, additional material was to be gathered together to put into affidavit form for the Court of Appeal. The motion for stay was eventually argued before Mr. Justice Krever in the Ontario Court of Appeal on March 22, 1991. The circumstances of the Complaint therefore relate to events which occurred after Bonnie Scott went into hiding and before March 22, 1991.

Bonnie Scott and the Solicitor spoke for the first time on July 9, 1990. This conversation was over the telephone. It is the Solicitor's evidence that during this conversation, she inquired of Bonnie Scott as to how her daughter was, she told her about the difficulties that she was experiencing in obtaining material to put before the court on the proposed stay motion, and she discussed evidentiary matters. The Solicitor stated that she wanted Bonnie Scott to understand that her actions in keeping the Child in hiding would make it hard to win the case, and made it clear that by Bonnie Scott's remaining in hiding, the focus of the court would be switched from its concern about the Child to a concern about Bonnie Scott's behaviour. The Solicitor said that she attempted to be careful and non-confrontational in order to maintain Bonnie Scott's trust, that she told Bonnie Scott that she was no longer the "good guy", that she was no longer wearing the "white hat", and that this information was distressing to her client. The Solicitor emphasized in her evidence that it was always very clear to her that Bonnie Scott would not come out of hiding if she had to give the Child up to her father. The Solicitor conceded that she did not tell Bonnie Scott to "come out of hiding and cure her contempt". The Solicitor's evidence was that if clients such as Bonnie Scott were treated confrontationally, then they lost trust in their lawyers, and that her approach was a deliberate one which had as its objective her attempting to inform the client and make her understand that her actions would make it hard to win the case.

Bonnie Scott testified that up to March of 1991, no one advised her to come out of hiding with the Child. On two occasions in the late 1980's, Bonnie Scott had met with two separate lawyers in northern Ontario, and had inquired of each lawyer as to the penalties for disobedience of a court order and she was well informed that a breach of a court order with respect to access or custody had serious and important consequences, possibly a jail sentence. It is agreed by all that Bonnie Scott did not seek legal advice from the Solicitor before she went into hiding and it is not contended in the Complaint that the Solicitor in any way assisted Bonnie Scott to breach the order. While Bonnie Scott stated to the Committee that she first heard how hard it would be to obtain a stay order only a month or so before the motion was actually argued, we do not find this evidence credible in the light of Debbie Cantrell's knowledge of the difficulty of obtaining the stay order and her statement that she relayed all relevant information to Bonnie Scott. As the days went on, it was patently obvious that Bonnie Scott was running into problems as she became increasingly aware of the search for her and her Child through Child Find posters being erected, and her knowledge of the police investigations which were proceeding which came to her through Debbie Cantrell. During this period, as the time for the arguing of the stay approached, Bonnie Scott stated that she still had hopes in the justice system because she was waiting for a court order so that she would not have to hand over the Child to her husband whom she had firmly and continuously believed had sexually abused her daughter over a lengthy period of time, both before and after the trial before the Honourable Judge FitzGerald.

During 1990 and into 1991, in the discussions between Bonnie Scott and the Solicitor, there is simply no evidence of any discussions relating to the April 17th letter or to any reliance upon it, or of any advice that she did not have to hand over the Child. In fact, the letter clearly states that she should not disappear with the Child.

On March 22, 1991, the motion for stay was heard in the Ontario Court of Appeal, and the matter came on before The Honourable Mr. Justice Krever. The Honourable Mr. Justice Krever dismissed the motion for stay noting in the endorsement on the Record that the court had been placed in an "intolerable position in that the mother was moving the court for the exercise of its discretion in her favour by requesting a stay whilst at the same time remaining in defiance of the court orders directing that the child be transferred to the father." Over the next several weeks, efforts were made to negotiate a delivery of the Child to the Children's Aid Society. Ultimately, the Children's Aid Society refused to accept the Child voluntarily and an application was made before the Provincial Court for an order that the Child be taken into the care of the Children's Aid Society on an interim basis. When that order was obtained, Bonnie Scott delivered up the Child. A short while later, there was another court hearing which held that since the Children's Aid Society had not started a protection action, the court had no jurisdiction and on April 23, 1991, Vanessa was placed in the custody of her father.

In summary, it is clear that Bonnie Scott knew that she was in breach of a court order between April 28, 1990 and April of 1991. She knew that being in breach of a court order was a serious matter, one that could lead to criminal charges and one which would have a serious impact upon the issues relating to custody and access. There is agreement between Bonnie Scott and the Solicitor that the Solicitor did not directly tell Bonnie Scott to come out of hiding with the Child. There is no evidence either from Bonnie Scott or from any other independent source, including a lengthy affidavit sworn on the 20th day of September, 1991 to bring the Court of Appeal "up to date" as to the events which had occurred since April, 1990, which indicates that Bonnie Scott would have come out of hiding if the Solicitor had told her to do so. It is against this factual background that the particulars of the complaint must be examined.

It is the Society's position expressed through its counsel that there was an obligation upon the Solicitor to tell the mother explicitly, clearly and strongly that she ought to have obeyed the law. The Society's counsel states that the advice to the client ought to have been put in writing and that that advice ought to have said that she could not breach a court order. The Society goes on to submit that once the client is fully informed and once the consequences are outlined, then the logical and ethical result is that the client through the lawyer cannot invoke the jurisdiction of the court; the client must be made knowledgeable of the fact that if the client declines to follow the advice to purge her contempt (such advice to be given in terms that the client can understand, and not in technical terms), then the result is that the lawyer cannot continue to act and the client on the outside of the law cannot invoke its jurisdiction. It is common ground that the rules of professional conduct do not explicitly state these contentions.

As Professor Dunlop observed in his helpful opinion, the Law Society of Upper Canada has had neither the time nor the resources to devote to the American style of development which entails a detailed Model of Rules. As he states, "We have rules but they are fewer, less detailed and therefore less certain in their scope and reach". In examining whether the particulars set out in paragraph 3(a)(ii) support the assertion that the Solicitor brought the administration of justice into disrepute, we can reformulate what assistance the case law provides before looking more specifically at the Rules. First, it is perhaps trite but important to observe that once a course of conduct has been validly proven, the characterization of that conduct as unprofessional is an exercise to be undertaken by the Discipline Committee by looking at the substance of the course of conduct alleged to be unprofessional and by applying a "peer" perspective. Miller v. Saskatchewan Psychiatric Nurses Association reflex, (1992) 103 Sask. R. 61 Sask. Q.B. While the Committee may assess evidence using its expertise, the evidence has to be before the Committee before it can assess it. In RE Reddall and College of Nurses of Ontario (1983) 149 D.L.R. (3d) 60 Ont.C.A., the court observed that the lay persons on a discipline committee are given the same powers as the lawyer members to weigh and assess evidence, whether that evidence be expert opinion evidence or other evidence. The existence of lay persons on discipline committees clearly emphasizes the need to put before the Committee evidence upon which it can base its decision.

None of the three expert opinions submitted by the Law Society deal with the issue raised by this part of the Complaint. Ms. Harriet Sachs who submitted an expert opinion on behalf of the Solicitor, states that she can find "nothing in the Rules which speaks to an obligation to counsel a client out of defiance of the law". A passage from Essays in Legal Ethics by George W. Warvelle, an American text published in 1980, states that the obligation of the lawyer is to advise the client and to advise the client honestly:

"... if the client desires to know what course the law requires under particular circumstances, it is the duty of the legal adviser to explain it. But here his duty ends. He is under no obligation to further the unjust schemes of the client, and should refuse to become a party to them. It has been urged that the attorney, on such occasions, should take advantage of the opportunity to deliver to the client a moral lecture. The attorney should do nothing of the kind. He was consulted as a lawyer. not a moralist. His opinion was sought on a question of law, not morals, and the experience of the writer is that attempts of this kind on the part of the lawyer are generally hotly resented by the client. It he so desires he may show the client the iniquity of the scheme as a reason for declining to actively assist him, but this is enough."

It is of significance that the Law Society's Rules of Professional Conduct do not explicitly state that a solicitor must counsel a client out of defiance of the law, and the expert evidence put before the Committee certainly does not support that proposition. The omission of an explicit statement is important in our analysis of what ought implicitly to be inferred, for it would have been a relatively straightforward exercise to have included in the Rules or their Commentaries such a proposition.

The American Bar Association Model Code of Professional Responsibility (in effect as of August, 1983) stops short of opposing any obligation on a lawyer to advise a client to obey a court order or cure contempt. By Canon 7, DR 7 102 (A)(7), a lawyer is directed not to assist his client in conduct that the lawyer knows to be illegal or fraudulent. By the American Bar Association Model Rules of Professional Conduct, and specifically by the comment directed to Rule 1.2 (Scope of Representation), it is the obligation of a lawyer to avoid furthering an illegal act, and the "critical distinction" between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity, is emphasized. Rule 3 of the Professional Conduct Rules of this Law Society states that "a lawyer must be both honest and candid when advising clients." It is of the essence of the practice of law that a client is entitled from his or her lawyer to honest and competent advice, and that the lawyer should explain as well to the client the law and circumstances so that the client is apprised of the true position and fairly advised with respect to the real issues or questions involved (commentary 3). We think it important as well that the American Bar Association Model Rules of Professional Conduct in the commentary to Rule 1.2 also states that "a lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct." Was in fact the approach which the Solicitor used towards her client, Bonnie Scott. (which was grounded in a belief that a non-confrontational approach would be most helpful), adequate to satisfy the strictures of Rule 3? Would it have been better in all of the circumstances to have informed the client succinctly, clearly and cogently that she was in breach of the court order and hat the consequences for disobedience would be drastic? Given the efforts of the Solicitor to enlist the support of the Official Guardian, and given her ultimate success in enlisting the support of the Official Guardian to support a resolution which would have resulted in turning over the Child to the Children's Aid Society, before the Court of Appeal, can it be said that the Solicitor's advice was not "honest and candid"? If various of the members of the Committee were of the view that the advice actually given might have been given in a different manner, or in a more explicit fashion, does that view therefore translate into a finding of professional misconduct? We think not.

The Committee recognizes the tension in most retainers which is set out neatly in the description of the lawyer's duties in Rule 1.

"The lawyer must discharge with integrity all duties owed to clients, the court, the public and other members of the profession."

In this case, the Solicitor had to discharge the duty which she owed to her client by presenting the client's case before the courts and in that presentation to advise the client honestly and candidly. We have commented upon this obligation and how it was carried out. As well though, she had, in discharging this duty to garner her client's confidence, for her client had the right to assume that she could confide in the Solicitor. In an often cited passage, a judgment of the United States Court of Appeals, Ninth Circuit states (1960):

"While it is the great purpose of law to ascertain the truth, there is a countervailing necessity of ensuring the right of every person to freely and fully confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and the proper defence."

Baird v. Koerner 279 F 2d 623, at p. 629.

If the lawyer is obligated to counsel her client out of defiance of the law, then it is difficult to understand how the client's right to confide fully in her lawyer so as to receive "adequate advice and a proper defence" can be sustained.

Any conflict within Rule 1 in so far as the duties owed to the court are concerned does not emerge within the context of this case if it is assumed, as the Committee does, that the Solicitor has not assisted or encouraged the client how to violate the law or avoid punishment. We do not read the Complaint as alleging these contentions, and on the facts,, we find that the Solicitor did not encourage or assist the client to violate the law or avoid punishment, and did discharge with integrity all duties owed to the court.

We cannot accept the Society's position that the particulars set out in paragraph 3(ii) bring the administration of justice into disrepute, given the absence of any expert evidence which would state that there was a positive obligation on the solicitor to counsel the client to come out of hiding and cure her contempt of the court order, and given the absence of any explicit directions in these Rules, or the comparable Rules discussed in other jurisdictions. We reject the position of the Society that once a client has taken a decision not to obey a court order, then that the client must be barred from representation before the courts and deprived of the services of a solicitor. We note that in the endorsement of Mr. Justice Krever on March 22, 1991 that while the court refused to entertain the application for the stay, which was of course a discretionary remedy, it was assumed and was implicit within the written endorsement by the court that the appeal by the client was to be heard as soon as possible in part because the best interests of the Child demanded it.

We have also examined Rules 10 and 11 and see nothing in these Rules which would raise the issues of bringing the administration of justice into disrepute, in the circumstances of this case.

The Particulars Set Out in Paragraph 3(a)(iii) and on 3(a)(iv) of the Complaint

Debbie Cantrell testified in her examination in chief that the Solicitor suggested to her that the chances of winning were so slim that if Bonnie Scott did not want to turn Vanessa over to her father, that she should simply disappear. She said there was a general discussion about new identification and specifically that the Solicitor told her that "any cab driver" would probably know how to get fake identification. In her cross-examination she stated that the Solicitor told her that Bonnie Scott should "just disappear", and that there were several general discussions about false identification and about obtaining false identification in the "Yonge Jarvis Street area". It was said that these telephone conversations took place between July and the fall, most likely after September. In cross-examination, however, it was established that there was a telephone conversation between the Solicitor and Ms. Cantrell on July 27th, the subject matter of which was generally speaking the obtaining of new evidence to proceed to the next stage. There was a second telephone conversation on August 31st. The Solicitor stated in her evidence that Debbie Cantrell had expressed concern to her because she had been contacted by the Hamilton and Toronto police. Debbie Cantrell conceded that she may have talked to the Solicitor about the calls from the police, and whether or not Debbie Cantrell asked the Solicitor questions which could be construed as seeking legal advice, it is clear that Debbie Cantrell was becoming anxious about the situation particularly now that Child Find posters had been distributed. That there was only one telephone discussion after that between the two persons on November 6th. While Ms. Cantrell stated that she did not believe that this record of telephone calls was accurate, it was confirmed by all of the written evidence, and it was not disproved in any way by Ms. Cantrell's records. Surprisingly, Debbie Cantrell, who was a trained court worker, deliberately destroyed some time in 1991 all of the notes which she had kept relating to Bonnie Scott, even though she knew that the notes would be of importance in a court proceeding in which Bonnie Scott's fitness to have custody of the Child and in which an assessment of her conduct would be made by a trial judge in determining what was to happen to Vanessa. While Debbie Cantrell produced a sheet which purported to be a summary of telephone contacts between Bonnie Scott and her, she readily admitted that this list was incomplete. When invited by counsel for the Solicitor to produce further records which she had stated were available which related to telephone calls from her home, she failed to produce those records, even though given an evening to do so. An affidavit sworn by her on the 22nd day of February, 1991 and filed in the Court of Appeal in support of the application for a stay contained statements by her which at the most charitable are broadly stated and exaggerated.

Simply put, the Solicitor's evidence was that there was never any discussion between Ms. Cantrell and her about false identification for Bonnie Scott. that she did not advise Ms. Cantrell of any source from which false identification could be obtained, and in any event, did not know of any place from which it could be obtained, and did not and would not make any such statements "off the cuff", or in casual comments or in anger. It is obvious to the Committee that any such comments, if made and acted upon, would have been terminal to Bonnie Scott's case in the Ontario Courts. This evidence was the evidence which the Solicitor gave and she consistently stated that she never would have withdrawn from Bonnie's case, and that if she were to have withdrawn, Bonnie would have had a terrible time getting another lawyer. Counsel for the Law Society chose not to cross-examine the Solicitor on any of the allegations set out in Complaints (iii) and (iv). In the face of all of the inconsistencies in Debbie Cantrell's evidence, and evidence which was marked by overreaching and simple failures to remember, we accept the Solicitor's evidence and reject the evidence of Ms. Cantrell insofar as the false identification complaint is concerned. We note that the Solicitor as well is entitled to rely upon the outstanding character evidence which was filed on her behalf to support an inference as to the improbability of her having made the comments relating to the obtaining of false identification. See Regina v. Profit reflex, (1992), 11 O.R. (3d) 98 Ont.C.A. As well, the test in Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 Ont. Div. Ct. is applicable. In that case, Mr. Justice O'Leary cites the judgment of Mr. Justice Laskin, as he then was, from Re Glassman and Counsel of the College of Physicians and Surgeons of Ontario [1966] 2 O.R. 81 at page 105 - 6;

"A man's professional reputation, threatened by allegations of misconduct against which he pledges credit as a witness, should be upheld unless there be very strong evidence shattering his defence of that reputation."

For all of these reasons, we have no hesitation in coming to the conclusion that the statements that were alleged to have been made by the Solicitor as set out in particulars (iii) and (iv) were not, in fact, made, and we unreservedly accept the evidence of the Solicitor that she did not make them.

The Committee would like to thank all counsel for their vigorous and complete presentations of the evidence, and for their comprehensive submissions.

Dated at Toronto this 29th day of September, 1993.

Thomas Bastedo, Chair Stephen Goudge Hope Sealy