Can you get away with using the f-word in exchanges with opposing counsel?
Apparently you can, just as long as it's not used as part of a "campaign of rudeness aggressiveness and intimidating behaviour," according to a recent decision by a hearing panel of the Law Society of Upper Canada.
Ernest Guiste had argued that his use of profanity during a mediation session in a sexual harassment case should have been protected by a confidentiality agreement signed by both parties ahead of the meeting. In any case, "the word 'fuck' is more commonly used in every day language," he argued, according to the decision.
Guiste, who was representing a complainant in the case, said mediators will encourage parties to vent in an effort to promote resolution, and that counsel should be excused from using profanity, if provoked. Guiste also invited opposing counsel to take the opening settlement offer, which he viewed as unreasonably low, and "shove it up your ass."
"The panel is aware of the apparently wider use in modern society of the 'f' word and other profanity and of the acceptance of its use in some circles. The panel is not saying that an isolated use in an exchange between counsel will amount to misconduct," wrote panel chairwoman Adriana Doyle. "However, when such language is used as part of a campaign of rudeness, aggressiveness and intimidating behaviour, as in this case, then the panel finds that this behaviour crosses into the realm of conduct that is unbecoming of the model of civility to which we aspire in our legal profession."
Taken together, the panel found the cumulative effect of Guiste's behaviour in the session constituted misconduct, and could not be excused by the frustrations he experienced in the mediation process. He was also found guilty of three further counts of misconduct related to uncivil behaviour. A penalty hearing has not yet been scheduled.