While acting for the plaintiff in a personal injury matter, Thomas Harding received a letter from a paralegal working for opposing counsel regarding an independent medical examination.
Harding, who took issue with the choice of doctors for the examination, wrote a colourful letter to the opposing counsel about his wish not to communicate with the paralegal, who had cited case law in her last correspondence with him.
“While it is delightful that you have an uneducated person striving to be what she is not, it is not my job to educate her. A child may dress in her mother’s uniform, but it does not make her a general,” he wrote.
“Having your paralegal quote law at me reminds me of Dr. Johnson’s comment about a woman preaching. Please do not have your paralegals, secretaries, or legal assistants write to me on any matter at all,” he wrote, adding that if an issue merits his attention, it should merit the other lawyer’s own attention as well.
Harding repeated the same statements in a second letter written on the same day. After a complaint for incivility was filed against him, he apologized to the paralegal and the lawyer, admitting that his remarks were an unfair “eruption of irritation.” He added he was trying to be “witty” in his letters.
Harding also testified he is seeking counselling for anger management. But as to the wording of his letters, the law society did not find it met the threshold for incivility.
“While the panel accepts the respondent’s testimony that he was trying to be witty, we find, as presumably did [the opposing counsel and the paralegal], that the respondent’s attempt at a ‘witty admonishment’ fell short of the mark,” the law society panel wrote.
“His comments were open to misinterpretation, and they were so misinterpreted. In the circumstances, however, we do not find that the manner in which he expressed his views, or the words he used, was a marked departure from the conduct expected from members.”
Harding told the panel he has a strong view that lawyers should not be put in a position where they’re expected to debate legal issues with non-lawyer staff on the opposite side of a case.
Ethics lawyer Gavin MacKenzie with Davis LLP says Harding’s words were “ill-advised and discourteous,” but he agrees they didn’t constitute a professional misconduct “particularly since he had a legitimate point to make about the inappropriateness of the law clerk engaging him in correspondence about the interpretation of case law.”
The law society did not comment on the appropriateness of lawyers corresponding via non-lawyers.
MacKenzie says he is surprised the complaint went as far as a conduct hearing.
“In Ontario, it is likely that it would have been dealt with through an informal, non-disciplinary process, such as a letter of advice from the chair of the proceedings authorization committee or an invitation to attend a meeting with benchers to discuss how the lawyer might consider handling issues such as this more professionally in future.”
In his letter, Harding had also referred to the Insurance Corporation of British Columbia’s suggested medical examiner as the ICBC’s “hireling.” He has previously gotten in trouble for comments he gave to the press about the credibility of an expert witness.
Harding wasn’t available for comment before press time.