It is professional misconduct for a lawyer to say to a social worker that he should shoot her because she “takes away too many kids”. In Foo v. Law Society of British Columbia, 2017 BCCA 151, the lawyer, Mr. Foo, said that the comment was meant in jest and amounted to a flubbed joke. The tribunal disagreed and the Court upheld the finding and the resulting two-week suspension. The Court also rejected the argument that the finding encroached excessively into the lawyer’s freedom of speech, which does not protect threats of violence. The Court also rejected the view that the legislative provision authorizing discipline for a “marked departure” from that conduct the Law Society expects of lawyers was too vague. The Court found that a specialist tribunal was able to give meaning to this language.
An interesting collateral issue was whether the lawyer’s evidence that the comments were made in jest was in evidence before the tribunal. The Agreed Statement of Facts attached statements from Mr. Foo on the point, but offered them only as his statements and not for the truth of their contents. Mr. Foo did not testify or offer formal evidence. The Court held that Mr. Foo had not placed that evidence before the tribunal. It is helpful when an Agreed Statements of Facts is prepared to ensure that the evidentiary status of the information contained in them is clear.