It is professional misconduct to be significantly rude to one’s colleagues. In the legal profession such rudeness is often called “incivility”. It is more challenging to prosecute such cases where the rudeness occurs in a legal proceeding where the practitioner has a duty to vigorously advocate for their client. However, in Histed v Law Society of Manitoba, 2021 MBCA 70 (CanLII), https://canlii.ca/t/jhjvz such a finding of incivility was upheld.
In that case the practitioner made repeated comments about prosecuting counsel in a criminal case. In essence the practitioner accused the colleagues of causing the suicide of a complainant by the manner in which they prosecuted the case. The practitioner also said that the prosecutors tried to extort the practitioner’s client by suggesting in the course of settlement discussions that a more serious charge would be proceeded with if resolution was not achieved. In effect, the practitioner attacked their integrity. The Court considered the freedom of expression values contained in the Canadian Charter of Rights and Freedoms as applied in the case of Groia v. Law Society of Upper Canada, 2018 SCC 27 (CanLII),  1 SCR 772, https://canlii.ca/t/hsb9d. The Court found that the disciplinary panel had looked at all of the surrounding circumstances: “The record amply supports the Panel’s conclusion that there was no reasonable basis for the allegations and they were not founded on an honest assessment of the evidence.” The Court concluded:
The allegations directly impugned the integrity of the Crown and the Assistant Deputy, and struck at the core of their professional obligations as ministers of justice. The Panel considered that these attacks were personal and disparaging of their character. The communications included gratuitous comments, such as the appellant’s personal opinion about the Crown’s handling of other cases and irrelevant aspersions regarding the Assistant Deputy’s intention in filing the complaint. The Panel was particularly critical of the appellant for targeting the character and motivation of the Crown and the Assistant Deputy when he knew that their actions, in relation to the NCO, were in accordance with longstanding Manitoba Justice domestic violence policy. The Panel also took note that the allegations were repeated multiple times in stronger language as time went on through to and including the hearing.
It is apparent from a review of the Panel’s decision, the evidentiary record and the submissions of counsel, why the Panel concluded that the cumulative impact of repetitive, unfounded, serious personal attacks using unnecessary invective and a disrespectful tone, was uncivil and amounted to professional misconduct. I would not accede to this ground.
The finding of incivility was upheld.