Wise Law Roundtable: Rogue Articling Students and a Lawyer's Duty to Supervise

Commentaries from Wise Law's lawyers on current cases of interest 

Background

All lawyers are expected to be good ambassadors of the profession and the justice system. This is not only when in court or in the office, but also when online and in the public eye generally.

In Law Society of Ontario v. Marco Forte, 2019 ONLSTH 9 (CanLII), a senior lawyer recently accepted disciplinary penalty from the Law Society because he failed in his duty to adequately supervise an articling student who was not living up to the standards of professional conduct on some online message boards, and Twitter.

But how far does this duty go? How much online activity can a lawyer - and should a lawyer - be expected to police?

A senior criminal lawyer, Marco Forte, hired his first-ever articling student. Her conduct online quickly became a problem, according to the ruling. Less than a month after she began articling, the student got in a verbal altercation with Court staff, flipped them her middle finger, and had to be escorted from the Courthouse by police. She took to twitter to allege that she had been illegally arrested.

She also made a number of posts on a Criminal Lawyer’s Association listserve, in which she made comments about “white male privilege” that other members found offensive and disparaging. She also made comments that apparently seemed to break rules about confidentiality. She also tweeted derogatory comments about Justices of the Peace, Crown attorneys and her firm’s clients:

...a Twitter post on September 3, 2015 reads as follows: “welp. apparently some JP’s just love to powertrip for no fucking reason at all, wasting everyone else’s time while at it.”

This pattern continued from July 2015, to December 2015. The lawyer put her on suspension, after being informed that she had tweeted publicly “about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots [and] also described them as having jobs that were incredibly ‘futile and outdated.’”

Meanwhile, even while on suspension, the student:

“...continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

The Tribunal decision acknowledges that Forte knew about much of the student’s conduct all along, and was trying to address it with her, and supervise her, to prevent her from this kind of rogue social media activity.

However, the Tribunal found that Forte hadn’t gone far enough to curb her behaviour. While he did not “abdicate” his responsibility to rein her in, the Tribunal found:

“...the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control [her] Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.”

Our lawyers had these thoughts on this ruling:

GARRY WISE: A problem here is that this was a  consent disposition, and none of these issues appear to have been argued or adjudicated in any meaningful way.  I suspect this lawyer agreed to a slap on the wrist to avoid the enormous costs that would have been incurred in defending this.

SIMRAN BAKSHI: Reading between the lines, I think that the Law Society may have been troubled by the fact that the Lawyer requested the student to create a twitter account and website for the firm, which he did not monitor. As well, the disciplinary action that he did take was a suspension over what would have been Christmas break.

PAUL ADAM: The passage that bothers me is this one:

[46] “The Lawyer did not abdicate his responsibility to supervise his student; the problem was that his efforts, while well-meaning, were ineffective. As one of the Lawyer’s character witnesses put it, the Lawyer “struggled to assist [her] as best as he could” and “often spoke of his frustration” in helping her. He did not fail for lack of trying.”

PAUL ADAM: I do wonder if Courts and tribunals are swinging from a position of having no interest or faith in technology, to having wildly unrealistic expectations of how lawyers ought to be using and monitoring technology to accomplish things that are just not possible.

GARRY WISE: I’m not sure what more the lawyer could have done.  How does one monitor an undisclosed Twitter account?  Does linking a Twitter page to a firm website really equate to advertising?

SIMRAN BAKSHI: I agree that it seems problematic to connect a personal twitter page to a firm simply because it contains a link to the firm's website; however it seems that in this case at least several different members of the public drew a connection between her inappropriate conduct and the firm, simply from looking at her page.

PAUL ADAM: It reminds me of a costs decision that was reported a few months ago, Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. It was a summary judgment motion on the issue of occupier’s liability. Whitten J. was not prepared to allow a $900 billing for legal research, on the grounds that the use of “artificial intelligence sources” could have cut down on counsel’s time on the file- no further explanation as to what that would entail. It’s a further case of a challenge is being put to lawyers involving the changing use of technology but we’re missing a meaningful standard of what a lawyer actually should or should not be doing, it’s just an admonishment to “do better.”

GARRY WISE: I’d be curious what an employment lawyer would have recommended had the lawyer consulted with one as these events were unfolding. At what point could termination for cause have been a viable option?  The termination of an articling student is not a decision to be taken lightly.

SIMRAN BAKSHI: I can understand how the lawyer may have had some responsibility to monitor the student’s Twitter account and take disciplinary action where warranted, after he was made aware of some her disparaging comments, but to require that he “control” her personal Twitter feed strikes me as being unreasonably onerous.

What are your thoughts?  Let us know in the comments or @wiselaw on Twitter.

- Wise Law, Toronto

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