Law society knew about sex claims

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Douglas: stepped aside

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King: not disciplined

The Law Society of Manitoba blocked all public access to allegations of sexual impropriety against a Manitoba judge and her lawyer husband five years before the secret finally exploded last week.

Court documents obtained by the Free Press show that at the request of the law society, the Court of Appeal issued a sealing order on, among other things, documents containing what they called "very sensitive" facts outlining incidents that only became public days ago.

The province's highest court also agreed with the law society's request not to notify media outlets about the motion to prevent access as part of proceedings in an unrelated case they were hearing. The Supreme Court of Canada has stated that the media should be given notice of any attempt to ban access to or publication of information in a court proceeding.

The revelation raises new questions about who within Manitoba's legal community knew about a case that has resulted in Queen's Bench Associate Chief Justice Lori Douglas temporarily removing herself from active court duties while the Canadian Judicial Council reviews a sexual harassment complaint against her. Previously, many lawyers told the Free Press they had heard rumblings over the years. Now, there is proof the body governing the conduct of all Manitoba lawyers had specific information about the case years before it began to investigate.

Douglas' husband, Jack King, is also being investigated for professional misconduct by the Law Society. Alan Fineblit, the chief executive officer of the law society, told the Free Press last week his organization is only now investigating because a specific complaint was recently filed with them.

At the centre of the allegations is Alex Chapman, a Winnipeg computer programmer who has filed three lawsuits seeking $67 million in damages against the couple and their former law firm. Chapman, 44, came forward last week with allegations his former lawyer, King, tried to coerce him into having sex with Douglas while representing him on a divorce case in 2003. He said King also sent him numerous explicit nude photographs of Douglas, who was a lawyer at the time in the same firm of Thompson Dorfman Sweatman.

Court documents show the existence of nude photos of Douglas and allegations of misconduct by King were front and centre before disciplinary proceedings against another lawyer at the law society in 2004. In that matter, Chapman's lawyer, Ian Histed, was suspended for one month and fined $18,000 by the law society in January 2005 for two counts of professional misconduct related to his dealings with a former client in a child custody case (not Chapman).

According to documents filed by Histed with the court in November 2005 obtained by the Free Press, Histed had filed an affidavit with the law society in October 2004 as part of the disciplinary proceedings that apparently detailed the scandal, including the existence of nude "sexual bondage" photos of Douglas and the alleged "luring" of Chapman by King for sex with Douglas. Histed included information about how his client, who was unnamed in the documents, had made a complaint about King's conduct with senior partners at the law firm of Thompson Dorfman Sweatman in June 2003.

King's lawyer, Bill Gange, told the Free Press last week King acknowledged that he did meet and talk about sex with Chapman, but only after Chapman obtained his divorce in April 2003. King struck a confidentiality agreement with Chapman that involved paying him $25,000. In exchange, Chapman agreed to return all photos of Douglas, not seek legal action and not speak publicly about the case. A copy of the agreement between Chapman and King was filed as part of Histed's affidavit.

King also agreed to leave the law firm and take a one-year medical leave from practising. The law society interviewed King around the same time Chapman complained to King's law firm, but told the Free Press last week it took no disciplinary action on the basis it had no formal complaint filed against King. The only condition the law society placed on King was to provide a medical report confirming he was fit to return to practising law, which was done in 2004.

The law society apparently received information about the existence of the photographs and the alleged sexual harassment of King's client in October 2004. Douglas was appointed to the Court of Queen's Bench on May 19, 2005.

Histed appealed the law society's disciplinary conviction, saying two members of the Law Society Complaints Committee, which authorized charges against him, were lawyers with Thompson Dorfman Sweatman who clearly had "a conflict of interest" given his previous dealings with the law firm. "The proceedings were tainted from beginning to end by a reasonable apprehension of bias," Histed claimed. The complaints committee did not preside over the hearing into the charges against Histed. Histed was found guilty by members of a separate discipline committee, none of whom was a member of the Thompson Dorfman Sweatman law firm.

After Histed filed documents he intended to rely on for his appeal, the law society filed a motion seeking to have certain documents temporarily sealed, including his October 2004 affidavit to the law society and transcripts of his disciplinary hearing which was held over three days in November 2004.

The law society argued the transcripts included solicitor and client advice regarding the client whose complaint led to the disciplinary charges and also that the documents that detailed the negotiated settlement between King and his former client should be kept confidential. The law society wrote that allowing certain details to become public would be breaching the confidentiality agreement Histed's client had previously signed and be a violation of settlement privilege. The law society had made a similar sealing order pertaining to Histed's disciplinary case during a series of preliminary motions heard in late 2004. Histed consented to the sealing of the documents in the Court of Appeal.

Appeal Court Judge Freda Steel agreed to temporarily seal portions of the file during a hearing that was held on July 27, 2005 until Histed's appeal on the discipline charges could be heard. Her written decisions were released to the parties in September 2005 and put on the court file.

As a result, King was referred to as "Mr. X" and Douglas as "Ms. Y"in all further written rulings and affidavits. Steel said that Histed had included letters between himself and the lawyer representing "X" as they negotiated the settlement in 2003. She said they were marked "personal and confidential" and clearly not meant for public consumption.

"The correspondence ...falls into the category of settlement negotiations, which are protected for disclosure," Steel wrote in her decision. "Confidentiality was a fundamental part of the negotiations between (Chapman) and X, and the settlement itself contained an agreement as to confidentiality. The very sensitive facts underlying the allegations against X came to light only because of the disciplinary proceedings against (Histed), and this was not information the public would normally have had access to."

Steel questioned at the time whether media outlets should have been given notice of the motion for the sealing order. The law society argued that notice wasn't necessary because the issue concerned matters "already considered to be confidential." Steel ultimately agreed.

The Court of Appeal extended the temporary sealing order during a hearing in November 2005. Histed's appeal was heard -- and rejected -- in February 2006 by a panel of three judges. The court found no bias in the conduct of the proceedings against Histed.

The sealing order remains in effect. The October 2004 affidavit filed by Histed detailing exactly what information the law society had in 2004 is among the documents sealed by the court and was not available for the Free Press to review. However, Histed's written argument filed in November 2005 was not sealed and referenced both the affidavit and the nature of the information in the possession of the law society.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition September 9, 2010 A3