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Inglorious end was deserved

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The legal career of the Toronto lawyer who represented Winnipeg folk group the Wyrd Sisters in a bid to stop a Harry Potter movie from being shown in Canada came to an inglorious end last week. The Law Society of Upper Canada, which regulates Ontario lawyers, disbarred Kimberly Townley-Smith for making unfounded allegations of bias and corruption against nine judges and more than a dozen lawyers in Ontario and Manitoba. The only wonder about her fate is why it took so long.

In 2005, Ms. Townley-Smith represented the Wyrd Sisters in their lawsuit against Warner Bros. that sought $40 million in damages and an injunction to prevent screening of the film Harry Potter and The Goblet of Fire. The Wyrd Sisters claimed the film infringed their trademark because it included a scene with a rock band variously called the Weird Sisters, or the Wyrd Sisters.

Broadly speaking, lawyers commit professional wrongs leading to loss of their licence to practise law in two ways -- via conduct unbecoming to a lawyer, or via professional misconduct.

A lawyer can be disciplined by a provincial law society even though not practising law when the offending deed was done. He or she can be charged with what's known, in Manitoba, as "conduct unbecoming a lawyer," an offence that applies to what lawyers do in their private lives. If a lawyer posts a profanity-laced rant on the Internet, or drunkenly drives a riding mower the wrong way down Portage Avenue at rush hour, the Law Society of Manitoba can charge him or her with conduct unbecoming. The nomenclature varies province to province. Some provincial law societies label this kind of personal misbehaviour an "act derogatory to the honour and dignity of the bar," or "conduct incompatible with the best interests of the public." But whatever legal buzz phrase is used, the offence has nothing to do with the lawyer's conduct as advocate or adviser.

However, to be charged with professional misconduct, as with Ms. Townley-Smith, a lawyer's acts or comments must have been committed while acting in his or her capacity as a lawyer.

Professional misconduct is far and away the offence of greater gravity. It goes to the core of a lawyer's duties. By law a lawyer is supposed to act in accordance with the Latin phrase uberrimae fidei, meaning with utmost good faith, to the court, the client, other lawyers and members of the public. Ms. Kimberly Townley-Smith breached her professional duty to each and every one of those groups.

When her clients lost at both trial and appellate levels, she made conspiracy allegations against opposing counsel and the presiding judges. She even sued two Ontario judges -- without the client's knowledge or permission, according to the Winnipeg band's leader and principal, Kim Baryluk -- and reported Manitoba Court of Queen's Bench Judge Chris Martin to the police "for alleged criminal offences," as the judge put it. Justice Martin also called her litigation tactics "generally obstructive, threatening, contemptuous, abusive and largely without substance." (Although most of the litigation took place in Ontario, it landed in Winnipeg when Warner Bros. sought to collect its Ontario-awarded costs against Baryluk, whose assets were in Manitoba.)

Although the first formal complaint to the Law Society of Upper Canada about Ms. Townley-Smith's conduct wasn't made until 2009, documented complaints about her rogue conduct started surfacing in judicial comments and court judgments as early as 2006. In fairness to her governing law society, in June 2010, she was suspended from the practice of law on an interim basis.

Nonetheless, and though a governing law society should use disbarment only as a punishment of last resort, it's troubling it took until late 2012 to terminate the right to practise law of a lawyer who was, transparently, a clear and present danger to anyone and everyone who crossed her path.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition October 29, 2012 A12

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