In­dige­nous lawyer al­lowed to re­sign

National Post (Latest Edition) - - FP LEGAL POST - Julius Mel­nitzer Fi­nan­cial Post

A high- pro­file In­dige­nous lawyer was al­lowed to re­sign from the Law So­ci­ety of Up­per Canada, de­spite ad­mit­ting to deal­ing dis­hon­estly with Abo­rig­i­nal clients, one of whom is su­ing her for botch­ing a per­sonal in­jury case.

The res­ig­na­tion has lead to ques­tions about whether Su­san Hare was given spe­cial treat­ment in or­der to spare the Law So­ci­ety, which gov­erns the le­gal pro­fes­sion in On­tario, from the em­bar­rass­ment of sub­ject­ing a vet­eran lawyer to for­mal dis­ci­plinary pro­ceed­ings that may have re­sulted in dis­bar­ment.

Hare, a mem­ber of the M’chigeeng First Na­tion and a lawyer since 1995, gave up her li­cense to prac­tice law as of Aug. 15, 2017. Her res­ig­na­tion, dated in June fol­low­ing a Law So­ci­ety investigation, ac­knowl­edges that she did not file ap­pli­ca­tions for com­pen­sa­tion with the In­dian Res­i­den­tial Schools Ad­ju­di­ca­tion Sec­re­tariat for cer­tain clients and failed to sub­mit sup­port­ing doc­u­ments for oth­ers.

Hare’s res­ig­na­tion also ad­mits that she “did not pro­vide in­for­ma­tion with hon­esty and can­dour” to clients re­gard­ing the sta­tus of their ap­pli­ca­tions.

The Law So­ci­ety, act­ing on the ad­vice of an in­de­pen­dent ex­ter­nal coun­sel, de­cided to deal with Hare by way of a Reg­u­la­tory Meet­ing, not a for­mal dis­ci­plinary pro­ceed­ing. But the so­ci­ety may not have been aware of mal­prac­tice al­le­ga­tions con­tained in a law­suit brought by Thomas Smith, which have not been proven in court. Those al­le­ga­tions of in­com­pe­tence and mis­lead­ing con­duct on Hare’s part mir­ror the con­duct that led to Hare’s res­ig­na­tion.

“It’s ab­so­lutely shock­ing that Hare was al­lowed to re­sign,” says Christo­pher Du Ver­net of Du Ver­net, Ste­wart, the Toronto lawyer who rep­re­sents Smith, a Na­tive Amer­i­can res­i­dent of New Mex­ico. “One won­ders if her fel­low benchers are giv­ing her spe­cial treat­ment.”

The Law So­ci­ety said the in­volve­ment of an in­de­pen­dent in­ves­ti­ga­tory coun­sel en­sures that spe­cial treat­ment was not a fac­tor in her case. It said the pol­icy of en­gag­ing ex­ter­nal coun­sel ex­ists “in part to avoid any ap­pre­hen­sion that ( an in­di­vid­ual’s) sta­tus as a bencher or for­mer bencher could in­flu­ence the out­come or rec­om­men­da­tions of an investigation.”

Du Ver­net said he wants more in­for­ma­tion. “Hare was in a po­si­tion of lead­er­ship, in­clud­ing sit­ting on the ( Pro­fes­sional Devel­op­ment and) Com­pe­tence Com­mit­tee mak­ing rules for the rest of us,” he said. “She also held her­self out as an ex­am­ple for In­dige­nous lawyers, all the while be­tray­ing the trust of clients she knew were among so­ci­ety’s most vul­ner­a­ble.”

In an in­ter­view with the Fi­nan­cial Post the day be­fore her res­ig­na­tion took ef­fect, Hare said she “didn’t act prop­erly as a lawyer, ac­cepted my re­spon­si­bil­ity and apol­o­gized to the peo­ple in ques­tion.”

But she added that she was plan­ning to re­sign re­gard­less. “I’m get­ting older and I’m not dis­pleased with leav­ing the prac­tice of law," she said. “It’s my last day and I’m happy to be gone.”

In an in­ter­view with the Man­i­toulin Expositor in Septem­ber, Hare de­nied that her res­ig­na­tion had in any way re­sulted from the reg­u­la­tory hear­ing.

She will still have to con­tend with Smith’s law­suit, how­ever.

Smith al­leges that he was in­jured when he was forcibly and wrong­fully re­moved from a reser­va­tion, and he came to Hare for help.

In his claim, Smith al­leges that Hare’s prac­tice was “in com­plete dis­ar­ray”, that she was “not fit to prac­tice” and that she should have de­clined to take on his case.

As ev­i­dence of Hare’s in­com­pe­tence, Smith al­leges that she tried to ar­range dis­cov­er­ies only af­ter fil­ing a trial record, some­thing that is not al­lowed by On­tario’s civil lit­i­ga­tion rules.

Ac­cord­ing to Smith, Hare “touted her own Abo­rig­i­nal sta­tus” as mak­ing her es­pe­cially qual­i­fied to rep­re­sent him; told him that he had an ex­cel­lent case worth “ap­prox­i­mately $1 mil­lion;” held her­self out as an ex­pe­ri­enced civil lit­i­ga­tor; and pre­sented her­self as “a leader among the na­tive In­dian bar, and a shin­ing ex­am­ple of what In­dige­nous peo­ple could ac­com­plish.”

“In fact, th­ese rep­re­sen­ta­tions were false at the time they were made, and did not be­come true there­after,” the claim al­leges.

Ul­ti­mately, Smith main­tains, Hare’s in­com­pe­tence, de­lay, mis­rep­re­sen­ta­tions and de­ci­sion to ig­nore warn­ings from the court led to an or­der dis­miss­ing the ac­tion in July 2014 — an or­der of which Hare did not in­form her client.

“The De­fen­dant ig­nored the or­der; failed to send a copy of it to the Plain­tiff as the or­der it­self and the Rules re­quired; failed to in­form the Plain­tiff of the con­se­quences of the or­der; failed to ad­vise the Plain­tiff of the op­por­tu­nity to have the Court re­vive the ac­tion; and took no steps of her own ini­tia­tive to re­vive it de­spite the broad man­date of her re­tainer to pur­sue the ac­tion ex­pe­di­tiously,” the claim al­leges.

Smith is seek­ing in ex­cess of $1 mil­lion in dam­ages.

Hare has served for­mal notice that she will de­fend the ac­tion — by rep­re­sent­ing her­self.

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