Indigenous lawyer allowed to resign
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.