Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination


Brock Anthony Edwards

Burnaby, BC

Called to the bar: September 1, 2004

Hearing dates: January 24, 2020 and March 10, 2020

Panel: Craig Ferris, QC (chair), Laura Nashman and John Waddell, QC

Decision issued: May 25, 2020 (2020 LSBC 21)

Counsel: Mandana Namazi for the Law Society; Joel Morris for Brock Anthony Edwards

PRELIMINARY APPLICATIONS

Brock Anthony Edwards applied for an adjournment of a hearing on the day of the scheduled hearing on the grounds that his former lawyer formally withdrew from the record at a prehearing conference the week prior, that Edwards intended to apply to withdraw some or all of the admissions, and that he had retained new counsel who needed time to prepare for the hearing.

A Notice to Admit had been served on Edwards’ lawyer in September 2019. It stated that, if he did not respond within the requisite 21 days, Edwards would be deemed to admit the truth of the facts. Edwards never responded to the notice. In November 2019, his lawyer requested to adjourn the December hearing. A third prehearing conference took place and Edwards’ lawyer indicated he accepted the Notice to Admit and would not contest its contents. A new hearing date was scheduled for January 24, 2020.

Edwards’ lawyer gave notice to withdraw on January 9, 2020. A fourth prehearing conference was held on January 17, where the presiding Bencher permitted Edwards’ lawyer to withdraw. Edwards advised for the first time he would not make any admissions.

Edwards’ new counsel contacted the Law Society on January 19 and advised he was retained to apply to adjourn the hearing. He appeared at the January 24 hearing and reiterated that he required an adjournment to allow time to review the matter, take instructions and prepare for the hearing.

The Law Society submitted that Edwards was aware of the withdrawal of his counsel and yet made no efforts to find new counsel and he had ample opportunity to object to the contents of the Notice to Admit. An adjournment, in the Law Society’ s view, would be contrary to the public interest.

The hearing panel dismissed the adjournment application and ordered the Law Society to present its evidence as scheduled on January 24, 2020, but without closing its case. The hearing would then be adjourned to allow Edwards and his counsel to prepare an application to withdraw some or all of the facts in the Notice to Admit. The Law Society presented its evidence and made submissions. The hearing then adjourned to March 10, 2020.

Edwards applied to withdraw certain admissions in the Notice to Admit that were, in his view, irrelevant to the allegations in the citation and prejudicial to him. He asserted he never had an opportunity to review the admissions in the notice with previous counsel and challenged the evidence of his former spouse and her counsel. He said he ought to be permitted to lead fresh evidence.

The Law Society opposed the application, as the Supreme Court decision that is the subject of the citation is admissible as proof and Edwards should not re-litigate those findings. It remained open to Edwards to make submissions to argue that certain admissions should not be given weight. The Law Society submitted Edwards had not establish a proper basis to withdraw the admissions.

The panel dismissed Edwards’ application to withdraw the specified admissions.

FACTS

Edwards is a sole practitioner whose practice consists primarily of motor vehicle plaintiff and criminal law. He and his former wife were parties in a family law trial in the Supreme Court of BC. The court pronounced a final order granting a divorce, which included orders on guardianship, parenting time, child support and property division.

In her reasons, the judge noted that Edwards’ conduct through the litigation had been unacceptable, including failure to produce documents, ignoring an order of the court to pay child support and a lack of cooperation concerning the property involved, which had the effect of driving up costs for his former spouse, the opposing party.

Edwards later applied to change the parenting arrangements and for a reduction in child support. He wrote to the opposing party asking her to provide her list of three mediators by a certain time and stating that, if she failed to do so, he would consider filing a claim against her new partner for assaulting his child. He sent instructions to his legal assistant to file a requisition with respect to his application and copied a senior lawyer. It was unclear why the senior lawyer was copied as he was not involved in the case. That lawyer advised him he should not file the requisition to change the date “ by consent,” as the opposing party had not been notified and had not consented. Edwards proceeded to file the requisition which stated the change of date was “ by consent.”

The opposing party’ s lawyer sent Edwards a letter stating that the requisition filed indicated consent, but that was not the case, and she would inform the court accordingly. The opposing lawyer filed a response to the application, which included an affidavit setting out a history of events leading up to the final order and explained that Edwards’ failure to pay child support led the opposing party to enrol with the Family Maintenance Enforcement Program (FMEP).

The court made several interim orders:

  • Edwards’ application to vary the final order regarding custody was adjourned;
  • should Edwards wish to re-set an application to vary custody, he must do so in compliance of the Supreme Court’ s family rules;
  • the opposing lawyer may calculate Edwards’ child support arrears to determine his new amount of child support arrears;
  • the opposing party was awarded costs of $500 because Edwards filed a requisition “ by consent” when she had no knowledge of the requisition; and
  • Edwards was required to pay the $500 costs as a precondition to setting down any further court applications.

Edwards emailed the opposing lawyer and requested she send the draft order to the senior lawyer who was not involved in the case, before filing it at the courthouse. Edwards also sent several emails to her to set out arrears he calculated he owed. He forwarded an email to her from the registrar, which attached the court summary sheet confirming the opposing party had been awarded costs of $500. The next day he paid $500 to FMEP, then he emailed the opposing lawyer and claimed he had paid the costs order.

The opposing lawyer refused to send the order to an uninvolved third party for review. She said costs were payable to her client and were not child support, and the $500 paid to FMEP was irrelevant to the issue of costs. She said the order directed her to calculate arrears, not Edwards.

Edwards responded that it was “ nonsense” and “ bad faith” and he would consider bringing an application before the court to ask for special costs. He claimed it would take another full day to argue about the costs, which would be charged back to the opposing party.

Edwards served the opposing lawyer with a notice of application, which sought to vary parenting arrangements. He made a written request to the court seeking an order that his payment to FMEP satisfied payment of the cost award.

The opposing party filed a response to the application with an affidavit that set out her belief Edwards deliberately paid the $500 costs award to FMEP instead of to her because he wished to reduce his child support arrears while fulfilling his obligation to pay the award before he could bring further applications. She alleged Edwards breached the order by not filing and serving applications in accordance with family rules and by calculating the arrears he owed. The response also alleged Edwards insulted her lawyer, screamed at her in open court and emailed her to claim she was acting in “ bad faith.”

Edwards sent a cheque for $500 to the opposing lawyer and stated the payment was sent on the undertaking that she not make use of it unless with respect to the order. The lawyer refused to agree to the undertaking, as the money represented the costs award and therefore was not the subject of an undertaking. Edwards removed the undertaking, and they exchanged a number of emails to set the next court date.

The opposing lawyer filed an application pursuant to section 221 of the Family Law Act, which allows a court to make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court. Edwards has admitted to the facts in that application, including that he brought civil proceedings against his former spouse’ s new partner to force her to engage in negotiations to vary the child support arrears, and his behaviour in litigation resulted in additional expense and frustration for her.

Edwards filed another requisition that requested the hearing be re-set to another date by consent. The opposing party and her lawyer had not provided any such consent.

Edwards filed an affidavit attaching one email from himself to the opposing lawyer on his available dates for a hearing, despite having received other emails from her on setting the application. He implied the lawyer deliberately filed a separate application in order to supersede his application to vary custody or parenting time.

At the hearings, Edwards accused the opposing lawyer of abusing the court process and being contemptuous of the court order. The lawyer clarified to the court that her contact with Edwards was about her s. 221 application and she did not think he expected her to set down his separate application.

The judge determined, based on findings of fact, that Edwards had misused the court process. He found that Edwards did not obtain consent for the two requisitions filed and there was no substance to his statements about setting the dates. His $500 payment to FMEP was to “ skirt” the terms of the order and his request for an undertaking with respect to the costs was unnecessary. Edwards wrote an email suggesting he hoped to cause his former spouse more expenses in legal fees. He used the court process to harass and intimidate her – he emailed her demanding mediation and threatening to sue her new partner to force her to negotiate a reduction in his arears.

The court ordered that Edwards was prohibited from making further applications or continuing with any proceeding for four years without leave of the court and awarded special costs against him.

ADMISSIONS AND DETERMINATION

Edwards admitted to the court’ s findings; however, he submitted that the senior lawyer who was not involved in the matter had sent an email to the opposing lawyer stating that the $500 represented costs and should not be applied to the arrears, and that is evidence that he did not intend to frustrate or misuse the court process by making a payment to FMEP. The hearing panel found this amounted to “ damage control” and that his original intent was not remediated by the senior lawyer’ s email.

Edwards also submitted his conduct as a self-represented litigant in his own family law proceedings constituted conduct unbecoming, not professional misconduct. He referenced the distinction made in a previous hearing decision, in which conduct unbecoming referred to conduct in the lawyer’ s private life, while professional misconduct referred to conduct occurring in the course of a lawyer’ s practice.

The panel considered other cases in which lawyers were self-represented, especially when a lawyer’ s actions were directly related to their practice as a lawyer. It found that Edwards used his skills and experience as counsel to advance his personal interests. The panel found Edwards’ conduct amounted to a marked departure from the conduct that the Law Society expects of lawyers and is professional misconduct.

2020 LSBC 21 Decision on Facts and Determination