Complaints, Lawyer Discipline and Public Hearings

Summary of the Decision of the Benchers on Review

Martin Drew Johnson

Kelowna, BC

Called to the bar: May 10, 1977

Bencher review: March 3, 2016

Benchers: Lynal E. Doerksen, Chair, Satwinder Bains, J.S. (Woody) Hayes, Dean P.J. Lawton, C.E. Lee Ongman, Carolynn Ryan and Jamie Maclaren

Decision issued: May 31, 2016 (2016 LSBC 20)

Counsel: Alison Kirby for the Law Society; Tony S. Paisana for Martin Drew Johnson

BACKGROUND

In March 2011, Martin Drew Johnson was involved in an altercation outside a courtroom with a police officer, who had previously arrested Johnson’ s client and was a potential witness. Johnson asked him a question related to the charge, and the exchange between them became heated and volatile. They were reportedly “ nose to nose,” and Johnson responded to some remarks by saying “ f*** you” to him. The officer then told Johnson he was under arrest, placed him in handcuffs and took him down the hallway. The officer sought to have charges laid against him for assault, but charges were ultimately not laid against Johnson for assault or any other offence.

A hearing panel determined that Johnson’ s behaviour was a marked departure from the standard of conduct that the Law Society expects of lawyers and constituted professional misconduct. Johnson was ordered suspended for 30 days and to pay costs of $10,503.05 (facts and determination: 2014 LSBC 08; disciplinary action: 2014 LSBC 50; Winter 2014 discipline digest).

DECISION OF THE BENCHERS ON REVIEW

Johnson applied for and was granted an extension of the time to apply for a review (2015 LSBC 40). He sought a review of the hearing panel’ s decisions, arguing that the panel erred in concluding that provocation is “ irrelevant” and should not be a defence to professional misconduct, in concluding that his actions constituted professional misconduct, and in overemphasizing his previous disciplinary record and giving little weight to letters of reference.

The defence of provocation is not recognized in the Legal Profession Act or the Law Society Rules. It is a partial defence in criminal law. The review board declined to apply it in this case, although it would be an error to say that it may never be a factor in a hearing panel’ s decision. The majority of Benchers (Doerksen, Bains, Hayes, Lawton, Ongman and Ryan) upheld the finding of professional misconduct by the hearing panel.

One Bencher (Maclaren) disagreed with the finding of professional misconduct. Maclaren stated that Johnson’ s comment was provoked by the officer and was a “ one-off” comment that was reflexive that had no ulterior motive. While the conduct was wrongful, Maclaren did not find it a “ marked departure” from the standards set by the Law Society.

In regards to Johnson’ s claim that the hearing panel overemphasized his disciplinary record, the Benchers determined that it was within the panel’ s discretion to give more weight to his past conduct as opposed to the positive letters of reference. Putting too much weight on letters from colleagues and friends of Johnson would detract from the Law Society’ s duty to protect the public interest. The Benchers upheld the penalty imposed by the hearing panel.

2016 LSBC 20 Decision of the Benchers on Review

2015 LSBC 40 Decision on Jurisdiction to Extend Time to Apply for Review

2014 LSBC 50 Decision on Disciplinary Action

2014 LSBC 08 Decision on Facts and Determination