Law society tribunal found that lawyer failed to adequately supervise articled student; in part due to lack of familiarity with social media
A discipline tribunal of the Law Society of Ontario has disciplined a lawyer for professional misconduct entirely based on the use of social media and creation of websites by his articled clerk. The findings in Law Society of Ontario v. Forte were largely based on an agreed statement of facts. The lawyer, who was a sole criminal law practitioner took on his first articled student, Nadia Guo, at the end of June 2015. Within a couple of weeks, the articled student was arrested in a courthouse after an altercation with counter staff. She posted on Craigslist, Twitter and Reddit that she had been illegally arrested. She also made a number of very intemperate postings on the Criminal Lawyers’ Association listserve, got into arguments with list members and then tweeted about it. By the end of July 2015, the lawyer and the law society had received a number of complaints about the articled student’s postings.
Despite being the subject of complaints and some intervention by her principal, the articled student continued offensive postings on Twitter, including some that appeared to disclose confidential client information. A Crown attorney wrote to the lawyer, advising him that some comments posted on her Twitter account not only contained offensive language, but also referred to privileged and confidential information. The lawyer suspended her two weeks later, but in the meantime, the inappropriate online conduct continued:
[20] On December 14, 2015, Ms. Guo posted a series of tweets about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots. She also described them as having jobs that were incredibly “futile and outdated.” This incident led to a request by the Lawyer that the student apologize to the court staff at Old City Hall.
[21] On December 18, 2015, Ms. Guo then posted a lengthy apology letter on Twitter addressed to the court clerks in question. Although the letter apologized for the “poor choice of wording” used in the earlier tweets, it then repeated some of her earlier arguments about robots replacing court staff.
[22] Following the delivery of the apology, a Justice of the Peace e-mailed the Lawyer to advise that two of her clerks were “very distressed” about Ms. Guo’s conduct. She expressed concerns about the fact that the student’s tweets were unprofessional, uncalled for, and inflammatory. The Lawyer responded to this e-mail thanking the Justice of the Peace for drawing the student’s conduct to his attention, reporting that he had begun monitoring the student’s tweets, and agreeing that the posts in question were inappropriate and offensive.
[23] Following Ms. Guo’s suspension, she made private or deleted her Twitter account. However, for a period of time she continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”
[24] The Lawyer finally terminated Ms. Guo’s articles on February 20, 2016.
The Tribunal related a series of interventions the lawyer made respecting the articled student’s conduct.
[26] Beginning in July, the Lawyer had many conversations with Ms. Guo to attempt to educate her about the uncivil and intemperate tone of many of her communications. He also arranged for her to meet with seven other lawyers over time, five of them women, and several of those women racialized. He instructed her on various occasions to cease her Twitter activity and to apologize to those offended by her actions. The Lawyer also responded directly to court staff, crown attorneys, defence counsel and others who had been offended by her conduct.
[27] Unfortunately, none of the Lawyer’s efforts made any real change in Ms. Guo’s behaviour. On one occasion, for example, he ordered her to take down her Twitter account, only to learn that she had opened another soon after. After he ordered her to take the second one down, he learned she had been tweeting, without his knowledge, from his firm Twitter account.
[28] The Lawyer’s unfamiliarity with social media appears to have been a significant contributing factor. He appears to have only reviewed the student’s personal Twitter account during the CLA listserve incident, through his wife’s account. He never reviewed Ms. Guo’s personal website, which contained inflammatory and inaccurate material as well as information about client cases that had been posted without his consent. He allowed Ms. Guo to create a Twitter account for his firm, but never reviewed it at any time.
Ultimately, her unprofessionalism became his misconduct as he was responsible for the supervision of his articled student. And his lack of familiarity with social media may have contributed to the situation, it was not seen as an excuse:
[40] Unfortunately, the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control Ms. Guo’s Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.
[41] Given the facts outlined above, we determined that the Lawyer failed to assume complete professional responsibility for his practice by failing to adequately supervise Ms. Guo.
The tribunal ordered a reprimand, coaching, attendance at two law society continuing legal education programs and that the lawyer pay the Society’s costs of $3500.
