Is the Law Society of Manitoba seriously flawed? You be the judge and jury!

Good Day Readers:

The genesis of this story goes back several months when we received a rather disturbing anonymyous e-mail containing serious allegations against Winnipeg immigration lawyer David Hirsch Davis. Because there was no substantiation it was not published. However, a recent posting on Truth To Power (Manitoba Lawyer David Davis - www.accesstoinfo.blogspot.com) hosted by a Canadian lawyer has given us cause to undertake further research.

Philip Slayton author of Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession during an interview with Maclean's magazine (Lawyers Are Rats - August 6, 2007) at page 21 said in part:

The disciplinary process of the law societies in this country is deeply flawed. Lawyers are disciplined for breaches of professional rules, but it's like so much in Canada: everything depends on where you live. What can get you disbarred in Alberta won't have much effect on you at all in, say, Nova Scotia. The first difficulty with the disciplinary system in that if you're a lawyer who's alleged to have stepped afoul of the rules, you're investigated by the law society. If they decide you're a transgressor, they'll prosecute you, they'll hire a lawyer to do that, and the disciplinary committee itself is the law society. So you have the investigator, the prosecutor and the judge all essentially representing the same institution. I thought in this country we had a fundamental principle, that the person who investigates and prosecutes isn't the same person who judges.

A Law Society of Manitoba disciplinary conviction cannot be located on Google at least not easily. For example, try to search yourself for "David Davis" using any combination of "lawyer" or "immigration" or "Winnipeg" or "Manitoba" to see if you can find the Law Society's record. We have tried numerous times with several different lawyers and never been successful. Our inevitable conclusion: the Law Society's pages are not "searchable" using Google and, therefore, are shielded from public internet scrutiny.

This is a critical flaw in how the Law Society of Manitoba's website is organized significantly undercuting the legitimate "shaming" aspect of publishing its disciplinary records. We have noticed this with other Law Society sites such as the Law Society of Alberta and the Law Society of Upper Canada (Ontario's archaically and pretentiously titled Law Society).

Essentially Truth To Power attempts to remedy these shortcomings by posting convictions. Otherwise, how would many clients - especially unsophisticated immigration applicants from other countries with limited English skills - know to check the Law Society of Manitoba site? If this why they've been called "Flaw Societies?"

If you would like to comment on this article, please contact pieuk@shaw.ca.

The Law Society of Manitoba
219 Kennedy Street
Winnipeg, Manitoba
R3C 1S8
Telephone: (204) 942-5571
Fax: (204) 956-0624
Website: www.lawsociety.mb.ca
General E-Mail Adderss: admin@lawsocity.mb.ca

Chief Executive Officer: Allan Fineblit
Afineblit@lawsociety.mb.ca

Discipline Department

Leah C. Kosokowsky, B.A. LL.B.
lkosokowsky@lawsociety.mb.ca

Richard C.M. Porcher, LL.B
Discipline Counsel
Direct Line: (204) 926-2019
General Telephone: (204) 942-5571
Facsimile: (204) 956-0624
E-Mail: rporcher@lawsociety.mb.ca

David Hirsch Davis
Davis Immigration Law Office
210 - 233 Portage Avenue
Winnipeg, MB R3B 2A7
Telephone: (204) 956-2336
Fax: (204) 975-1655

Website: www.daviddavislaw.com
Email: ddavis@daviddavislaw.com

Sincerely,
Clare L. Pieuk

----------------------------------------------------------------------------------
Manitoba Lawyer David Davis

Case 01-04
DAVIS, DAVID HIRSCH - Winnipeg, Manitoba

Called to the Bar
June 29, 1989
Particulars of Charges
Conduct Unbecoming
Sexually harassing client, contrary to Chapter 20 of the Code of Professional Conduct
Date of Hearing
May 23, 2001
Panel
D.J. Miller, Q.C. (Chair)
J.E. Neufeld, Q.C.
W.W.A. Riedel, Q.C.
Disposition
45 day suspension costs of $1,000.00
Counsel
C.K. Dangerfield for The Law Society of Manitoba
R.L. Tapper, Q.C. for the Member
_____________________________________________
Sexual Harassment
_____________________________________________
Facts

Mr. Davis represented a client in respect of her claim for convention refugee status before the Immigration and Refugee Board for a period of approximately six months commencing in July, 1999. Between July, 1999 and December, 2000 Mr. Davis sexually harassed his client by making comments and overtures of a sexual nature to her. Notwithstanding her resistance to his overtures, he kissed her, or attempted to do so, on a number of occasions. He attended at her home and presented her with a gift which she refused to accept.

Mr. Davis admitted that he had sexually harassed his client and that his conduct amounted to conduct unbecoming a barrister and solicitor.

Decision and Comments

The Committee determined that Mr. Davis had sexually harassed his client in circumstances where he could reasonably expect that his conduct would cause her discomfort, given that she explicitly and consistently resisted his advances.

The Committee concluded that sexual harassment is a serious type of professional misconduct in that it involves a breach of trust that fundamentally undermines the lawyer/client relationship. As such, the breach can be as serious, or more serious, as one resulting from the misappropriation of trust funds.

In the circumstances of this case, the seriousness of the member's conduct was buttressed by the particular vulnerability of the client. Mr. Davis was aware that her claim for refugee status was based in part on the client's allegations of sexual harassment and sexual assault suffered at the hands of her employer prior to fleeing to Canada.

Penalty

The Committee concluded that a suspension of 45 days was appropriate. Had it not been for the member's genuine remorse, his history of service to the legal and volunteer communities as well as his prior good character, the Committee would have been inclined to impose a suspension of a longer duration in accordance with the seriousness with which the Committee viewed the member's conduct.

The member filed an appeal to the Manitoba Court of Appeal from the Committee's decision with respect to sentence. The appeal was dismissed on September 6, 2001 with costs.