A veteran British Columbia defence lawyer found guilty of professional misconduct for swearing at a police officer—a case that produced a memorable, eloquent ruling on the F-word’s prevalence in modern society—has been suspended for 30 days and ordered to pay the hefty cost of his proceedings.
As Maclean’s reported earlier this year, Martin Drew Johnson was hauled in front of a disciplinary panel of British Columbia’s Law Society after saying “F–k you” to an RCMP officer during a heated argument at the Kelowna courthouse in March 2011. Sixty-one at the time, Johnson was representing a man accused of assaulting his wife, and the Mountie (who has not been identified) was a potential witness.
During a break in the case, Johnson and the prosecutor hammered out a compromise that saw the charge dropped in exchange for a peace bond, prohibiting the accused from going anywhere near his estranged spouse. But when Johnson asked the officer to escort his client back to the family home to retrieve some belongings—and the Mountie refused—the two were soon nose-to-nose in the courthouse hallway. “F–k you,” Johnson said.
“You don’t scare me, you big-shot lawyer,” the Mountie allegedly replied. He then pointed to Johnson’s chest, which, by then, was close enough to be touching his. “That’s assaulting a police officer.” Moments later, the lawyer was in handcuffs.
In the end, Johnson wasn’t charged with assault (or any other crime) but the Law Society of British Columbia did accuse him of professional misconduct. At the heart of his case was a question most fellow lawyers can sympathize with: Is it ever excusable for counsel to curse on the job? In other words, does hurling a profanity always constitute professional misconduct, or are there rare moments when a lawyer can be so provoked that blurting out a “F–k you” is forgivable?
A “hearing panel on facts and determination” concluded earlier this year that it’s never acceptable, under any circumstances, to hurl such vulgar language inside a courthouse. Although the legal profession “can sometimes be hostile, aggressive and fierce,” the panel wrote, Johnson “had an obligation to ignore any ‘provocation’ by the witness, ‘rise above the fray,’ and act with civility and integrity in a dignified and responsible way that lawyers are expected to act.” Paragraph eight of the written reasons—a gem of Canadian jurisprudence—summed it up best.
“Obviously, we recognize that the use of the word ‘f–k’ in its various word combinations and permutations isn’t as taboo as it used to be,” reads the judgment, released in February. “For good or for bad, it is not uncommon to hear the word in its various forms on television or in the movies. Despite the argument that it is still ‘profane,’ we all know it is used in everyday conversation harmlessly and innocuously, although one probably would not use it with one’s mother or with small children in the room. It is used in humour, literature and music. It is used when one stubs one’s toe, falls down skiing, makes a mistake, or even as a form of self-deprecation. It is used by athletes in sports, and by disappointed or excitable fans. It has been used by presidents, prime ministers, Nobel laureates and Academy Award-winners. Its use is not going away, and nor should it. Consequently, we wish to make it clear that our decision is not meant to deny the use of a word in the English language that people may hear or use all the time, or otherwise interfere with one’s freedom of speech. Rather, we wish to make it clear to members of the profession that insults or profanity, if uttered in anger (whether using the F-word or not), directed to a witness, another lawyer, or member of the public in the circumstances and the place in which it was used by the Respondent, are not acceptable and can constitute professional misconduct.”
Permitting such conduct, the panel continued, “might well lower the reputation of the legal profession in the eyes the public and, arguably, bring the administration of justice into disrepute.”
A second hearing was held in June to determine the appropriate sanction, and this week, the panel finally released its conclusion: a 30-day suspension and an order that Johnson pay $10,503.05 to cover the cost of his disciplinary proceedings. “The profession must know that courtesy, civility, dignity and restraint should be the hallmarks of our profession and that lawyers must strive to achieve such,” the panel concluded. “The profession should also know that a marked departure from such standards will be sanctioned.”
Although counsel for the Law Society requested a two-month suspension and an order that Johnson complete an anger management class, the panel decided “that a significant cause of the conduct was the provocation by the officer” and that a 60-day ban would be too harsh. “We accept that the Respondent regrets his words and acknowledges that he acted improperly,” the panel wrote. “We believe that his likelihood of repeating similar conduct is unlikely and that he has learned from this experience. But we also appreciate that the practice of law can be stressful and demanding. Although we do not excuse his conduct, the Respondent is not the first lawyer in Canada to lose his temper and regret it.”
And certainly not the last.