Lyle Howe and the bar society’s Plan B

Lyle Howe (Jessica Durling, The Signal)

(This column originally appeared in the Halifax Examiner on April 24, 2017)

If you fear you might not succeed on your first try, you should have a Plan B already neatly tucked in your back pocket.

In advance.

Just in case.

That would seem to be the way the Nova Scotia Barristers’ Society is now approaching “IN THE MATTER OF the Legal Profession Act and the Nova Scotia Barristers’ Society RE: LYLE HOWE.”

On Wednesday, April 19 — at this twisted tale’s end of final legal arguments in what is the longest and most expensive professional misconduct hearing in Nova Scotia legal history —the bar society confirmed it has already served new charges on Howe, even before any decision has been rendered in the original case against him.

Howe says these new charges relate to allegations the society used to suspend him from practising law on September 1, 2016 — in the middle of the professional misconduct hearings, which had begun almost a year before that.

At the time, the society claimed these new allegations were so serious it had no choice but to proceed “without a hearing in order to protect the public because there is a public risk at this point.” Despite that, the society did not formally charge Howe in connection with those allegations until this month. And it still hasn’t made the details of its reasons for suspending him public.

While confirming the society has now served Howe with the new charges, society executive director Darrel Pink said last week he still “cannot comment yet on the number or nature of charges.” A spokesperson for the society now says the charges “will likely ‘go public’ sometime within the next 10 days.”

What is really going on here?

I have already written extensively about Lyle Howe and his controversial case, and his equally controversial argument that racism is at the beating heart of the case against him. (“Who is Lyle Howe And Why Are So Many People Saying Such Nasty Things About Him?” Part I and Part II;  and “The Lyle Howe Case: If You Look Hard Enough…” )

If Howe was looking for evidence he has been singled out by the bar society in ways other lawyers would not be — for whatever reason — the society seemed eager to provide it by piling on these new charges when it did.

Let’s step back for a moment.

If the panel hearing the professional misconduct charges against Howe — which sat for 65 days over 16 months since it began proceedings on December 10, 2015 — decides he is guilty of any, some, or all of the original seven charges against him, he could be disbarred. Given its approach to date, my guess is that would be the resolution the bar society favours.

If, on the other hand, the panel decides he isn’t guilty of all — or most — of those charges… well, what then?

The bar society clearly doesn’t want that to happen. So it’s filed the new charges as an insurance plan against the possibility Lyle Howe might be allowed to practise law again anytime soon — no matter the outcome of the hearing.

I haven’t seen the specifics of the new charges against Howe but — if they are based, as Howe suggests, on the allegations that led to his suspension last September — the new charges are similar to, and certainly no more serious than the ones for which he’s already been tried.

I did read the allegations that led to his September suspension, including the society’s own investigation reports, Howe’s written responses, and the transcript of the bar society’s complaints investigation committee meeting on September 1, 2016, at which the decision was made to suspend Howe.

There are a number of things that seem clear from reading that material.

The specifics of many of the new complaints appear picayune and related more to inconveniencing the courts and the system than with any real “public risk.” In one case, for example, Howe had noted in his diary — which he was supposed to maintain for his society-mandated practice supervisor —  that he would be appearing in court for a particular client on a particular day. It turned out another lawyer in his firm was actually representing the client. Despite the initial complaint, which was about Howe’s failure to provide adequate representation, “Mr. Howe appears to have never represented [the client],” notes the investigator’s report. “The only comment is that the incorrect entry in his diary would technically be in breach of practice restriction 7 to maintain an ‘accurate diary.’” Even the investigator adds, “this is a minor problem.”

The larger issue seemed to be that the bar society had lost whatever diminishing confidence it had in Howe to do as he’d been told. And so it suspended him. Without hearing his side of the story. Without even letting him know it was meeting.

At the time, according to the transcript, the society intended to “expedite” the matter. “If [the allegations] are to result in charges,” Darrel Pink told the complaints committee, “our intention would be have them added to the current charges. The closer we get to the end of the hearing, the more difficult that becomes.”

In the end, the society held off filing those charges for close to seven months. And they were never “added” to the original set of complaints so that they could be considered as part of the whole.

Instead, they were kept neatly in the bar society’s back pocket.

An insurance plan?

Or a sword to hold over Lyle Howe’s future, no matter what the current panel decides?

A version of this column originally appeared in the Halifax Examiner. To read the latest column, please subscribe.

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