What’s the difference between a 71-year-old white lawyer charged with professional misconduct and incompetence, and a 29-year-old Black lawyer accused of the same? Interesting question.
The allegations against “Sydney’s senior lawyer,” 71-year-old Nash Terrance Brogan, seem, on the face of them, serious matters. According to a bill of particulars filed against him in August by the Nova Scotia Barristers’ Society under the general banner of “professional misconduct and professional incompetence,” Brogan had, over the course of a more than two-year investigation:
- conducted himself in a way that reflected adversely on the integrity of the profession and the administration of justice and failed to observe rules related to preservation of client property entrusted to the lawyer.
- failed to provide legal services to the standard of a competent lawyer when… he did not take diligent steps to have and implement a system to track pending limitation dates which resulted in approximately 17 missed limitation periods.
- allowed [his assistant to use his passcode]to perform work that could only be done by a lawyer and failed to properly supervise his assistant in his real estate practice.
- communicated with a person outside of his firm confidential client information.
- conducted himself in a way that reflected adversely on the integrity of the profession and the administration of justice and acted for a client in a conflict of interest when he loaned money to and acted… in matters in which he had a personal financial interest without ensuring that the transaction was fair and reasonable, the clients had full disclosure, the clients had independent legal representation, and in a situation where his duty of loyalty to the clients was compromised by his personal financial interest.
- failed to discharge his responsibilities with honour and integrity when he transferred the title of a client’s tangible personal property to one of his companies without good reason and refused to return title when asked by the client.
- communicated with another person in a manner that was abusive, offensive, and/or inconsistent with the proper tone of a professional communication from a lawyer.
Brogan was scheduled to appear via Zoom videoconference for a disciplinary hearing last Tuesday (October 12, 2021). By then, however, the society and Brogan’s lawyer had reached a quiet behind-the-scenes deal.
Brogan “readily” agreed to admit to all the charges and cooperate with the society to “fix” the problems in his practice — in exchange for a slap-on-the-wrist six-month suspension of his licence to practise law, after which, according to his lawyer, Brogan intends to resume his legal career.
As allnovascotia.com, the business website, paraphrased society prosecutor Bernadine MacAulay’s explanation to the disciplinary panel: “Brogan recognized his misdeeds and took steps to comply with regulations after issues were identified.” She described his six-month suspension as being in the “mid-range” of recent punishments.
Chimed in Brogan’s own lawyer, Christopher Conohan: “He certainly takes responsibility.”
All of this may be a fair and reasonable outcome, but it is perhaps worth turning over a context rock or two before reaching that conclusion.
Let’s start with another recent high-profile legal disciplinary case: the one involving Halifax lawyer Lyle Howe.
Four years ago, after the longest and most expensive hearing in bar society history, Howe was found guilty of the same all-purpose charge of professional misconduct and incompetence, disbarred for at least five years and ordered to repay the society $150,000 for its troubles before he would even be allowed to apply for reinstatement (that last requirement was later dropped).
While there are differences in the specifics of the charges against each man, there are also similarities. Brogan faced seven counts of misconduct; Howe was initially charged with eight instances, later reduced to six:
- Failing to deal honourably and honestly with clients, colleagues and other members of the profession.
- Failing to apply the right knowledge and skills to his job.
- Failing to follow advice on how to properly run his practice.
- Continuing to represent clients even when he was in a conflict of interest.
- Failing to treat the courts with “candour, courtesy, and respect.”
- Claiming things were true when that was not reasonably supported by evidence.
- Improperly trying to persuade a witness not to testify against his client (dismissed).
- Approaching and communicating with a person who was represented by other counsel for the purpose of representing them. (This charge was later dropped because there “was not sufficient evidence to proceed.”)
Let’s dig a little deeper. One of the ways in which Howe was supposed to have failed to treat the courts with “candour, courtesy and respect” was by double-booking court appearances, sending others to represent him or showing up late. Howe admitted as much but claimed other lawyers routinely did the same.
According to the charges against Brogan, he did indeed do similar and worse: he had “missed at least 17 court dates, allowed his non-lawyer assistant to do legal work with his personal lawyer’s passcode, and sent confidential client information to another person.”
Howe, it should be noted, was never charged — as was Brogan — with taking cash from clients and not placing it in trust or taking title to property belonging to a client and then refusing to return it.
So why such different penalties?
On the one hand, of course, Brogan “fell on his sword,” admitting all and promising to do better, which saved the society money and time. (That said, it should be noted that Brogan’s missteps can hardly be dismissed as those of a neophyte; he’s been a lawyer for 44 years.)
Howe, for his part, fought the charges against him every step of the way (and is still doing so), alleging he was a victim of racism in the profession and in the society.
Oh, yes, that is the other key difference here: Brogan is white, Howe is Black.
Ironically, the bar society last spring belatedly acknowledged and regretted what it called “the existence of systemic discrimination in our justice system and within the society.”
It didn’t mention the Howe case and hasn’t acknowledged since that its own membership is still in turmoil after Howe’s lawyer and life partner, Laura McCarthy, excoriated the society for its “empty words.” The society, she wrote last summer, “cannot move into a new chapter of trust and equality with their marginalized members and the public when there is so much discrimination dirt still under their rug.”
But wait… Aren’t there other factors at play here?
Wasn’t Howe accused of sexual assault?
Yes, he was convicted but those charges were later thrown out on appeal.
And wasn’t the most serious lawyering allegation against Howe that he had attempted to intimidate a witness into not testifying against his client? Yes, again, but that allegation was dismissed by the panel.
Nash Brogan? He has a history too.
Let’s start in 1992 during the provincial Liberal party’s leadership convention. The eventual winner, John Savage, asked the party to investigate what he said were claims by Brogan that he could “deliver” 250 phone-in votes for Savage to boost him over the top. His offer appeared to have been an attempt to get Savage to agree to appoint someone Brogan favoured as deputy leader.
The party did investigate and concluded that Brogan’s attempt to rig the vote “sullied” the party’s ground-breaking experiment in televoting, but it added it couldn’t do anything because “unlike most organizations, clubs or groups that can deal with membership and in fact discipline or remove them, we have no way of dealing with members at all.”
Not exactly an all-clear-here.
Six years later, Brogan was in the news again. On November 18, 1998, the Halifax Daily News carried a Canadian Press report about a barroom brawl that began:
A prominent Cape Breton lawyer will enter a plea in the new year on charges of assault causing bodily harm and unlawful confinement. Nash Brogan, 48, of Sydney is charged in connection with a Sept. 29 altercation. Police said a man suffered broken bones, cuts, and had teeth knocked out. Brogan will enter a plea Jan. 29.
My database search didn’t turn up the eventual outcome of that case, but there was a later story that noted: “Cape Breton Regional Police also filed two other charges Monday against Brogan claiming he breached his conditions of release.”
Flouting a court ruling?
Brogan was back in court again as a defendant in September 2019 when he was “charged with uttering a threat uttering a threat to cause death or harm to an individual.”
Jacqueline Mullenger, the society’s then-acting executive director, told a reporter, “It’s also important to remember that anyone accused of a crime is entitled to the presumption of innocence unless they are proven guilty in a court of law.”
Of course. [The news database doesn’t show how that case turned out.]
Even more interesting is another professional misconduct case by the bar society, which is currently unresolved.
In March, the society charged Sydney lawyer T. J. McKeough with eight counts under the ubiquitous professional misconduct and incompetence umbrella because of alleged incidents that occurred between 2013 and 2018.
During that time, McKeough, who was admitted to the bar in 2014, was a lawyer in Nash Brogan’s office. Although hardly court-tested evidence, McKeough told Frank Magazine last spring that the charges against him relate to orders he was following from Brogan. “I did stuff under his direction that I shouldn’t have,” he was quoted as saying.
So… we have two cases involving two controversial lawyers accused of often similar offences — and two wildly different outcomes.
Has our bar society yet had its racial reckoning? Will it ever?
A version of this column originally appeared in the Halifax Examiner.
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