(Toronto Sun)

PART II: The un-making of Lyle Howe

“I have gained some valuable wisdom from this matter, and all young men should benefit from the things I have learned without going through what I have gone through. Being innocent isn’t enough.
Having legal education and a good lawyer is sometimes not enough.”

Lyle Howe
Post to Black Nova Scotian News Facebook page
June 2, 2014

“Black guy from the inner city of Halifax overcomes a lot of odds, grows up, goes to university, survives that environment, goes to law school, gets a law degree, all the while watching his peers fall by the wayside, many of whom would not have experienced his success or would have been able to escape poverty or escape the lure and the trap of criminality…
He jumps through all the hurdles necessary to become a lawyer, opens a practice, is defending individuals whose experience he would be very familiar with in many cases,
in a system that is as foreign to him in some ways as it is to the people he’s defending…
who’s daily encountering lawyers and judges and even sheriffs and court officials who are white,
that within that context of being perceived as perhaps less able or less worthy, that having a practice that is consumed with this day after day after day, without the support of senior colleagues, without individuals in his personal life who could even understand the circumstance that he’s in…
I could imagine him developing a… maybe an attitude in his practice or an edge to his practice that is a …
well, if I use the word “zealous” or “activist” nature to his practice,
I would say that perhaps that wouldn’t be uncommon.
But perhaps even an element of energy in his practice that is really the result of being triggered
by these dynamics that I’ve described.
 That was certainly a concern I had for Mr. Howe.”

Robert Wright
Expert witness
Bar Society Hearing into Allegations Against Lyle Howe

“We have to talk,” Wayne Bacchus said, ushering Lyle Howe into his office. “We’ve got a big problem.” It was June 20, 2011, and Lyle Howe had been practising at Bacchus & Associates for just six months.

After graduating from law school in 2009, Howe had been invited to article with Boyne Clarke, a large, full-service law firm in Dartmouth. But when his articles ended a year later, he wasn’t invited to stay on. Howe couldn’t help but notice Boyne Clarke boasted only one black lawyer. Or that, of the five article clerks taken on at the firm in his year, the only two who weren’t hired were Howe and an aboriginal woman. When Howe brought this up with senior partner Gordon Proudfoot, Proudfoot insisted the firm was a “meritocracy and if I was to suggest anything else, it simply was not true.”

“When you’re black and you graduate from law school,” Howe responds, “it’s hard to get an articling position. It’s even harder to get hired afterwards.” That, he says, explains why so many black lawyers quickly abandon hope of plying their trade with large law firms (with their support services) and end up instead working for government, or legal aid, or just practising on their own. According the bar society’s own numbers, only 23 — just over one-third — of the province’s 63 self-identified black lawyers currently work for law firms, and only six of them are partners.

For all that, Howe says he wasn’t unhappy with his actual experience at Boyne Clarke. “I’m grateful,” he says. “They treated me well. They gave me the chance to article. I got a good salary. They paid for my bar course, they helped me with stuff.” He pauses. “But we know that’s where it ends.”

Whatever role race may have played in the firm’s decision, Howe acknowledges it wasn’t the only factor, or probably the most significant. “I wanted to be a criminal lawyer, and I made that clear, perhaps too clear.” Boyne Clarke didn’t have a large criminal practice and it already had experienced lawyers on staff who covered that area.

Since he didn’t want to go into government or legal aid, Howe took the advice of one of the firm’s senior lawyers and signed on with Bailey & Associates, a small Dartmouth firm that focused on criminal matters. Brian Bailey, Howe says, had a reputation for giving young criminal lawyers good training, but also for being unwilling to allow them to develop their own caseloads or become partners. “My vision,” Bailey says in his own LinkedIn profile, “is to have my two sons take over the firm.”

Howe’s eagerness to polish his personal reputation as a criminal lawyer quickly came into conflict with Bailey’s need for control. The flash point was a high profile 2010 murder case. Although “the client wanted me,” Howe says Bailey went to see the accused in jail and had him sign a form designating Bailey as his lawyer. “The client called me. He said, ‘I don’t want this old white guy. I want you.’”

Howe discussed the situation with his wife Laura, who was by then in law school herself. She advised him he needed to find a more collaborative, supportive place to work. After making a deal to join Bacchus, Howe and Laura slipped into Bailey’s office in the middle of the night and moved the files Howe had developed to his new office at Bacchus & Associates.

Perhaps that was why Bacchus was “freaking out” this morning, Howe thought. Perhaps Bailey was threatening to take action against Howe over the missing files. He wasn’t.

By then, Wayne Bacchus had mixed feelings about his energetic 27-year-old associate. Although there had been early conversations avout a potential partnership down the road, Bacchus initially brought Howe aboard only as a self-employed associate lawyer, which meant the firm covered his overhead and Bacchus provided Howe with advice on cases. In exchange, Howe paid Bacchus a percentage of the fees he collected.

That had turned out to be far more lucrative than Bacchus expected. In six months, Howe had created a client base “that was far and above average” for a lawyer of his age and experience. He was doing so much business, Bacchus ended up hiring an extra assistant just to keep up.

Howe with client Trevor Zinck.

Howe even snared high-profile clients, like provincial MLA Trevor Zinck, who had been charged in May 2011 with theft, fraud, and breach of trust in connection with an MLA expenses scandal that had rocked the provincial legislature. Not everyone thought that wise; several older lawyers complained to Bacchus: “What’s Trevor Zinck doing with such a junior lawyer?”

Was it jealousy? A sense that Howe was too young — or perhaps too black — to  be sucking up so much of the criminal legal spotlight? Or was it simply genuine concern the young lawyer was stretching himself too thin too soon, that he really wasn’t ready for the role he’d taken on?

Bacchus did genuinely like Howe. But… Crowns and others were already complaining to him that Howe would be so busy — or so sloppy — he would show up late for court, or book himself in two courtrooms at once, forcing delays and gumming up the legal works. Even though Howe was technically self-employed, Bacchus believed the criticisms reflected back on himself and his firm.

To make matters worse, Bacchus says he was hearing grumbling from other lawyers about exactly how Howe was attracting all those clients. He was an aggressive marketer, Bacchus knew. He advertised in the Yellow Pages, and drummed up bread-and-butter business in the courthouse hallways among those charged with drug and weapons offences. Many were young black men who were surprised — and grateful — to have a black lawyer representing them.

When Howe walked through the Dartmouth provincial cells on his way to interview a client, he would often talk through the bars with other prisoners and hand them his business card. At one point, Sherriff’s officers suddenly stopped allowing him to wander through the cells. When Howe complained, they said it was a new policy — a safety issue — and it applied to everyone. (“Since when is a business card a lethal weapon?” Howe asks.) But Howe soon noticed other lawyers continued to be allowed to use the cells corridor. “So I brought in a camera and filmed them letting other lawyers in,” Howe says. Eventually, the policy was applied to everyone. “That,” admits Howe, “pissed off the other lawyers.”

Bacchus would recall later that Howe had “an interesting business analysis” of what was actually going on in those Dartmouth provincial cells. “The Newton Boys” — also known as Newton & Associates, another Dartmouth law firm — had a lucrative “cells” contract with Nova Scotia Legal Aid to represent jailed indigent clients Legal Aid couldn’t handle. The last thing the Newton boys wanted was for someone like Howe — an African Nova Scotian from the wrong end of town who knew many of those waiting in the cells — to show up in his lawyer’s suit with his business card and pick off clients who would otherwise be theirs.

Their complaints were beginning to frustrate Bacchus. “Why are you getting singled out so much for this, this, and this and this?” he would ask Howe. Bacchus had thought he could manage Howe, he would admit later, but he was getting tired of all the “hassle… My patience was wearing very thin.”

And then… “Are you involved with drugs?” Bacchus put the question to Howe immediately after he’d closed the office door that June morning in 2011. “Are you a drug dealer?”

Howe was incredulous “Do you think I’d be sitting here with you if I was a drug dealer,” Howe joked. But Bacchus wasn’t in the mood for jokes.

Another defence lawyer had informed Bacchus police were about to charge Howe with sexual assault. Bacchus had confirmed that information with several Crown prosecutors, he told Howe, including one who told him the rumours police were also investigating Howe for drug trafficking.

“Whoever told you any of that is a liar,” Howe replied hotly.

But it didn’t matter. Bacchus was well aware how news that one of his associates had been charged with a serious crime would affect his law firm’s reputation — and its bottom line. He wanted Howe out. And soon. They eventually agreed Howe could stay on until August — unless he was charged, in which case “I would have to remove my stuff immediately.” But they also tentatively discussed the possibility of Howe continuing with the firm if no charges were laid.

That would soon become moot.

***

On the morning of November 21, 2011 — less than four months after Howe had left Bacchus and hung out his sole practitioner’s shingle as Howe Law — Howe dropped Laura off at law school and stopped at the Irving Station on Quinpool to fill his car’s tank for the journey to Truro, where he had another case. That’s when two female police officers pulled up beside him. They were arresting him, they told him, for drugging and sexually assaulting a 19-year-old white woman. By this point, Howe wasn’t as surprised as he’d been when Bacchus first confronted him; in August, police had asked him to provide a DNA sample.

And then, less than two weeks later, Howe was criminally charged again, this time with uttering threats in an unrelated case involving a former client.

That charge collapsed six months later, on the day Howe was supposed to go to trial. The day before, Howe’s lawyer, Mike Taylor, had come to him with a plea deal. The Crown would agree to drop the charge against him, he said, if Howe agreed to sign a peace bond. If he agreed, he’d avoid the possibility of a criminal conviction and the potential consequences of that.

“No,” Howe said flatly, instructing his lawyer instead to “go watch the tape.” From the moment he’d hired Taylor to represent him, Howe insists he had been telling the lawyer to get a copy of the surveillance video from the cells the day of the alleged incident. Taylor finally did.

The complainant, William James Lewis, who had what Taylor would later call “a horrendous history for fraud and fraud-related offences,” including 60 convictions, alleged that Howe reached through the bars of his cell, took a swing at him and warned Lewis to be careful what he said about him or Howe would have someone do Lewis harm when he ended up at the Burnside jail.

When Taylor viewed the videotape — the only evidence beyond Williams’ allegations — “I was struck by the fact that not only did it not show Mr. Howe doing something wrong, it showed that he didn’t do anything wrong.”

Why didn’t the police look at the video? Or did they, and chose to charge him anyway? In the end, it had taken prosecutors six months to inform the court “the Crown has reviewed the available evidence and it appears there’s not a reasonable prospect of a conviction.”

After the judge dismissed the charge on Match 16, 2012 — the day Howe’s trial was scheduled to begin — reporters asked him why he thought the case had been handled as it had. He demurred, but added: “I think keen members of the public should be asking themselves what actually happened here. Why did we get this far and then charges are dropped on the day of the trial?”

***

Lyle Howe arrives at court with his wife Laura McCarthy.

The sexual assault case, however, was not dropped, and it led to a jury trial that began in the late spring of 2014.

The charges — sexual assault and administering a stupefying drug — were the result of an incident that had happened on the night on March 21, 2011, five months before Howe opened his own practice.

The Crown alleged Howe called the complainant that day trying to arrange a date with her for his friend Jeffrey Brown. Howe — whom the woman would testify she didn’t know — told her he would accompany them as Brown’s “wingman” because his friend was shy. The then-19-year-old woman says she looked up Howe’s name on the Internet and was relieved to find he was a lawyer. “I figured if he was a lawyer, he wouldn’t be doing anything to jeopardize his career.”

The three of them went for drinks at Freeman’s Little New York bar on Dutch Village Road. Later, they stopped at Howe’s then-law office on Mumford Road where they continued to drink. The woman said she couldn’t remember parts of the 45 minutes they spent at the office. After that, Howe and the woman drove to her apartment where they played pool. Brown arrived with them, but then left, returning 40 minutes later after Howe telephoned to say the woman wanted to have sex with both of them. When he returned, Brown testified he was greeted at the apartment door by the woman, now naked except for a robe that was hanging open. Brown said she seemed tipsy but not drunk. He later saw Howe having sex with the woman, using multiple condoms.

The woman testified she didn’t remember almost anything that happened at the apartment that night after sitting on the sofa and moving to kiss Howe when he asked her to. She awoke the next morning, dizzy and disoriented. She didn’t remember having sex, but said she was sore and there were condoms all over her apartment.

About 24 hours after the incident, the woman was examined by a nurse from the Avalon Sexual Assault Centre, who found bruising on her breastbone and breast, and said there were physical signs intercourse may have taken place. An RCMP forensic toxicologist who also examined her that day testified he found no alcohol or drugs in her blood at the time, but there were traces of morphine and codeine in her urine.

Testifying in his own defence — with his wife, Laura, seated in the front row of the courtroom — Howe acknowledged he and the woman had engaged in “sexual touching” while playing pool, and then had had oral, vaginal, and anal sex. But he claimed it had all been consensual. “She told me she had fun,” he testified.

In the end, the case came down to he-said, she-said credibility. Did she consent? Could she have consented? Had she been drugged? As Howe’s lawyer, Mike Taylor, put the defence argument: “The complainant regrets the situation that she got herself into and regrets it taking place.”

Protestors argued that Lyle Howe was a victim of racism.

The jury, however, sided with the woman, convicting Howe of sexual assault. But intriguingly, they dismissed the charge of administering a stupefying drug, which had seemed central to the prosecution’s argument the woman had been rendered incapable of consenting to sex.

One June 2, 2014 — the first business day after Howe’s conviction — the bar society formally suspended him from practising law and appointed another lawyer to wind up his practice.

Two months later, Chief Justice Joseph Kennedy — acknowledging it was “reasonable to speculate [Howe] will never practise law again” — sentenced him to three years in prison, required him to submit a DNA sample, and ordered his name be added to the national sex offender registry.

“I’m certainly not proud of what I did,” Howe conceded in court. “I’m embarrassed by it. I am remorseful.” But he continued to insist the sex had been consensual.

Nearly a year later, in September 2015, the Nova Scotia Court of Appeal concluded Howe had been wrongly convicted. “The [judge’s] failure to instruct the jury with respect to honest but mistaken belief was an error,” Justice David Farrar wrote on behalf of the three-judge panel. “I would allow this ground of appeal and order a new trial.”

That new trial never happened; the Crown decided not to proceed, primarily because the complainant did not want to go through a second trial. “In some cases we do compel the witness to testify again,” prosecutor Dan Rideout explained to reporters. But “we had to consider the unique nature of the case, including several days of testimony, grueling testimony that she had to go through the first time, as well as other things that would have influenced her decision.”

Although the bar society reinstated his licence soon after his conviction was overturned, they imposed 37 conditions on him, including prohibiting from working as a sole practitioner and announcing they would appoint a senior member of the bar to supervise his practice — with Howe responsible for the costs.

In fact, even before the appeal court overturned his conviction, the society filed eight charges of professional misconduct and incompetence against Howe in connection with incidents that had allegedly occurred between 2011 when he began his practice and 2014 after he’d been wrongly convicted of sexual assault. The included:

• 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.
• 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.”)

***

Lyle Howe had been on the Nova Scotia Bar Society’s investigative radar since June 2011 when he was still a first-year lawyer practising with Wayne Bacchus — which, of course, was also at the time rumours had begun circulating in the legal community Howe would be facing criminal investigation.

Between June and October 2011, the society received five complaints about Howe. Four of those complaints — including the “uttering threats” allegation from William James Lewis — were dismissed outright, while Howe was “counseled” as the result of the fifth. Counseling simply means that, while nothing in the complaint merited a finding of “professional misconduct, conduct unbecoming, professional incompetence or incapacity,” the society had determined Howe “could benefit from professional guidance from the society.” In Howe’s case, the society appointed lawyer John Rafferty to conduct a practice review.

Rafferty looked into a number of performance-related issues, including concerns Howe often double-booked himself in different courtrooms at the same time, didn’t maintain proper documentation for his cases, and — more generally — was juggling too many files for his experience. In his report, Rafferty quoted Howe’s former boss Wayne Bacchus suggesting Howe had too many clients and should decrease his file load. Bacchus, however, would later take issue with that characterization. When he testified before Howe’s disciplinary hearing, Bacchus told the panel: “I can’t see me wanting any lawyer to decrease his file load as opposed to managing it, because increased file load is increased money.”

For his part, Howe says he didn’t do anything — double-booking, showing up late for hearings — other lawyers don’t also routinely do. The difference, Howe says, was that, from the moment the bar society began reviewing his practice, they developed a “hyper-vigilance” about any mistakes he made. Being black, he adds, made him easier to pick out of a crowd.

He points to one pre-trial conference in Dartmouth provincial court that happened later, in February 2014. Howe had a case in Halifax that day, so he asked another lawyer to represent him on what he understood were routine matters. “Then I got a call. Get over here. The judge is upset.” When he arrived, the judge, Alana Murphy, moved the conference from an informal discussion in chambers to an on-the-record hearing so she could make her displeasure public.

“I just want to make it very clear,” Murphy lectured Howe in open court, “your personal attendance is always required for pre-trial conference. You cannot just send in some substitute lawyer. The person that’s got carriage of the file is the person that needs to attend at a pre-trial conference. Otherwise, they’re pointless.”

“Yes, your Honour,” Howe replied.

But it turned out neither the Crown counsel nor the other defence lawyer that day were actually, at the time, counsel of record on the case. Like Howe’s stand-in, both were “substitutes” acting on behalf of other lawyers who had actual “carriage of the file.”

“So why single me out?” Howe asks.

He wanted to put that question to Judge Murphy, as well as ask her why she sent transcripts of several trials in which he was involved to the bar society. But the inquiry panel turned down his request to call the judge — or any sitting judge — as a witness.

***

After Rafferty completed his practice review, he and Howe discussed the concerns Rafferty had raised.Howe himself describes Rafferty’s suggestions as “constructive criticism.” And the society’s complaints investigation committee determined Howe had taken the concerns seriously, “and was going to make positive changes.”

In fact, there were no further complaints filed against Howe until the spring of 2013.

But there was, of course, the gigantic elephant in the room — the criminal sexual assault charges, and the threats charges — which Victoria Rees, the bar society’s director of professional responsibility, acknowledged “added to the issues on the plate of the society… [and] caused the [complaints investigation] committee to want to certainly try to engage with Mr. Howe to find out what was going on, what was the cause of all of this, and also to reach out to him to see how he was coping.”

That fall, lawyer and legendary African Nova Scotian human rights icon Rocky Jones volunteered to mentor Howe. But the society — wanting to “make sure it was somebody of sufficient seniority and knowledge of the rules of ethics and criminal defence that they could provide some solid guidance at our cost” — opted instead to ask Anne Malick, a white woman who was a managing partner at Nova Scotia Legal Aid and the former chair of the society’s ethics and professional responsibility committee, to be Howe’s mentor. For whatever reasons, Rees testified, the mentorship “didn’t work out.”

In the spring of 2013, while Howe was juggling the demands his own legal practice and preparing to defend himself against the sexual assault allegations, there were a new spate of complaints against him. In February, Judge Alana Murphy called the bar society to ask what authority a judge had to deal with issues in her court, and raised a number of concerns she said she and others had had with Lyle Howe’s performance — and candidness — in her and other Dartmouth courtrooms. The society hired then-lawyer (later judge) Elizabeth Buckle to investigate.

In September, there was a complaint from a former client who claimed Howe had not properly informed him of his options in a driving-under-the-influence case. During the hearings, Howe disputed the client’s version of events. Although it’s not always clear from the complaints themselves, most of the allegations against Howe appeared to begin, not with his clients but with a fellow lawyer, or Crown attorney, or judge. “All charges are the result of an investigative process that does not depend on the source of the original information that resulted in the investigation,” Darrel Pink tells me when I ask who actually complained. “I am not able to break out the sources of the original information.”

But then, on October 2, 2013, a bombshell landed in the bar society’s inbox. Adrian Reid, the deputy director of the province’s public prosecution service, formally alleged Howe had been involved in “potential misconduct” by attempting to intimidate a witness into not testifying against his client.

Howe’s client had been charged with “two counts of uttering threats, two counts of assault with a weapon, and a count of possessing a weapon for a purpose dangerous to public peace” in connection with an incident outside the alleged victim’s home in January 2012. When he pleaded not guilty in May, he was represented by another lawyer. Sometime between then and his scheduled trial date in February 2013, Howe took over. As a result, the hearing was postponed and a new trial date set for September 24, 2013.

Michelle James

On the day the trial was supposed to begin, according to prosecutor Michelle James, Howe called to ask for disclosure documents in the case. James, who testified it was standard procedure in such situations is to ask the new lawyer to get disclosure from the client’s original lawyer, eventually agreed to send Howe pdfs of some witness statements but refused to spend her lunch hour photocopying documents she believed Howe should have obtained on his own.

Howe and James had a history. In October 2011, she had reported Howe to the bar society for what she called his “ongoing and pervasive” double bookings and late arrivals. At the request of the bar society, she’d canvassed her fellow Dartmouth Crowns to see if they had similar concerns. Although Howe now says he believes James was out to get him, James testified the two had a “civil” relationship between then and the 2013 incident.

Although Howe insisted he was ready to go to trial, James testified she believed the fact he still didn’t have full disclosure meant he wasn’t. She debated whether to raise the matter with the judge.

While she was considering that, Howe asked James if she’d mind if he pre-interviewed the complainant’s wife, who’d been a witness to the altercation. James testified she asked the woman to see if she’d be willing. She was but asked James to be there with her. Howe had no concerns about that, so the three of them proceeded to a small interview room on the second floor of the courthouse building.

Howe told the woman he wanted to give her a “heads up” about his plans to cross-examine her. According to James, Howe added, “if she testified — not when but if…”

By this point, both Howe and James knew the accused’s father had written a letter to prosecutors alleging there had been a prologue to the confrontation between his son and the man and his wife.

Howe claims that, like any good lawyer, he simply wanted to know what the woman would say about that on the stand at trial. “I wanted to gauge her answer. Should I ask the question in court? Lawyers do that all the time.” In the interview room, he asked her: “Did you or your husband kidnap [my client] for drug money and sell him back to his dad?”

The woman — whose husband had died between the altercation and the trial — was taken aback.

According to James, Howe then followed up: “Well, if we can resolve this with a peace bond,” he told her, “my client probably won’t start a private prosecution against you.” Howe claims he was simply responding to the situation in the room. “Prosecutors threaten charges all the time if a witness doesn’t cooperate. I was just doing my job.”

But at that point, James testified, “I more or less lost my mind. ‘We’re not about to be fucking extorted by you!’” she shouted, leading the woman out of the room. ‘This interview is over.”

Back in her office, James wrote a full account of what she says she’d witnessed and eventually took it to her boss, Adrian Reid, who turned it into yet another formal — and much more serious — complaint concerning Lyle Howe.

By then, Howe himself had already called the bar society’s Victoria Rees to express concern about the incident between him and Michelle James and how that might affect his reputation. He laid out his own perception of what had happened — he wondered if he was perceived as “threatening because I’m a black man” — and asked Rees if he should file a complaint against James. “I indicated that while he’s free to file a complaint against Michelle James,” Rees would testify, she advised Howe “it would be better to try and find a way to work better with opposing counsel rather than having the matters escalate, particularly because it wouldn’t be in the best interest of his client.”

Howe did not file a formal complaint.

And Rees would later acknowledge she did not advise either James or Reid to “find a way to work better” with Howe.

But the day after Reid’s complaint, the society’s investigation committee ordered yet another review of Howe’s practice, this time by Stan MacDonald, a senior criminal defence lawyer, who Howe saw as a rival for business.

The result of this review was similar to the first. Testified Rees: “Mr. Howe’s substantive knowledge was not in question. I think it’s fair to say he’s very knowledgeable in criminal law, and so it was almost primarily about quality of service, documentation, client management, file management issues, and volume issues that lead to conflicts of interest and so on.”

MacDonald reported Howe had close to 300 clients — more than he himself had — and was charging top dollar ($350 an hour) for his services despite his own inexperience. For his part, Howe tells me: “Stan said I had too many cases; I thought I could do more.” By then, he’d been joined in his practice by his wife Laura, who’d been admitted to the bar in June 2013. “My real problem was with all these ‘old white guys’ telling me what I couldn’t do.”

But the society considered the issues MacDonald raised serious enough they formed the basis of yet another complaint against Howe and, as a result, the society ordered Howe to hire yet another lawyer — at his own expense — to serve as his daily practice supervisor.

At the same time, in order “to better understand the range of factors contributing to Mr. Howe’s conduct and poor judgement, to demonstrate cultural competency and sensitivity as appropriate and take this into consideration when designing practice requirements,” the society ordered Howe to “enter into counselling and therapy” with veteran African Nova Scotian social worker and consultant Robert Wright, who himself had served on the society’s racial equity committee.

In a follow-up email, Rees noted: “the purpose is to meet with the member, help them identify and understand their background and cultural issues and the potential impact these have on current behaviour, and how to better cope with this. It is often helpful to the member as well as the decision makers in receipt of the report,” she wrote, adding: “As Dr. Wright aptly has said, he’s often seen problems when professionals ‘bring the ’hood into practice.’”

“The ’hood into practice…” Howe shows me the email, repeats the phrase. “What does that mean?”

In his eventual report, Wright put it another way. Describing Howe’s racial worldview as closer to a militant black leader like Malcolm X than the more integrationist and acceptable-to-white-sensibilities Martin Luther King, Jr., Wright suggested “a significant part of the challenges that Mr. Howe experiences is related to his status as a black lawyer and the multi-generational and certainly lifelong experiences of racism, discrimination and racial trauma that he has suffered. [Howe] has a deep, natural and historically understandable distrust in white folk and their systems or their ability to care about and understand his [situation]… ”

Howe was also ordered to pay for Wright’s counselling services.

It’s worth noting the society kept piling on these extra costs even as it encouraged Howe to reduce his caseload, and at the same time he was racking up his own private legal bills while his lawyer prepared for his sexual assault trial.

***

On September 1, 2016, 13 members of the bar society’s complaints investigation committee gathered in secret to discuss what to do about Lyle Howe. Again. The committee hadn’t informed Howe of these new allegations against him, or about today’s meeting, or offered him an opportunity to refute the allegations.

By that point, the hearing into the original seven formal complaints against Howe had already lasted 36 days spread over nine months — and the case was far from over.

By the time it ends — likely with closing arguments in late March — “IN THE MATTER OF the Legal Profession Act and the Nova Scotia Barristers’ Society RE: LYLE HOWE” will have occupied 62 days’ worth of hearings and cost over $1 million, making it the longest and most expensive disciplinary hearing in bar society history.

That’s because Howe not only chose to fight the specific charges against him but because his defence also raised an inevitably fraught question: was race, and racism, really at the beating heart of the society’s case against him?

The members of the complaints investigation committee knew that issue was one of the sparring points in the ongoing hearing. But they also believed Howe had “breached” earlier conditions the committee had imposed on him, the ones that had led to the ongoing disciplinary hearings.

Ray Larkin

They felt misled. As Halifax lawyer Ray Larkin, who represented the bar society, told the committee that day: “For a lawyer who’s under conditions and who has come to this committee and given his confident assurances that he’s learned from his mistakes, from his experiences, he’s fixed what his previous shortcomings were, and led this committee to believe that he had put in place, both his own personal characteristics and his organization, that he would be able to follow the conditions in the future… [Howe’s] breach of integrity, the breach of honesty is extremely serious…

“I submit to the committee,” Larkin continued, “that the credibility of the Nova Scotia Barristers’ Society as a regulator of the legal profession to the provincial court, to the public prosecution service, to the defence bar, to clients who have been let down and, unfortunately, the public because Mr.  Howe’s conduct has a lot of notoriety about it, that the credibility of the society as looking out for the public interest in the regulation of lawyers is at stake in this matter.”

For the committee members, this was simply the last straw. They voted unanimously to suspend his licence to practice law, effective immediately.

Lyle Howe saw the situation differently. The committee’s decision to suspend him without hearing his side of the allegations, without even considering that these were not the kind of protect-the-public situations that normally merited such unilateral action, was one more indication the society was treating him differently because he is black.

And, of course, as a practical matter, suspending his licence to practise — to earn a living — would make it even more difficult to defend himself against the original charges.

So is Lyle Howe guilty of the charges against him — or is he the victim of a system that is stacked against him?

Or could, in fact, both be true?

***

Lyle Howe (Jessica Durling, The Signal)

Let’s review. Lyle Howe was a poor black kid from the wrong side of the Halifax racial divide, but he was smart, ambitious, determined. He began reading up on the LSATs — law school admissions tests — while he was still in high school, and was admitted to law school on his academic merits.

Law school, for a variety of reasons, turned out not to be what he’d expected, or hoped. Howe says he wasn’t alone; he tells me a black professor he complained to once showed him a file “this thick” filled with similar experiences other black law students had endured at Dalhousie’s white law school.

Which is also why he says he wasn’t surprised — disappointed but not surprised — when he wasn’t offered ongoing employment at the prominent Dartmouth law firm where he articled.

Howe refused to let any of that deter him. He made himself into the criminal defence lawyer he’d dreamed of being, albeit as a sole practitioner and with few of the supports lawyers in bigger firms traditionally depend on.

Perhaps to prove he was as good as — or better than — all those white lawyers he believed looked down on him, Howe took on more clients than he probably should have. And he wasn’t particular about the reality some of those clients already had — whether they’d personally chosen them or not — other lawyers assigned to their cases, or were, in some cases, connected to other clients he was already representing in ways the society considered a conflict of interest.

To complicate matters, Howe could be sloppy. He didn’t keep records of the sort other lawyers — practice reviewers, for example — could glance at and know instantly all his i’s had been dotted and t’s crossed. Partly as a result, Howe would often find himself doubled-booked, even triple-booked in court rooms across town, even in different parts of the province. That understandably miffed other lawyers, Crowns and judges who were inconvenienced by his behaviour.

Howe explained, apologized for misunderstandings, promised to do better in the future.

Not everyone bought his explanations, or accepted his apologies. Especially after the second or third occurrence.

They complained to the bar society.

The bar society was not unaware Lyle Howe was one of the province’s too few African Nova Scotian lawyers. Nor were they unmindful of the long and sorry history of systemic racism in Nova Scotia’s justice system. But bar society officials couldn’t ever quite connect the dots between that history and the reality that  “a lawyer of Mr. Howe’s obvious intellect, education and observed brilliance as a litigator [could] amass such a record of formal and informal complaints of such a troubling nature in such a short time,” as Robert Wright put it. While the society claimed to be eager to help him, its help didn’t actually help him. And that only added to the disconnect between Howe and the society.

“Those in the legal community who believe they have been strong allies and advocates of Mr. Howe,” wrote Wright, “should not take his lack of trust as a personal affront. One does not simply dispense with 400 years of race memory.”

The society’s desire to help Howe become a better —“whiter”? — lawyer may explain why they appointed a more experienced white lawyer to review his practice. Whatever their intentions, it was the beginning of what Howe himself would describe as “hyper-vigilance,” an intense focus on everything he said and did that almost inevitably led to additional complaints against him. The fact he was a black criminal defence lawyer in a criminal justice system where most of the black faces belonged to defendants only exacerbated the fact his every mis-step became more glaringly obvious than if he’d been white like almost everyone else on his side of the legal bar.

It’s also impossible to completely disentangle the bar society’s charges of professional misconduct and incompetence from the criminal charges against Howe.

The first allegations against Howe emerged during a period when Howe was already known within the legal community to be under criminal investigation. Once he was charged, the society — by its own admission — shone an even brighter light on Howe and his situation. So did others. After he’d been charged, the prosecutor’s office where Michelle James worked, for example, made it a policy not to allow Howe to enter their offices without an escort. Was this increase in allegations in the lead-up to his trial a result of that hyper-vigilance? Or were the increasing social and financial pressures on a young lawyer who felt himself alone and under fire from all quarters simply pushing him to make more mistakes? Or…?

And then too, of course, there were the criminal charges themselves. Being charged with a serious criminal offence — not just once but twice within weeks of each other — inevitably damaged Howe’s personal and professional reputation. The fact one of those charges concerned an alleged sexual assault by a black man on a white woman not only played into racial stereotypes but it also undermined whatever public support he might otherwise have received from fellow lawyers or social advocacy groups.

And speaking of charges, we still don’t know why the police charged Howe with uttering threats — gilding the approbation lily — without a more thorough investigation? Racism? Sloppiness? Personal animus? Would the police have laid those charges if Howe had been a white lawyer?

We don’t know for sure, just as we can’t know how each of the pieces of the puzzle that is the Howe case — the investigations, the practice reviews, the criminal charges, the bar society panel hearings — affected each of the other elements and created… whatever it is that was created.

What we do know is that no matter the outcome of the bar society hearings, we all have lost. If Lyle Howe is found guilty, of course, he could be disbarred. Even if he’s found not guilty, there’s still the matter of those other charges — the ones that led to his suspension but haven’t yet been formally filed — waiting in the wings. And even if those charges, which are similar to the ones he’s currently facing, are ultimately dropped too, Howe will still be smacking up against huge legal bills as well as the chancy prospect of rebuilding a tattered reputation.

“I don’t want to stay here,” Howe says flatly. “I don’t want to be here anymore.”

He mentions his 18-year-old half-sister, Jayde. She’s told Howe and his mother she’s thinking of becoming a lawyer. “We told her, ‘Don’t. But if you do decide to become a lawyer, get as far away from here as you can, and don’t come back.”

In a province with a long sad history of racism, there is no good outcome here.

Part I: The Making of Lyle Howe

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