Practicing family law is difficult enough without having to be wary of opposing counsel’s wily tactics. One of the cardinal rules of litigation is to provide notice to opposing counsel (or to an unrepresented litigant) of any steps you intend to take in court to pursue your client’s claims. To proceed without notice, also called “ex parte”, ought to be a rarity, particularly in the emotionally charged dynamics of a family law proceeding.
Recently Toronto lawyer and former 2010 mayoralty candidate, Rocco Achampong, was handling a high-conflict custody matter that resulted in a judge ordering him to pay costs of $1200.00 to his client’s husband for “sharp practice”. Such an order is extremely rare and only made when a lawyer’s conduct has been seriously egregious.
The case started with Mr. Achampong’s client, who was living in the family home, obtaining an ex parte order for custody of her two-year-old daughter from the Ontario Court of Justice. That action resulted in her husband bringing a cross-motion for the same order, however, the parties talked through matters and decided to reconcile. All court action was terminated and the temporary custody order in favour of the mother was vacated.
Their reconciliation, however, was brief and ended after police were called to the home for an alleged incident of domestic violence. Promptly thereafter, the father brought another application to court seeking custody of his child and alleged that he and his wife had previously agreed they would share custody, but she had reneged on their oral agreement. After filing the application but before he obtained a fresh court order, he went to the child’s daycare and brought the child to his home.
This triggered a landslide of emails, letters and telephone correspondence between the parent’s respective lawyers, all of which adopted a conciliatory tone as the lawyers made efforts to resolve their clients’ problems without further court action. Different resolution options were canvassed including a 4-way meeting with clients and counsel, a mediation session, or an expedited return to court to have a judge assist.
However, while father and his counsel, Mr. Schuman believed their negotiations were bearing fruit, Mr. Achampong was hurriedly preparing court documents, while lulling opposing counsel into believing that the only issue between them was the selection of a mediator.
In the meantime, father’s counsel had obtained an expedited hearing date as well, as a back up, and delivered his application documents to Mr. Achampong.
Despite this, Mr. Achampong obtained a custody order from the Ontario Superior Court of Justice, a higher court in Ontario with the same jurisdiction as the Ontario Court of Justice to make child custody orders.
He did all of this without notice to opposing counsel, and without advising the judge that a new hearing date had already been secured in the lower court. Neither did he tell the Court that as recently as that morning, he had been involved in ongoing settlement discussions with father’s counsel.
Mr. Schuman was furious with the betrayal and reported Mr. Achampong to the Law Society. His client then brought an application for costs against Mr. Achampong personally. The Court made the following observations:
“Mr. Achampong never advised Mr. Schuman that he was wasting his time in the Ontario Court of Justice since his intention was to have the case heard instead in the Superior Court of Justice. He had an obligation to do so. Even if his client instructed him to proceed in the Superior Court of Justice (likely the case) and not to immediately advise Mr. Schuman (this is unknown), he cannot hide behind the excuse of client instructions. It was his obligation to let Mr. Schuman know that he would be proceeding in a different court, so that Mr. Schuman did not prepare needlessly for a case that would be stayed.
Mr. Achampong demonstrated poor judgment in exercising his professional obligations to Mr. Schuman on October 12, 2012. It is apparent from a review of the correspondence of counsel on that day that they were discussing urgent mediation to try and resolve the temporary issues. Mr. Schuman was taking steps to expedite this process. While Mr. Achampong asked for his client to be able to speak and see the child, there was no indication that he would be immediately going to court to obtain relief. It was certainly reasonable for Mr. Schuman to believe from the correspondence that the process would be mediation first, and if the case was not adjourned, that the temporary motions about parenting arrangements would be argued on Tuesday, October 16, 2012, in the Ontario Court of Justice.”
Mr. Achampong compounded his ethical breach by arguing before the Court that he had done nothing wrong. Another lesson learned. Best to fall on one’s sword than to justify improper behavior. The costs order is miniscule compared to the embarrassment of the national publication of his breach of professional ethics.
My guess is that in his zeal to have his client’s child returned, he forgot about his professional obligations as an officer of the court. In my view, no client’s case is worth a breach of ethical standards.
Lawdiva aka Georgialee Lang