Discipline of lawyer who hired paroled killer to help residential school claimants called 'grossly inadequate'
B.C. law society says case shows need for change within legal profession
B.C.'s law society has handed a one-month suspension to a lawyer who hired a paroled murderer to help him with files of residential school survivors who later claimed the freed killer tried to extort their settlement money out of them.
The case is one the society itself grappled with — splitting the three members of the independent panel convened to consider allegations against Vancouver litigator Stephen John Bronstein.
The majority admitted the sanction "would otherwise be unduly lenient" — but felt the difficulty in holding a full hearing meant there might be no punishment at all if they didn't accept a proposal that saw Bronstein admit to four allegations of professional misconduct in exchange for the penalty his counsel suggested.
The dissenting opinion was written by the first Indigenous woman to sit as one of the 25 benchers elected to oversee the conduct of the legal profession in B.C.
Karen Snowshoe said the one-month suspension and $4,000 fine was "grossly inadequate" for behaviour she termed "egregious."
She said the decision "would most likely call into question the public's confidence in [the law society's] regulatory process and its ability to act in the public interest, especially as it pertains to protecting the most vulnerable and marginalized members of society."
'No one's happy with the outcome'
Bronstein did not respond to an email requesting comment. The decision also prevents him from acting as counsel or agent for any Sixties Scoop claimants.
The Law Society of B.C.'s communications director Jason Kuzminski said everyone involved wrestled with the case.
"No one's happy with the outcome," Kuzminski told the CBC.
"It underscores the fact that I think everybody's kind of in agreement that change has to happen and it's one of those cases that exposes the need."
The penalty against Bronstein was announced Thursday — the same day the Tk'emlúps te Secwépemc First Nation revealed the discovery of the remains of 215 children buried at the site of a former residential school near Kamloops, B.C.
The 125-page decision highlights what a judge termed one of the "after-tragedies" of attempts to compensate residential school survivors: legal misconduct resulting in further victimization.
According to the ruling, Bronstein's firm represented 624 residential school survivors between 2009 and 2015.
They received $70 million through an independent assessment process drawn up as part of the Indian Residential Schools Settlement Agreement to resolve specific claims of sexual abuse, serious physical abuse and other wrongful acts.
The federal government paid Bronstein's company $10.5 million, and he also received contingency fees from some of his clients.
Killer accused of 'ripping a lot of people off'
In 2007, Bronstein helped a residential school survivor named Ivon Johnny reach a settlement through an alternative dispute resolution process.
Johnny was sentenced to life for first-degree murder in 1985, but had been released on day parole in 2005.
After Bronstein represented him, Johnny offered to connect the lawyer with other members of the Tsilhqot'in First Nation. Bronstein hired him as a "form filler" to assist claimants with their applications, witness signatures and make contact with clients in the Williams Lake area.
The decision said Bronstein believed "Johnny was a suitable person to provide assistance ... However, [he] took no further steps to confirm his belief in this respect."
Between 2009 and 2012, Bronstein's firm received a number of complaints about Johnny's behaviour.
A court worker claimed he had been demanding money from clients. One woman called to say her brother had paid Johnny $20,000. Another caller — who was not one of Bronstein's clients — claimed Johnny was "evil" and "ripping a lot of people off."
Bronstein spoke to Johnny about the allegations, but Johnny denied taking any money. In 2012, his parole was revoked, apparently because of concerns about his treatment of the residential school claimants.
According to the law society's decision, Bronstein admitted to a lack of due diligence in failing to investigate Johnny's suitability before giving him unsupervised access to clients, and in failing to adequately investigate complaints.
He also admitted to providing inadequate service to some clients by failing, in part, to properly document important communications, to reply to their communications consistently and to advance their claims in a timely manner.
A 'close call'
In 2015, B.C. Supreme Court Justice Brenda Brown found Bronstein failed to meet standards expected of a legal professional.
The judge said there was evidence he "discounted his clients' complaints" because of alcoholism and mental illness.
But Brown refused a request to have Bronstein removed by the monitor appointed to oversee the implementation of the settlement agreement. She ordered him to pay $1.25 million to cover the monitor's court costs.
In deciding to accept Bronstein's proposal for the one-month suspension, the two lawyers who signed the majority decision said it would be difficult to prove the allegations against the lawyer because his former clients have indicated they are not willing to testify at a contested hearing.
"The law society has quite reasonably indicated that it will not force them to do so, given the real concern that testifying in an adversarial setting is likely to bring up traumatic memories and thus victimize them further," the decision said.
Bronstein hasn't had any other professional discipline and he apologized to both his clients and the law society.
On the other hand, the majority said his "professional misconduct was multifaceted, pervasive and impacted many clients."
"Crucially, the victims of [his] misconduct constituted a class of particularly vulnerable clients who had suffered abuse and trauma as children," the majority decision said.
"They deserved professional legal assistance delivered with the utmost sensitivity and care."
The majority decision concluded that it was a "close call" but that the penalty "falls within the range of fair and reasonable outcomes."
'My finding is no'
Snowshoe is a lawyer and mediator whose clients have included the Indian Residential School Adjudication Secretariat.
She was also a senior counsel with the National Inquiry into Missing and Murdered Indigenous Women and Girls.
Her dissent points out that the investigation into Bronstein was one of seven launched against legal firms that handled residential school settlement claims.
Two of those cases resulted in resignation and one in disbarment.
Snowshoe quotes from a judge who heard one of the other cases: "It is an appalling truth, but some lawyers hired to assist the survivors of the Indian Residential Schools disgraced themselves and the legal profession by further victimizing their Aboriginal clients in a variety of ways."
She said it wasn't surprising Bronstein's former clients didn't want to testify because the law society's adversarial process creates barriers for vulnerable and marginalized people.
She noted that until recently visitors to the society's offices were greeted by a statue of former B.C. Supreme Court Justice Matthew Begbie, who was responsible for the hanging of six Tsilhquot'in Chiefs in 1864.
"As of this day, the Begbie statue sits in the law society basement and remains a source of contention between Indigenous and non-Indigenous members of the profession and the public," Snowshoe wrote.
Snowshoe concluded by asking whether a fair-minded person would "find the proposed disciplinary actions fair and reasonable?"
"My finding is no," she wrote.
'Something we're concerned about'
Kuzminski told the CBC a meeting of the law society's benchers on Friday opened with a moment of silence for the children whose remains were found on the site of the former Kamloops residential school.
He said the society committed itself at the end of 2020 to addressing the kind of concerns Snowshoe raised in her dissent.
"It's been something we're concerned about in the modern era. The need to be responsive to the particular needs of Indigenous people, but also in an era where we have greater representation of diversity across the board," he said.
Snowshoe's dissent includes a number of recommendations to make the society's hearings less traumatic for vulnerable witnesses, including testimony by closed circuit television or behind a screen, the admission of victim impact statements and ending cross-examination that's seen as abusive, inappropriate or repetitive.
Kuzminski said the society's president wants benchers to review the decision before they meet next month in order to come up with a plan to implement the kinds of changes it calls for.
He said that because the decision involving Bronstein was reached by consent, there is no opportunity to review it.