Alberta law society rejects disciplinary hearing for lawyer who had sex with his client
‘I think they are a backwards thinking organization,’ complainant says
The Law Society of Alberta has dismissed a complaint of sexual misconduct made by a client against an Edmonton civil lawyer.
The complainant that CBC is identifying as TD said the decision made her feel like a victim all over again.
"I felt hopeless. I felt devalued," TD said. "I felt like I wasn't heard and I felt frustrated and upset. But I wasn't surprised."
The night in December 2009 that her lawyer kissed her, TD said she felt sick.
She admitted she and Allan Botan undressed and engaged in oral sex.
She claimed Botan continued to pursue her romantically, but in an affidavit, Botan denied that suggestion, though he admitted having sexual contact with his client.
TD filed a formal complaint about Botan's conduct with the law society. She was interviewed twice by their male investigators.
"They dealt with me as if I was the wrongdoer, the guilty party," she said. "They dealt with me in a very hostile manner. They wanted to know things about my past that had no relationship to the case I was bringing to them to investigate."
'Things need to change'
In December 2017, Christine Blair, conduct counsel for the law society, advised TD by email that she had completed her review of the complaint and had referred the case to a conduct committee panel, typically made up of three lawyers.
Six months later, Blair notified TD the panel "directed that this matter be dismissed."
The panel said: "Mr. Botan has demonstrated an understanding that he must conduct himself in a conscientious and cautious manner while representing his clients and that he must at all times maintain a professional solicitor-client relationship that does not bring the reputation of the legal profession into disrepute."
While TD has the right to appeal the decision, she said she's lost faith in the law society.
"I don't trust the Law Society of Alberta," she said. "I think they are a backwards-thinking organization."
A law society spokesperson would not comment on the specifics of the Botan case.
"Complaints are private and confidential under the Legal Profession Act," Colleen Brown wrote in an email to CBC. "When a complaint is dismissed, it is not part of the public record."
No specific ban on sex with clients
There is no reference in the law society's code of conduct to lawyers having sex with clients, so even though Botan admitted he had sexual contact with TD, he did not violate the code.
"That doesn't make any sense to me," TD said. "It's backwards. It's just very old way of thinking. I just thought we were more advanced, that we would have these policies and protections in place.
"Things need to change as soon as possible."
The president of the Canadian Association for Legal Ethics agrees.
"It's ridiculous. And it's not just in Alberta," said Alice Woolley. "The regulation of lawyer-client sex in Canada is deficient. We should have rules that prohibit lawyers from commencing sexual relationships with their clients."
In the U.S., the American Bar Association code of conduct states: "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."
Woolley thinks Canadian law societies should adopt the same rule.
"This is a case where I think the law societies just need to catch up with where we're at today on these issues and what we understand about the possibilities of sexual exploitation," Woolley said. "Our rules are archaic and we need to get them up to date. And promptly."
Woolley, who teaches legal ethics at the University of Calgary, said she always begins her course with the same message for students.
"Number one, don't have sex with your client. That's pretty much always been my first rule. Don't have sex with your client. Don't go into business with your client. Those are basic kinds of things to avoid getting into ethical trouble."
Lawyer on suspension
Allan Botan did not respond to a CBC request for comment.
The Law Society of Alberta website shows Botan is currently on administrative suspension.
The society spokesperson would not say why Botan is suspended, but indicated it could relate to something as simple as non-payment of annual professional fees.
The website also revealed Botan has faced two previous law society disciplinary hearings.
In 2016 he was suspended one day for making misrepresentations in court. In 2013, a disciplinary hearing was held when a client complained about a trust account. Botan was not sanctioned.