The Law Society of Manitoba has been ordered to investigate a professional misconduct complaint against Winnipeg lawyer Jay Prober for comments he made about women who allege they were sexually assaulted by Peter Nygard.
The law society initially dismissed the complaint because the complainant, Ottawa human rights lawyer Richard Warman, had no connection to the case.
Warman filed a complaint in June after reading a CBC News article which quoted Prober as saying a woman who accused his client, Peter Nygard, of rape was “a purported actress who is now playing another role” and had “jumped on the perceived money train.”
Prober called another alleged sex assault victim “probably another complainant who has been paid for false evidence.”
Warman appealed the decision to dismiss his complaint, and the Manitoba law society’s complaints review commissioner ordered the investigation.
“They had not bothered to conduct even the least investigation into it,” Warman said in a phone interview with CBC News.
Fifty-seven women have filed a civil class-action lawsuit in New York against Nygard, claiming they were raped or sexually assaulted. Some of them allege they were assaulted when they were just 14 or 15 years old.
On Feb. 25, 2020, the FBI raided Nygard company offices in New York as part of a criminal investigation. (Earl Wilson/The New York Times)
The lawsuit was put on hold in August after the U.S. government requested a stay of proceedings.
Nygard denies all allegations against him and claims his former neighbour in the Bahamas — billionaire Louis Bacon, who Nygard has been feuding with for years — is paying the women to make up allegations as part of a conspiracy to destroy his reputation and business.
In a Sept. 8 letter to Warman, Manitoba law society complaints review commissioner Drew Perry said, “while a lawyer is permitted to make the same type statements in public as he/she would make in court, I agree that the statements attributed to Mr. Prober are concerning, especially in the MeToo era of shifting expectations.”
He added that “The only way that I have to take the matter further, and in the process obtain his explanation for his alleged comments, is to order an investigation. I am now doing that.”
One of the women in the class-action lawsuit told CBC News she came forward in part because of Prober’s comments in the media about the other alleged victims.
Warman says that alone should have been reason enough for the law society to investigate his complaint.
The society, Warman says, is in the “unique position to say to a member of the profession that engaging in that kind of conduct is not only subject to investigation by us as the law society, but it’s also questionable because it raises the issue of whether those kinds of comments in and of themselves are spawning further litigation.”
Richard Warman says he’s concerned the only public acknowledgement of the law society’s investigation will come if it proceeds to a hearing before a tribunal. (Submitted by Richard Warman)
Prober did not respond to requests for comment, but previously told CBC News that Warman’s allegations of professional misconduct were unfounded.
In June, Prober said Warman’s complaint may have been made “in order to impede the vigorous defence of my client.”
“At best he’s simply seeking attention and publicity and, at worst, he’s involved with CBC in attacking me,” Prober said in June.
Prober is acting for Nygard and a church in two lawsuits against CBC and its journalists.
Law societies need to do more: lawyer
“There’s no reason to smear the reputations of complainants … in a public forum,” said Toronto lawyer Gillian Hnatiw, who has represented survivors of sexual violence.
Hnatiw says for the most part, the majority of the criminal bar has tried to be increasingly careful about the way they talk about sexual assault allegations, but “there are still some dinosaurs in our midst.”
“I think it amplifies what is one of the oldest rape myths in the book — that women make false allegations for fame and/or money, and it’s a reflexive disbelief and discrediting of the woman.”
Toronto lawyer Gillian Hnatiw says law societies need to better address lawyer conduct because it can have a chilling effect on victims of sexual violence. (Submitted by Gillian Hnatiw)
She says this case raises interesting questions about how the legal profession should police the behaviour of its members, to avoid perpetuating stereotypical thinking or rape myths.
Hnatiw says up until now, law societies have been reluctant to weigh in on lawyer conduct issues, unless they involve things like fraud.
“I think that law societies across the country do need to evolve their thinking about what it means to protect the public, and how lawyers speaking out in this way has chilling and deterrent effect on victims of sexual violence,” she said.
She’s concerned it “further deters them from coming forward, if they see that lawyers can essentially publicly defame their reputations.”
Warman says while the law society will investigate his complaint, they are conducting it as an internal investigation. That means he won’t be privy to any of the findings, because he has no personal connection to the case.
“I’ll never know whether they conducted a fair and independent investigation or … whether they conducted the investigation at all,” said Warman.
There will only be public acknowledgement of the investigation if it proceeds to a hearing before the law society tribunal, he said.
“You have an organization that is only conducting that investigation because they’ve been ordered to, and that’s not transparent. That’s not fair,” he said.
“That’s not accountable, for them to then say, ‘thanks … we’ll take it from here, and … in fact, you probably will not ever find out anything about what we’ve done,'” said Warman.