'A poor choice': Alberta lawyer reprimanded for allowing nude photos in custody case

(THE CANADIAN PRESS/Jason Franson)

EDMONTON -

A hearing committee of the Law Society of Alberta says there are reasonable and probable grounds to believe that a lawyer may have committed a criminal offence after “explicit and nude” photos of a woman were included as part of an affidavit in a custody case.

The self-governing body has reprimanded lawyer Karen Herrington of Sherwood Park, Alta., for bringing the administration of justice into disrepute and failing to provide competent legal services. She has been reprimanded and ordered to pay $5,400 in costs.

Herrington was representing the husband in a common-law custody dispute.

The law society says the husband sent an affidavit to Herrington that was aimed at preventing his former partner from leaving the province and included intimate photos of her.

Herrington asked other members of her law firm what she should do, but ultimately decided to include the pictures in the affidavit, the regulator says.

“It was thought by Ms. Herrington that the pictures showed a pattern of behaviour from the wife and that she needed the affidavit for the emergency application the next morning,” Ryan Anderson, writing on behalf of a three-person hearing committee of the law society, says in the ruling.

“She consulted other lawyers in her office for their advice and made this decision to proceed. This does not leave Ms. Herrington blameless, but goes to show this was not a simple situation,” he said.

“Ms. Herrington appears to be a capable lawyer who made a poor choice.”

The opposing lawyer asked that the nude photos of his client be removed. They were blacked out before being filed in court.

Herrington admitted her guilt in that she failed to provide legal services to the standard of a competent lawyer and said it was an error to include the pictures.

The committee's decision says Herrington did not know the nude photos had been added to the affidavit by her client until the afternoon or day before the emergency application, and she could not alter the affidavit because her client had already sworn it.

A lawyer for Herrington noted that she “felt she was stuck in a difficult situation of proceeding with the application and relying on the affidavit or not meeting her client obligations. This was an emergency mobility application that required quick action,” the decision says.

The decision says counsel for the law society noted that Herrington's actions potentially contravened the Criminal Code, which prohibits the publication of an intimate image without consent. They recommended the file be sent to Alberta's solicitor general.

“The committee finds that there are reasonable and probable grounds that Ms. Herrington contravened Section 161.1 of the Criminal Code and as such we are obligated to make a referral to the solicitor general,” the panel says.

“Ms. Herrington may very well have a defence but that is not up to our committee to decide.”

The decision says Herrington's counsel “indicated that there was nothing criminal about the affidavit as it met the test for the public good under the Criminal Code.” The decision notes there is a public good defence under the Criminal Code in the section that deals with the publication of intimate images.

There was no immediate response to a request for comment from the office of Solicitor General Kaycee Madu. Strathcona Law Group, where Herrington works, also had no immediate comment.

This report by The Canadian Press was first published June 15, 2021.