An email to opposing counsel remains a professional communication when no judge is copied.
In Law Society of Alberta v Smith, 2026 ABCA 308, the Alberta Court of Appeal confirmed disciplinary decisions concerning uncivil emails and inadequate responses to a Law Society investigation. Its September 29 judgment rejected the argument that the duty of civility did not apply to private written exchanges between lawyers.
For litigators, the decision raises a familiar question: how do you challenge another lawyer’s position forcefully without turning the exchange into a personal confrontation?
What happened in Law Society of Alberta v Smith?
C. Michael Smith represented his daughter and her partner in a landlord dispute. His communications with opposing counsel became part of disciplinary proceedings.
The Court of Appeal upheld findings that the emails were bullying and intimidating. It also confirmed the finding concerning his responses to the regulator. The disciplinary outcome included a reprimand, a $5,000 fine and costs.
The court explained that civility extends to non-public professional communications. A smaller audience can affect the contextual assessment, but it does not remove the obligation.
This was a professional-conduct decision. It should not be described as a ruling that counsel’s emails are automatically public or lose confidentiality.
How the decision fits with Groia
The Supreme Court of Canada’s decision in Groia v. Law Society of Upper Canada, 2018 SCC 27, remains essential context.
In Groia, the majority overturned a misconduct finding and emphasized the importance of assessing the full situation. Strong advocacy, good faith and a reasonable basis for allegations matter. A mistaken legal position does not automatically establish professional misconduct.
The Alberta court applied a contextual approach and found no reviewable error in the assessment of Smith’s conduct. It did not accept that his communications rested on good faith and a reasonable basis.
What litigators can take from the ruling
Analysis: An effective challenge gives the recipient something specific to answer: a document, an inconsistency, a procedural obligation or a requested correction.
A personal accusation can obscure that issue. It encourages a dispute about the lawyer’s character instead of a response to the evidence.
Consider this illustrative wording:
“Your affidavit states that access was refused on June 12. The attached correspondence appears inconsistent with that account. Please confirm whether your client will correct the statement.”
That message identifies the problem and asks for action. It also leaves room for an explanation before reaching a conclusion about intent.
This example is a drafting suggestion, not a passage from the judgment or a guarantee that particular wording satisfies professional obligations.
Before sending a difficult email
Analysis: A short review can help preserve the strength of a message:
- Identify the disputed fact. What exactly needs to be addressed?
- Separate evidence from inference. Does the record establish an error, or also support an allegation of dishonesty?
- Specify the next step. Ask for clarification, correction or a procedural response.
- Remove unnecessary personal commentary. Keep sentences that advance the client’s position.
- Review repeated exchanges together. A chain of messages can communicate something different from one email read alone.
The objective is precision. A lawyer can insist on an answer, reject an unsupported position and reserve the right to seek relief without filling the correspondence with judgments about the recipient.
A regulatory inquiry requires its own attention
Analysis: When correspondence becomes the subject of a complaint, the response to the regulator deserves a separate, deliberate review. Organizing the questions, answering them directly and explaining any genuine objection can help prevent the original dispute from controlling the response.
For firm leaders, the case is also a useful training discussion. Ask lawyers to revise a difficult email while preserving its legal substance. That exercise makes the relationship between advocacy and professional tone concrete.
Primary source: Read Law Society of Alberta v Smith, 2026 ABCA 308
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