A4

Rob Linke
Telegraph-Journal

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A Maliseet lawyer who appeared before the Supreme Court of Canada on the most important native rights case of the last decade is now fighting his suspension by the provincial law society.

Henry J. (Hank) Bear of the Tobique First Nation represented the Union of New Brunswick Indians as an intervener in the historic 1999 Donald Marshall Jr. eel fishing decision.

Bear is now working as a paralegal at a law office in Houlton, Maine, while his wife attends college there.

Bear has filed an appeal in the New Brunswick Court of Appeal of a March 20 decision by the disciplinary committee of the Law Society of New Brunswick.

The decision ruled on a complaint that had been filed by Hugh Akagi on behalf of the Passamaquoddy St. Croix/Schoodic Band.

The complaint alleged that while serving as the band's lawyer, Bear accepted retainer fees of $38,500 but failed to provide the services outlined in their agreement.

The complaint also alleged Bear had failed to keep his client informed.

The disciplinary committee found him guilty.

The law society's lawyer argued Bear should be disbarred and asked that Bear be ordered to reimburse the law society's compensation fund for the $38,500 it had paid out.

But the committee ruled a suspension was appropriate.

It ordered Bear to pay the society $29,538.59 within one year for the cost of its inquiry and all investigations.

It also ordered him to reimburse the law society $30,000, a portion of the $38,500 paid to Akagi, within two years.

It also suspended Bear from practising law in New Brunswick until the sum owing is paid in full, and for one year thereafter.

Bear's filed his appeal of that decision in late April, arguing he did not receive a fair hearing.

Among other things, Bear argues the disciplinary committee did not give any weight to a letter that "exonerates" him.

The letter is from the former chief of the Maine Passamaquoddy and says that U.S. band was Bear's real client under a 1996 retainer agreement and that they were completely satisfied with his work.

He also said the limitation period for making a complaint had expired under the rules of the law society.

Bear said the Maine band was the real client and that Akagi's band, which was vying for legal recognition, was a "Trojan horse" of the Maine band in a bid to make a land claim in the St. Croix region of southwestern New Brunswick.

"This whole thing was confusing for the law society's complaints committee and discipline committee," said Bear. "I'm pointing out Mr. Akagi was not my client. My clients were happy with me.

"I'm sure I'm going to be successful in establishing my position" before the Court of Appeal.

The law society's executive director, Marc L. Richard, said the disciplinary process can withstand scrutiny.

"There's no doubt in my mind Mr. Bear's been given a fair process and even considerable latitude in terms of the admission of evidence," he said.

"I can't comment on what the Court of Appeal is going to say, but there was nothing personal in this - we simply did our work."

He said the law society asked for Bear to be disbarred for the same reason it paid Akagi out of the compensation fund: They felt he had taken a client's money without providing services in return.

Akagi's office said he was not available for comment Wednesday.

Bear graduated from the University of New Brunswick law school in 1994.

He is a former band councillor at Tobique.

Bear also appeared before the Supreme Court of Canada as an intervener in the 2001 Mitchell case, which addressed the issue of whether Mohawk Canadians of Akwesasne have the right to bring goods into Canada from the United States for collective use and trade with other First Nations without paying customs duties.

Bear had already been under an administrative suspension because he had not paid his insurance dues to the law society.

Typically, just one or two of the province's 1,500 lawyers is suspended for professional misconduct in a given year, said Richard.