Nova Scotia Legal Profession Offences

Offences

Failure to discharge obligations to clients, counsel or courts (see 2.1-1)

2.1-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

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conduct unbecoming of a member (Rule 2.1-2)

2.1-2 A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions

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Dishonest or disrespectful conduct towards a tribunal (see 5.1-1)

"5.1-1 When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect."

Failure to be courteous and civil to parties (see 5.1-5)

"5.1-5 A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings."

Engaged in gender-based harassment (Rule 6.3-4)

6.3-4 A lawyer must not engage or participate in reprisals against a colleague, employee, client or any other person because that person has:

(a) inquired about their rights or the rights of others;

(b) made or contemplated making a complaint of discrimination, harassment or sexual harassment;

(c) witnessed discrimination, harassment or sexual harassment; or

(d) assisted or contemplated assisting in any investigation or proceeding related to a complaint of discrimination, harassment or sexual harassment.

6.3-5 A lawyer must not discriminate against any person.

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Engage in incivility with anyone (Rule 7.2-1)

7.2-1 A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.

7.2-2 A lawyer must avoid sharp practice and must not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of a client’s rights.

7.2-3 A lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.

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Conducting a Determination on charges

Conduct Unbecoming, Professional Incompetence and Professional Misconduct

9.1.3 When considering complaints or charges, the Complaints Investigation Committee and a hearing panel may determine that conduct constitutes:

(a) conduct unbecoming, if it involves conduct in a member’s personal or private capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following:

(i) committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or competence as a member of the Society,

(ii) taking improper advantage of the youth, inexperience, lack of education, lack of sophistication, or ill health of any person,

(iii) engaging in conduct involving dishonesty;

(b) professional incompetence, if the lawyer fails to apply relevant knowledge, skills and attributes in a manner appropriate to matters undertaken on behalf of a client, and within the reasonable parameters of the lawyer’s experience and the nature and terms of the lawyer’s engagement;

(c) professional misconduct if it involves conduct in a lawyer’s professional capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following:

(i) violating or attempting to violate one (1) of the provisions in the Code of Professional Conduct or a requirement of the Act or these Regulations,

(ii) knowingly assisting or inducing another lawyer to violate or attempt to violate the provisions in the Code of Professional Conduct or a requirement of the Act or these Regulations,

(iii) misappropriating or otherwise dealing dishonestly with a client’s or a third party’s money or property,

(iv) knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law,

(v) demonstrating a pattern of failing to abide by advice, counsels or cautions provided by the Society or Complaints Investigation Committee,

(vi) demonstrating ungovernability.

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Powers of Panel

The hearing panel has powers under s. 42 of the LPA and s. 5 of the Public Inquiries Act, RSNS 1989, c 372.

Determining Procedure

Each panel may determine its own procedure: 42(2). This will include procedure of pre-hearings (42(2)(b)), the mode that hearings are held (42(2)(c)), the administration of oaths (42(2)(d)), acceptance of evidence (42(2)(e)), order disclosure (42(2)(f)), produce documents (42(2)(g)), adjournments (42(2)(h)), amend any filed documents (42(2)(i)), modify any orders (42(2)(j)), and accept or reject settlement agreements (42(2)(k)).

Powers of Hearing Committee

42 (1) The Hearing Committee, and any hearing panel thereof, has all the powers conferred by this Act and the regulations in the discharge of its functions as well as the powers, privileges and immunities of a commissioner under the Public Inquiries Act. (2) A hearing panel may determine its own procedure and may

(a) issue subpoenas and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the hearing panel considers necessary for the full consideration of a charge;

(b) order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the times, dates and places of the hearing for those procedures;

(c) order that a hearing, parts of a hearing or pre-hearing conference be conducted using a means of telecommunication that permits the parties and the panel to communicate simultaneously;

(d) administer oaths and solemn affirmations;

(e) receive and accept such evidence and information on oath, affidavit or otherwise as the hearing panel in its discretion sees fit, whether admissible in a court of law or not;

(f) prescribe the disclosure obligations of the parties prior to a hearing;

(g) compel, at any stage of a proceeding, any person to provide information or to produce documents or things that may be relevant to a matter before it;

(h) adjourn or postpone a proceeding from time to time;

(i) amend or permit the amendment of any document filed in connection with the proceeding, including a notice of hearing and a charge contained therein;

(j) make interim orders to affirm, amend or rescind any outstanding order of the Complaints Investigation Committee;

(k) reject or by order approve a settlement agreement.

2004, c. 28, s. 42; 2010, c. 56, s. 15.

– LPA

Compelling Attendance

The powers to compel attendance of persons including witnesses are found in s. 42(2)(a) LSA and 5 of PIA.

42...
(2) A hearing panel may determine its own procedure and may

(a) issue subpoenas and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the hearing panel considers necessary for the full consideration of a charge;

...

– LPA

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Powers, privileges, immunities

5 The commissioner or commissioners shall have the same power to enforce the attendance of persons as witnesses and to compel them to give evidence and produce documents and things as is vested in the Supreme Court or a judge thereof in civil cases, and the same privileges and immunities as a judge of the Supreme Court.

R.S., c. 372, s. 5.

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Failure of Member to Attend

If a member fails to attend a hearing, the Panel may either adjourn the hearing or proceed without the members attendance: see Reg. 9.13.4.

Failure to Appear

9.13.4 If a member fails to appear at a hearing or for the resumption of an adjourned hearing after notice thereof, the hearing panel may proceed with the hearing in the member’s absence.

– Regs

Under Ontario rules, the parties must be given reasonable notice of the proceedings. The notice should include:

1. reference to the statutory authority under which the hearing will be held,
2. a statement of the time, place and purpose of the hearing, and
3. a statement that if the party does not attend at the hearing, the tribunal may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding.

Conducting Hearings

The procedure of the hearing is governed by the LSA and regulations:

Conduct of hearings

43 ...
(2) A hearing held by a hearing panel shall be conducted in accordance with this Act and the regulations. ...

– LPA

Designated Parties to a Hearing

Under 43(1), the parties to a hearing are the law society and the member subject to the charge.

Conduct of hearings

43 (1) In a hearing before a hearing panel, the parties to the hearing are the Society and the member of the Society who is the subject of the charge. ...

– LPA

Rights of Parties

The statutory rights of parties consist of right to counsel, present evidence, cross-examine witnesses, make submissions, receive disclosure, and written reasons for a decision within a reasonable time.

Conduct of hearings

43 ...
(3) In a proceeding before a hearing panel, the parties have the right to

(a) representation by legal counsel;

(b) the opportunity to present evidence and make submissions, including the right to cross-examine witnesses;

(c) disclosure of relevant information and documents as prescribed in the regulations; and

(d) receipt of written reasons for a decision within a reasonable time as prescribed by regulation.

(4) In a hearing before a hearing panel, a member of the Society who is the subject of a charge is a compellable witness. 2004, c. 28, s. 43.

– LPA

Adjournments

9.13.5 The hearing panel may from time to time adjourn a hearing and give notice thereof to the member.

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Amend Charges

Amendment of Charge

9.13.6 The hearing panel may, at any time before or during a hearing, amend or alter any charge either to: correct an alleged defect in substance or form; or to make the charge conform to the evidence where there appears to be a variance between the evidence and the charge, or where the evidence discloses professional misconduct or conduct unbecoming, professional incompetence or incapacity that is not alleged in the charge.

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Misc Orders

Under s. 45 of the LSA, the Panel can make orders such as an audit (45(1)(a)), practice review (45(1)(b)), competency assessment or examination (45(1)(c)), medical assessment (45(1)(d) and (e)), order relating to trusts under s. 50 (45(1)(f)).

Actions by panel during and after hearing

45 (1) At any time during a hearing, or where a hearing panel finds a member of the Society, other than a law firm, guilty of professional misconduct, professional incompetence or conduct unbecoming a lawyer or articled clerk or makes a finding of incapacity, it may, before making an order pursuant to subsection (4) and upon application by a party, do one or more of the following:

(a) order an audit of the member's practice to be carried out by such person or persons as directed by the hearing panel;

(b) order the member to submit to a review of the practice of the member by a qualified person or persons designated by the hearing panel, and to provide a copy of the review to the hearing panel;

(c) order the member to submit to an assessment or examination to determine whether the member is professionally competent to practise law, and to provide the assessment or the report of the examination to the hearing panel;

(d) order a member to submit to a medical assessment to determine whether the member has the capacity to practise law, and to provide any medical assessment report to the hearing panel;

(e) receive any reports from the medical assessments;

(f) resolve to bring an application pursuant to Section 50.

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(3) The costs of complying with an order made pursuant to subsection (1) shall be initially borne by the Society and may be awarded as costs against a member of the Society pursuant to subsection (4). ...

– LPA

Failure to Comply with an Order

45 ...
(2) Where a member of the Society fails to comply with any order of a hearing panel made pursuant to subsection (1), the hearing panel may order that the member be suspended until the member complies. ...

– LPA

Evidence

Rule 9.13 concerns a panel's acceptance of evidence.

Witness

9.13.1 A witness appearing before a hearing panel may raise procedural issues, affecting his or her testimony, either through his or her counsel or through counsel for one of the parties.

Disclosure

9.13.2 The following evidence is not admissible at a hearing unless the opposing party has been given, at least 10 days before the hearing or such earlier time as determined by the hearing panel at the pre-hearing conference: in the case of written or documentary evidence, an opportunity to examine the evidence; in the case of evidence of an expert, a copy of the expert’s written report or if there is no written report, a written summary of the evidence; or in the case of evidence of a witness, the identity of the witness.

Power to Allow Evidence

9.13.3 Despite subregulation 9.13.2, a hearing panel may, in its discretion, allow the introduction of evidence that would otherwise be inadmissible, or exclude evidence that would otherwise be admissible, and may make such directions that it considers necessary to ensure that a party is not prejudiced.

[omitted 9.13.4 and 9.13.5 and 9.13.6]

– Regs

It has been suggested that it is a potential error of law for an administrative tribunal to refuse to admit evidence for the sole reason that it is hearsay. The fact that it was hearsay should generally go to weight.

Finding of Hearing Panel

9.14 Disposition of Charge

9.14.1 Upon completion of a hearing, the hearing panel must dispose of the charge as provided in Sections 45(4) or (5) of the Act.

Suspension for Non-Compliance

9.14.2 If the hearing panel makes an order for payment under Section 45(4)(e), (f) and (h), the member will be suspended for failing to comply with that order unless otherwise ordered by the hearing panel.

Notification of Member

9.14.3 When a member has been suspended under this Regulation, the Executive Director must: notify the member of the suspension and the effective date; and amend the records of the Society to reflect the suspension and the effective date.

Notification of Public Offices

9.14.4 When a practising lawyer has been suspended pursuant to subregulation 9.14.2, the Executive Director must notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the suspension.

Continuing Jurisdiction

9.14.6 Where a hearing panel finds a member of the Society guilty of professional misconduct, professional incompetence or conduct unbecoming, or makes a finding of incapacity, the hearing panel will retain jurisdiction to make any other order or take any other action the hearing panel determines to be appropriate in the circumstances including an order to retain jurisdiction to monitor the enforcement of its order.

9.14.7 Where the term of a member of the hearing panel has expired or the member is otherwise unavailable to exercise the jurisdiction set out in subregulation 9.14.6, the jurisdiction of the remaining member of the hearing panel will not be affected provided the hearing panel has quorum.

9.14.8 If the hearing panel no longer has quorum as a result of a member’s unavailability to continue to serve, the Chair of the Hearing Committee may appoint a successor member to monitor enforcement of the hearing panel’s order or to consider a request to rescind or vary an order made by the hearing panel.

Decision on Charge

9.14.9 Within 60 days of completion of the hearing of the evidence and receipt of submissions on the charge, the Chair of the hearing panel must provide to the parties and the Executive Director the panel’s written decision and its reasons for that decision.

Decision is Public

9.14.10 Upon receipt of the written decision, unless the hearing panel otherwise orders, the Executive Director must: release the decision to the public; and file a copy of the decision with the Prothonotary.

Hearing on Sanction

9.14.11 If the member is found guilty, within 60 days of release of its decision pursuant to subregulation 9.14.9, the hearing panel must resume the hearing in order to determine the appropriate sanction.

Decision on Sanction

9.14.12 Within 30 days of completion of the hearing pursuant to subregulations 9.14.11 or 9.15.3, the Chair of the hearing panel must provide to the parties and the Executive Director: a written decision on the sanction; the reasons for that decision; and a resolution incorporating the sanction signed by the Chair on behalf of the hearing panel.

Exhibits

9.14.13 As soon as practicable after providing its final decision to the Executive Director, the Chair of the hearing panel must deliver to the Executive Director all the exhibits tendered at the hearing together with any other material that would constitute the record of the hearing.

Filing of Decision

9.14.14 Following receipt of the material prescribed by subregulation 9.14.12, the Executive Director must: file the material with the Prothonotary; and release the decision to the public.

– Regs

Findings of Guilt

Guilt of Member

45...
(4) Where a hearing panel finds a member of the Society, other than a law firm, guilty of professional misconduct, professional incompetence or conduct unbecoming a lawyer or articled clerk or makes a finding of incapacity, it shall, following an opportunity for the parties to present evidence and submissions respecting the proposed disposition by the hearing panel, do one or more of the following:

(a) where the member is a lawyer, disbar the member;

(b) where the member is an articled clerk,

(i) expel the articled clerk and order the articled clerk's name to be struck off the Register of Articled Clerks,

(ii) defer the articled clerk's call to the Bar, or

(iii) impose conditions on the articled clerk's call to the Bar;

(c) permit the member to resign his or her membership;

(d) for any period the hearing panel considers appropriate,

(i) suspend the member from practising law,

(ii) confirm, vary or impose restrictions on the member's practice;

(e) order the member to pay an amount not to exceed twenty thousand dollars to be paid into the Fund;

(f) order that restitution be made to any person;

(g) reprimand the member;

(h) order the member to pay all or any part of the costs incurred by the Society in connection with any investigation or proceedings relating to the matter in respect of which the member was found guilty and, in particular, to pay the costs of the proceedings authorized by Sections 36 to 38;

(i) order the member to submit to an assessment or examination, or both, as the hearing panel considers appropriate;

(ia) order the member to submit to a medical assessment;

(j) where the member is a director, officer or shareholder of a law corporation, revoke or suspend the corporation's permit, or impose conditions on the permit;

(k) apply for a variation of any custodial order;

(1) resolve to bring an application pursuant to Section 50;

(m) rescind or vary any order made or action taken under this subsection;

(n) make any other order or take any other action the hearing panel determines to be appropriate in the circumstances including an order to retain jurisdiction to monitor the enforcement of its order.

...

– LPA

Guilt of Firm

45...
(5) Where a hearing panel finds a law firm guilty of professional misconduct, it may, following the opportunity for the parties to present evidence or submissions respecting the potential disposition, do one or more of the following:

(a) order the law firm to pay an amount not to exceed fifty thousand dollars into the Fund; or

(b) make any other order or take any other action the panel thinks is appropriate in the circumstances including an order to retain jurisdiction to monitor the enforcement of its order. 2004, c. 28, s. 45; 2010, c. 56, s. 17.

– LPA