Legal Profession Offences

From Criminal Law Notebook


Offences

See also: Legal Profession Regulation

Allegations can include:

  • professional misconduct[1]
    • failing to act with honesty and integrity
  • Conduct unbecoming[2]
  • incivility
  • professional incompetence;
  • incapacitated.
Onus and Burden of Proof

An allegation of conduct unbecoming must be proven on balance probabilities.[3]

  1. ↑ Batchelor (Re), 2013 LSBC 9 (CanLII), at paras 24 to 30
  2. ↑ ON: LSO v. Zaitzeff, 2021 ONLSTH 108 (CanLII), at para 31 ("Section 33 of the Law Society Act, RSO 1990, c. L.8, provides: “A licensee shall not engage in professional misconduct or conduct unbecoming a licensee.” Pursuant to the definition in Rule 1.1 of the Rules of Professional Conduct (the Rules), “conduct unbecoming” means “conduct, including conduct in a lawyer's personal or private capacity, that tends to bring discredit upon the legal profession including, for example, … committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.”")
  3. ↑ The Nova Scotia Barristers’ Society v. Rhyno, 2019 NSBS 1 (CanLII), at para 24

Professional Misconduct

Professional misconduct requires that the member's "behaviour displays culpability with is grounded in a fundamnetal degree of fault" and whether it displays "gross culpable neglect of his duties as a lawyer."[1]

The test requires that there is a "marked departure" in culpability.[2] It has also been characterized as requiring something "outside the permissible bounds." [3]

Whether something constitutes professional misconduct is determined by the committee as the member are in the "best position" to assess whether the member ahs "crossed the permissible bounds." It should not be "unduly restricted" in its assessment.[4]

The test is strictly objective and should not include any subjective assesmsent.[5]

It is not necessary that the conduct be "disgraceful or dishonourable."[6]

Factors to consider include:[7]

  • gravity of the misconduct;
  • its duration;
  • number of breaches;
  • presence or abscence of mala fides;
  • the harm caused by the conduct

No single factor should be determinative.[8]

The offence cannot be made out merely by error on the part of the lawyer.[9]

Even the use of profane language can constitute professional misconduct.[10]

The breach of a court order, even without a finding of contempt, can be professional misconduct.[11]

Even where the breach was unintentional it will usually be prejudicial to the administration of justice and will bring discredit to the profession.[12]

Burden and standard of proof

The onus is upon the society to prove the conduct constitutes misconduct on a balance of probabilities.[13]

  1. ↑ Martin, Re, 2005 LSBC 16 (CanLII), at para 154
    Sangha (Re), 2020 LSBC 3 (CanLII), at para 65
  2. ↑ Sangha, supra, at para 67
    Martin, supra, at para 171
    Lawyer 12 (Re), 2011 LSBC 35 (CanLII) ("In my view, the pith and substance of these various decisions displays a consistent application of a clear principle. The focus must be on the circumstances of the Respondent’s conduct and whether that conduct falls markedly below the standard expected of its members.")
  3. ↑ Stevens [v. Law Society (Upper Canada), (1979), 1979 CanLII 1749 (ON SC), 55 OR (2d) 405 (Div. Ct.)
  4. ↑ Stevens v. Law Society of Upper Canada (1979), 1979 CanLII 1749 (ON SC), 55 O.R. (2d) 405 (Div. Ct.), Mr. Justice Cory (as he then was) ("What constitutes professional misconduct by a lawyer can and should be determined by the discipline committee. Its function in determining what may in each particular circumstance constitute professional misconduct ought not to be unduly restricted. No one but a fellow member of the profession can be more keenly aware of the problems and frustrations that confront a practitioner. The discipline committee is certainly in the best position to determine when a solicitor’s conduct has crossed the permissible bounds and deteriorated into professional misconduct. Probably no one could approach a complaint against the lawyer with more understanding than a group composed primarily of members of his profession.")
  5. ↑ Sangha, supra, at para 67
    Kim (Re), 2019 LSBC 43 (CanLII), at para 45
  6. ↑ Edwards (Re), 2020 LSBC 21 (CanLII), at para 44
    Martin, supra ("The real question to be determined is essentially whether the Respondent’s behaviour displays culpability which is grounded in a fundamental degree of fault, that is whether it displays gross culpable neglect of his duties as a lawyer.")
  7. ↑ Vlug (Re), 2018 LSBC 26 (CanLII), at para 115
    Sangha, supra, at para 68
    Lyons (Re), 2008 LSBC 9 (CanLII)
  8. ↑ Sangha, supra at para 68
    Boles (Re), 2016 LSBC 48 (CanLII), at para 56
    Harding (Re), 2014 LSBC 52 (CanLII), at para 78
  9. ↑ Boles at para 57
    Lawyer 10 (Re), 2010 LSBC 2 (CanLII)
  10. ↑ Johnson (Re), 2014 LSBC 8 (CanLII)
    Lang (Re), 2022 LSBC 4 (CanLII), at para 24
  11. ↑ Law Society of Ontario v. Regan, 2023 ONLSTH 47 (CanLII), at para 288
  12. ↑ Regan, supra, at para 289
    Law Society of Upper Canada v. Carey, 2017 ONLSTH 25 at para. 50
  13. ↑ Lang, ibid., at para 17
    Foo v Law Society of British Columbia, 2017 BCCA 151 (CanLII), at para 63
    Schauble, 2009 LSBC 11 (CanLII), at para 43

Professional Incompetence

Negligence alone is not sufficient.[1] It is possible that conduct can be negligent but not breach the code of conduct.[2]

Negligence

A lawyer will be held to a standard of care of an "ordinary reasonably competent" solicitor.[3]

  1. ↑ LSO v. McLean, 2020 ONLSTH 11 (CanLII), at para 10
    LSUC v Zaretsky, 2013 ONLSHP 54 (CanLII), at para 177
  2. ↑ Galambos v. Perez, 2009 SCC 48 (CanLII), [2009] 3 SCR 247, at para 29, <https://canlii.ca/t/266b1#par29>
  3. ↑ Central Trust v Rafuse [1986] 2 SCR 147, 1986 CanLII 29 , at paras 58 and 60

Conduct Unbecoming

condcut unbecoming is defined in the code of conduct.

In BC, s. 1 of the LSBC defines "conduct unbecoming":

“conduct unbecoming a lawyer” includes a matter, conduct, or thing that is considered, in the judgment of the benchers, a panel or a review board,

(a) to be contrary to the best interests of the public or of the legal profession, or
(b) to harm the standing of the legal profession;

–

In Ontario, the Rules of Professional Conduct defines "conduct unbecoming":[1]

conduct, including conduct in a lawyer's personal or private capacity, that tends to bring discredit upon the legal profession including, for example,

(a) committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer,
(b) taking improper advantage of the youth, inexperience, lack of education, unsophistication, ill health, or unbusinesslike habits of another, or
(c) engaging in conduct involving dishonesty or conduct which undermines the administration of justice;

–

In Saskatchewan, the Legal Profession Act states at s. 2(1)(d):

“conduct unbecoming” means any act or conduct, whether or not disgraceful or dishonourable, that:

(i) is inimical to the best interests of the public or the members; or
(ii) tends to harm the standing of the legal profession generally;

and includes the practice of law in an incompetent manner where it is within the scope of subclause (i) or (ii);

–

Consideration must be "limited to the public interest in the conduct" or the "competence of a member."[2]

Conduct Outside of Work

Conduct "unbecoming" can include conduct outside of the member's work.[3] However, not all conduct can be a basis for discipline.[4] It is generally conduct that has "direct impairment is impairment in the effective performance of the specific job" or impairment in a wider sense.[5]

There is no need for direct evidence of impairment. It can be inferred.[6]

The factors to consider include:[7]

  1. the nature of the conduct at issue;
  2. the nature of the position;
  3. whether there is evidence of a pattern of conduct;
  4. evidence of controversy surrounding the conduct;
  5. evidence that the private conduct has been made public; and
  6. evidence that the private conduct has been linked by the member to the professional status of the member.
Examples

Criminal offences relating to child pornography have been found to be conduct unbecoming.[8]

  1. ↑ Law Society of Ontario v. Martosh, 2024 ONLSTH 18 (CanLII), at para 17
  2. ↑ Edwards (Re), 2020 LSBC 21 (CanLII), at para 55
    Re Pierce and the Law Society of British Columbia, 1993 CanLII 765 (BC SC), 103 D.L.R. (4th) 233 at 247 ("When considering conduct unbecoming, the Benchers’ consideration must, therefore, be limited to the public interest in the conduct or competence of a member of the profession.")
  3. ↑ Template:CanLIIRCN
    Sazant v College of Physicians and Surgeons, 2012 ONCA 727 (CanLII)
    Fountain v. British Columbia College of Teachers, 2007 BCSC 830 (CanLII), at para 60
  4. ↑ Shewan v. Abbotsford School District No. 34, 1987 CanLII 159 (BC CA)
    Fountain, supra, at para 60
  5. ↑ Fountain, supra, at para 52
  6. ↑ Fountain, supra, at para 65
  7. ↑ Fountain, supra, at para 59
  8. ↑ Law Society of Ontario v. Martosh, 2024 ONLSTH 18 (CanLII), at para 18 (e.g. possession of child pornography)

Integrity and Honesty

The term "integrity" does not have an "all-purpose" definition and is more "nebulous."[1]

Generally, integrity is broader than "honesty."[2] It includes "honesty and fair dealing."[3] It is more than the absence of dishonesty or deceit.[4]

There is a breach of integrity when the member, when viewed "objectively", "fails to meet the high professional standards to be expected of a solicitor" to the extent that there is "objective wrong-doing."[5]

It has also been defined as the "soundness of moral principle and character", acting with "probity, honesty, and uprightness", and "doing the right thing the right way."[6]

  1. ↑ The Nova Scotia Barristers’ Society v. Christopher Ian Robinson, 2023 NSBS 1 (CanLII), at para 31
  2. ↑ Robinson, supra, at para 32
  3. ↑ Robinson, supra, at para 33
    Law Society of Ontario v. Goodman, 2020 ONLSTH 101 (CanLII), at para 25
  4. ↑ Law Society of Alberta v. Ingimundson, 2014 ABLS 52 (CanLII), at para 48
  5. ↑ Robinson, supra, at para 34
  6. ↑ Robinson, supra at para 36 The Law Society of Manitoba v Sullivan, 2018 MBLS 9 (CanLII), at para 28

"Good Character"

"Good character" is not generally defined by statute or regulation. It has been described, however, as "that combination of qualities or features distinguishing one person from another. Good character connotes moral or ethical strength, distinguishable as an amalgam of virtuous attributes or traits which undoubtedly include, among others, integrity, candour, empathy and honesty."[1]

Once an allegation is made by a law society against character, the burden moves to the member to prove on balance probabilities that he is of good character.[2]

Relevant factors to determine character include:[3]

  1. the nature and duration of the misconduct;
  2. whether the applicant is remorseful;
  3. what rehabilitative efforts, if any, have been taken, and the success of such efforts;
  4. the applicant’s conduct since the proven misconduct; and
  5. the passage of time since the misconduct.
  1. ↑ Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 23
  2. ↑ Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 27
    Preyra, Re, 2000 CanLII 14383 (ON LST)
  3. ↑ Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 29
    Alden Birman v. LSUC, 2005 ONLSHP 6 (CanLII), at para 15

Incivility

The requirements of civility cannot be said to "compromise the lawyer's duty of resolute advocacy."[1]

A lawyer should not be sanctioned just because they took "questionable litigation strategies."[2]


  1. ↑ Groia v. Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, at para 71
  2. ↑ Groia, supra, at para 85
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