View source for Legal Profession Offences

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==Offences==
{{seealso|Legal Profession Regulation}}
Allegations can include:
* professional misconduct<ref>
{{CanLIIRC|Batchelor (Re)|fwkv5|2013 LSBC 9 (CanLII)}}{{AtsL|fwkv5|24| to 30}}
</ref>
** failing to act with honesty and integrity
* Conduct unbecoming<ref>
ON: {{CanLIIRC|LSO v. Zaitzeff|jhrtm|2021 ONLSTH 108 (CanLII)}}{{atL|jhrtm|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.”")
</ref>
* incivility
* professional incompetence;
* incapacitated.

; Onus and Burden of Proof 
An allegation of conduct unbecoming must be proven on balance probabilities.<Ref>
{{CanLIIRC|The Nova Scotia Barristers’ Society v. Rhyno|jgfpj|2019 NSBS 1 (CanLII)}}{{atL|jgfpj|24}}
</ref>

{{Reflist|2}}

===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."<ref>
{{CanLIIRC|Martin, Re|1ln4b|2005 LSBC 16 (CanLII)}}{{AtL|1ln4b|154}}<br>
{{CanLIIRC|Sangha (Re)|jrjk5|2020 LSBC 3 (CanLII)}}{{AtL|jrjk5|65}}<br>
</ref>

The test requires that there is a "marked departure" in culpability.<ref>
{{supra1|Sangha}}{{AtL|jrjk5|67}}<Br>
{{supra1|Martin}}{{atL|1ln4b|171}}<br>
{{CanLIIRC|Lawyer 12 (Re)|fpbr0 |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.")
</ref>
It has also been characterized as requiring something "outside the permissible bounds."
<ref>
Stevens [v. Law Society (Upper Canada), (1979), 1979 CanLII 1749 (ON SC), 55 OR (2d) 405 (Div. Ct.)
</ref>

The test is strictly objective and should not include any subjective assesmsent.<ref>
{{supra1|Sangha}}{{atL|jrjk5|67}}<br>
{{CanLIIRC|Kim (Re)|j3svb|2019 LSBC 43 (CanLII)}}{{atL|j3svb|45}}
</ref>

It is not necessary that the conduct be "disgraceful or dishonourable."<ref>
{{CanLIIRC|Edwards (Re)|j8gsr|2020 LSBC 21 (CanLII)}}{{atL|j8gsr|44}}<br>
{{supra1|Martin}} ("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.")
</ref>

Factors to consider include:<Ref>
{{CanLIIRC|Vlug (Re)|hv8kf|2018 LSBC 26 (CanLII)}}{{AtL|hv8kf|115}}<br>
{{supra1|Sangha}}{{atL|jrjk5|68}}<br>
{{CanLIIRC|Lyons (Re)|1wbpn|2008 LSBC 9 (CanLII)}}
</ref>
* 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.<Ref>
{{Supra1|Sangha}} at para 68<br>
{{CanLIIRC|Boles (Re)|jrjm4|2016 LSBC 48 (CanLII)}}{{AtL|jrjm4|56}}<br>
{{CanLIIRC|Harding (Re)|gf7kj|2014 LSBC 52 (CanLII)}}{{atL|gf7kj|78}}
</ref>

The offence cannot be made out merely by error on the part of the lawyer.<ref>
Boles at para 57<Br>
{{CanLIIRC|Lawyer 10 (Re)|28k12|2010 LSBC 2 (CanLII)}}
</ref>

Even the use of profane language can constitute professional misconduct.<ref>
{{CanLIIRC|Johnson (Re)|g469v|2014 LSBC 8 (CanLII)}}<br>
{{CanLIIRC|Lang (Re)|jm1f1|2022 LSBC 4 (CanLII)}}{{atL|jm1f1|24}}
</ref>

; Burden and standard of proof
The onus is upon the society to prove the conduct constitutes misconduct on a balance of probabilities.<Ref>
{{ibid1|Lang}}{{atL|jm1f1|17}}<br>
{{CanLIIRC|Foo v Law Society of British Columbia|h34sv|2017 BCCA 151 (CanLII)}}{{atL|h34sv|63}}<br>
{{CanLIIRC|Schauble|2381r|2009 LSBC 11 (CanLII)}}{{AtL|2381r|43}}
</ref>

{{reflist|2}}

===Professional Incompetence===
Negligence alone is not sufficient.<Ref>
{{CanLIIRC|LSO v. McLean|j4txf|2020 ONLSTH 11 (CanLII)}}{{atL|j4txf|10}}<br>
{{CanLIIRC|LSUC v Zaretsky|fx3k6|2013 ONLSHP 54 (CanLII)}}{{AtL|fx3k6|177}}<br>
</ref>

{{reflist|2}}

===Conduct Unbecoming===
condcut unbecoming is defined in the code of conduct. 

In BC, s. 1 of the LSBC defines "conduct unbecoming":
{{quotation1|
“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":<ref>
{{CanLIIRC|Law Society of Ontario v. Martosh|k2qw4|2024 ONLSTH 18 (CanLII)}}{{atL|k2qw4|17}}
</ref>
{{quotation1|
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;
|
}}

Consideration must be "limited to the public interest in the conduct" or the "competence of a member".<ref>
{{CanLIIRC|Edwards (Re)|j8gsr|2020 LSBC 21 (CanLII)}}{{AtL|j8gsr|55}}<br>
{{CanLIIRPC|Re Pierce and the Law Society of British Columbia|1dhnz|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.")
</ref>

; Conduct Outside of Work
Conduct "unbecoming" can include conduct outside of the member's work.<Ref>
{{CanLIIRCN|Law Society of BC v Watt|2001 LSBC 16, [2001] LSDD No. 45}}<br>
{{CanLIIRC|Sazant  v College of Physicians and Surgeons|fthf1|2012 ONCA 727 (CanLII)}}<br>
{{CanLIIRC|Fountain v. British Columbia College of Teachers|1rr85|2007 BCSC 830 (CanLII)}}{{atL|1rr85|60}}
</ref>
However, not all conduct can be a basis for discipline.<Ref>
{{CanLIIRC|Shewan v. Abbotsford School District No. 34|1p6pq|1987 CanLII 159 (BC CA)|21 BCLR 2d 93}}<Br>
{{supra1|Fountain}}{{AtL|1rr85|60}}
</ref>
It is generally conduct that has "direct impairment is impairment in the effective performance of the specific job" or impairment in a wider sense.<Ref>
{{supra1|Fountain}}{{atL|1rr85|52}}
</ref>

There is no need for direct evidence of impairment. It can be inferred.<Ref>
{{supra1|Fountain}}{{AtL|1rr85|65}}
</ref>

The factors to consider include:<ref>
{{supra1|Fountain}}{{atL|1rr85|59}}
</ref>
# the nature of the conduct at issue;
# the nature of the position;
# whether there is evidence of a pattern of conduct;
# evidence of controversy surrounding the conduct;
# evidence that the private conduct has been made public; and
# 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.<ref>
{{CanLIIRC|Law Society of Ontario v. Martosh|k2qw4|2024 ONLSTH 18 (CanLII)}}{{atL|k2qw4|18}} (e.g. possession of child pornography)
</ref>

{{reflist|2}}

===Integrity and Honesty===

The term "integrity" does not have an "all-purpose" definition and is more "nebulous."<Ref>
{{CanLIIRC|The Nova Scotia Barristers’ Society v. Christopher Ian Robinson|jwxjp|2023 NSBS 1 (CanLII)}}{{atL|jwxjp|31}}
</ref>

Generally, integrity is broader than "honesty."<Ref>
{{supra1|Robinson}}{{atL|jwxjp|32}}
</ref>
It includes "honesty and fair dealing."<Ref>
{{supra1|Robinson}}{{atL|jwxjp|33}}<Br>
{{CanLIIRC|Law Society of Ontario v. Goodman|j9b4p|2020 ONLSTH 101 (CanLII)}}{{atL|j9b4p|25}}
</ref>
It is more than the absence of dishonesty or deceit.<ref>
{{CanLIIRC|Law Society of Alberta v. Ingimundson|ggsw8|2014 ABLS 52 (CanLII)}}{{atL|ggsw8|48}}
</ref>

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."<ref>
{{supra1|Robinson}}{{atL|jwxjp|34}}
</ref>

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."<ref>
{{supra1|Robinson}} at para 36
{{CanLIIRC|The Law Society of Manitoba v Sullivan|j0cvj|2018 MBLS 9 (CanLII)}}{{atL|j0cvj|28}}
</ref>

{{reflist|2}}

==="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."<Ref>
{{CanLIIRC|Claude Hyman Armstrong v. Law Society of Upper Canada|232q7|2009 ONLSHP 29 (CanLII)}}{{atL|232q7|23}}
</ref>

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.<ref>
{{CanLIIRC|Claude Hyman Armstrong v. Law Society of Upper Canada|232q7|2009 ONLSHP 29 (CanLII)}}{{atL|232q7|27}}<Br>
{{CanLIIRC|Preyra, Re|1gssl|2000 CanLII 14383 (ON LST)}}
</ref>

Relevant factors to determine character include:<ref>
{{CanLIIRC|Claude Hyman Armstrong v. Law Society of Upper Canada|232q7|2009 ONLSHP 29 (CanLII)}}{{atL|232q7|29}}<br>
{{CanLIIRC|Alden Birman v. LSUC|1k37j|2005 ONLSHP 6 (CanLII)}}{{atL|1k37j|15}}
</ref>
# the nature and duration of the misconduct;
# whether the applicant is remorseful;
# what rehabilitative efforts, if any, have been taken, and the success of such efforts;
# the applicant’s conduct since the proven misconduct; and
# the passage of time since the misconduct.

{{reflist|2}}

===Incivility===

The requirements of civility cannot be said to "compromise the lawyer's duty of resolute advocacy."<ref>
{{CanLIIRPC|Groia v. Law Society of Upper Canada|hsb9d|2018 SCC 27 (CanLII)|[2018] 1 SCR 772}}{{atL|hsb9d|71}}
</ref>

A lawyer should not be sanctioned just because they took "questionable litigation strategies."<ref>
{{supra1|Groia}}{{atL|hsb9d|85}}
</ref>


{{reflist|2}}