Sentencing for Legal Profession Offences

Principles and Factors

Purposes

The purpose of a law society discipline proceedings is "not to punish offenders and exact retribution, but rather to protect the public, maintain high professional standards, and preserve public confidence in the legal profession."

The objectives of a penalty include:

1. specific deterrence, which would be an order preventing a particular lawyer from continuing in a course of conduct.
2. general deterrence, which is an order that the entire membership should take into account. It is designed to deter the membership at large from engaging in a certain course of conduct.
3. directed towards such aspects as rehabilitation, restitution, and improving the competence of a particular lawyer.
4. the most fundamental, and that is to maintain public confidence in the legal profession.

Disciplinary bodies will often take into account sentencing principles from criminal law.

The objectives, in context of the BC Act, does not mean the objective of the penalty is to punish.

One conception of how to use sentence to achieve the objectives is to use the gravity of the offence as a "benchmark." The objective of public protection is then a "prism" through which the factors are considered.

Factors

Factors to consider on penalty include:

1. the nature and gravity of the conduct proven;
2. the age and experience of the respondent;
3. the previous character of the respondent, including details of prior discipline;
4. the impact upon the victim;
5. the advantage gained, or to be gained, by the respondent;
6. the number of times the offending conduct occurred;
7. whether the respondent has acknowledged the misconduct and taken steps to disclose and redress the wrong and the presence or absence of other mitigating circumstances;
8. the possibility of remediating or rehabilitating the respondent;
9. the impact upon the respondent of criminal or other sanctions or penalties;
10. the impact of the proposed penalty on the respondent;
11. the need for specific and general deterrence;
12. the need to ensure the public’s confidence in the integrity of the profession;
13. the range of penalties imposed in similar cases;
14. likelihood of reoffence;
15. mental state;
16. presence of addictions;
17. stresses from financial or matrimonial difficulties;
18. amount of restitution given.

Other factors can include:

1. community support
2. impact of systemic, actual, and historical racism.

The protection of the public by means of rehabilitation does not have much relevance when the choice is between disbarment and resignation.

Suspension

When considering a suspension, the salient features include:

1. elements of dishonesty;
2. repetitive acts of deceit or negligence; and
3. significant personal or professional conduct issues.

Loss of Licence

Failure of integrity does not necessarily mean a loss of licence.

There is some suggestion that false representation in documents in certain circumstances may create a "presumption of revocation."

Penalty for Multiple Offences

Where there is a finding of guilt on multiple allegations, the assessment should be global.

Prior offending

A panel should apply the principle of "progressive discipline" for repeat offenders.

Prior Good Character

Evidence of otherwise good character can be used as a mitigating factor in sentencing as it is a indicator of a likelihood of re-offence.

The value of such evidence is much less valueable if the witness if they are not fully informed of the facts or are influenced by factors including friendship.

This type of evidence should not be used to distract from the "essential issue" of the objectives of sentencing.

Joint Submnissions

The panel should consider a joint submission and accept it unkess it is "unfit or unreasonable, contrary to the public interest, or ther are good and cogent reasons for rejecting it."

Offences

Professional Misconduct

Communicating with represented litigants can range from reprimand to lower fine.

Penalties

• Legal Profession Offences (Sentencing Cases)

Costs

In Nova Scotia, s 45(4) of the LPA sets out the powers to order costs.

Factors to consider for costs include:

1. the degree of success, if any, of the physician in resisting any or all of the charges
2. the necessity for calling all of the witnesses who gave evidence or for incurring other expenses associated with the hearing
3. whether the persons presenting the case against the doctor could reasonably have anticipated the result based upon what they knew prior to the hearing
4. whether those presenting the case against the doctor could reasonably have anticipated the lack of need for certain witnesses or incurring certain expenses in light of what they knew prior to the hearing
5. whether the doctor cooperated with respect to the investigation and offered to facilitate proof by admissions, etc.
6. the financial circumstances of the doctor and the degree to which his financial position has already been affected by other aspects of any penalty that has been imposed.”

In Ontario, it is a principle that the profession should not bear the costs of prosecuting misconduct.

Factors to determine costs include:

1. the amount involved in the proceeding;
2. the complexity of the proceeding;
3. the importance of the issues;
4. the duration of the hearing;
5. the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
6. whether any step in the proceeding was improper, vexatious or unnecessary, or taken through mistake or excessive caution;
7. the ability of the party to pay a costs award;
8. reasonable expectations of the parties;
9. the costs awarded in other cases;
10. the principle of proportionality; and
11. the circumstances of the proceeding.

The financial burden of a prosecution does not necessarily rest on the profession itself.

In Saskatchewan, it has been articulated as the following factors:

1. the balance between the effect of a cost award on the [member] and the need for the College to be able to effectively administer the disciplinary process;
2. the respective degrees of success of the parties;
3. costs awards ought not to be punitive;
4. the other sanctions imposed and the expenses associated therewith; and
5. the relative time and expense of the investigation and hearing associated with each of the charges and in particular those on which guilt were entered and those where the [member] was found not guilty.