Legal Profession Offences

Offences

Allegations can include:

• professional misconduct
  • failing to act with honesty and integrity
• Conduct unbecoming
• incivility
• professional incompetence;
• incapacitated.

Onus and Burden of Proof

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

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."

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

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.

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

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

Factors to consider include:

• 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.

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

Even the use of profane language can constitute professional misconduct.

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

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

Burden and standard of proof

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

Professional Incompetence

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

Negligence

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

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":

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."

Conduct Outside of Work

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

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

The factors to consider include:

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.

Integrity and Honesty

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

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

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."

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."

"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."

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.

Relevant factors to determine character include:

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.

Incivility

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

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