Legal Profession Regulation: Difference between revisions

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Reasons of health will normally need to be substantiated and connected with their inability to participate.<ref>
Reasons of health will normally need to be substantiated and connected with their inability to participate.<ref>
{{CanLIIR|LSO v Oti|k0xcp|2023 ONLSTH 141 (CanLII)}}
{{CanLIIR|LSO v Oti|k0xcp|2023 ONLSTH 141 (CanLII)}}
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===Evidence===
Rule 21.06 of the Rules of Practice and Procedure permits hearsay on interlocutory suspensions.<Ref>
{{CanLIIRC|Law Society of Upper Canada v. Ejidike|gtxg5|2016 ONLSTA 18 (CanLII)}}{{atL|gtxg5|48}}
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Revision as of 12:05, 26 January 2024

General Principles

The regulation of lawyers is a matter in the provincial domain. The legislation for each province is as follows:

Offences

  • Conduct unbecoming[1]
  • professional misconduct[2]
  1. ↑ 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.”")
  2. ↑ Batchelor (Re), 2013 LSBC 9 (CanLII), at paras 24 to 30

Procedure

Adjournments

There are factors to consider for an adjournment:[1]

  1. the purpose of the adjournment (relevance to the proceedings, necessary for a fair hearing);
  2. has the participant seeking the adjournment acted in good faith and reasonably in attempting to avoid the necessity of adjourning;
  3. the position of other participants and the reasonableness of their actions;
  4. the seriousness of the harm resulting if the adjournment is not granted;
  5. the seriousness of the harm resulting if the adjournment is granted (to the other participants, etc., including the length of adjournment required);
  6. is there any way to compensate for any harm identified;
  7. how many adjournments has the party requesting the adjournment been granted in the past; and
  8. was the hearing to be peremptory, and if so, were the parties consulted in selecting the date and were they advised of its peremptory nature.

see also Baker (Re), 2023 CanLII 98517 (NL LS), LSO v Oti, 2023 ONSLSTH 141, LSO v Lulic, 2023 ONLSTH 159, Re Guo, 2023 LSBC 41.

  1. ↑ De Lange (Re), 2022 LSBC 35 (CanLII), at para 14 ("In both Welder and in Law Society of BC v. Hart, 2019 LSBC 39 the panel cited the following non-exhaustive list of factors to be considered for adjournment motions as set out in Macaulay & Sprague, Practice and Procedure Before Administrative Tribunals, (Toronto: Thomson Carswell, 2004):...")

Proceeding Without Respondent

The respondent has a right to notice of a hearing. However, absent statutory obligations, there is no right be present at a determination hearing.

Reasons of health will normally need to be substantiated and connected with their inability to participate.[1]

  1. ↑ R v LSO v Oti, 2023 ONLSTH 141 (CanLII)

Evidence

Rule 21.06 of the Rules of Practice and Procedure permits hearsay on interlocutory suspensions.[1]

  1. ↑ Law Society of Upper Canada v. Ejidike, 2016 ONLSTA 18 (CanLII), at para 48

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."[1]

The objectives of a penalty include:[2]

  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.[3]

Factors

Factors to consider on penalty include:[4]

  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.

The protection of the public by means of rehabilitation does not have much relevance when the choice is between disbarment and resignation.[5]

  1. ↑ see Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (Carswell, 1993) at page 26-1
    Batchelor (Re), 2013 LSBC 9 (CanLII), at para 40
  2. ↑ NSBS v Rodgers, 2021 NSBS 2 (CanLII), at para 9
    LSUC v Strug, 2008 ONLSHP 88 (CanLII), at paras 3 to 8
  3. ↑ Nova Scotia Barristers’ Society v Steele, 1995 NSBS 8 (CanLII)
  4. ↑ Batchelor (Re), ibid., at para 41
    Law Society of BC v. Ogilvie, [1999] LSBC 17
    Faminoff v The LSBC, 2017 BCCA 373 (CanLII), at para 36
    Nova Scotia Barristers’ Society v Steele, 1995 NSBS 8 (CanLII) citing Lawyers and Ethics, Professional Responsibility and Discipline by Gavin MacKenzie (Carswell, 1993)
  5. ↑ Steele, supra

Penalties

Ontario
Nova Scotia

See Also

Databases
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