Sentencing for Legal Profession Offences: Difference between revisions
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Law Society of BC v. Ogilvie, [1999] LSBC 17<br> | Law Society of BC v. Ogilvie, [1999] LSBC 17<br> | ||
{{CanLIIRC|Faminoff v The LSBC|hmtds|2017 BCCA 373 (CanLII)}}{{atL|hmtds|36}}<br> | {{CanLIIRC|Faminoff v The LSBC|hmtds|2017 BCCA 373 (CanLII)}}{{atL|hmtds|36}}<br> | ||
{{CanLIIRC|The Nova Scotia Barristers’ Society v. Lyle Howe|hsgxt|2017 NSBS 4 (CanLII)}}{{atL|hsgxt|5}} | |||
{{CanLIIRC|Nova Scotia Barristers’ Society v Steele|1sphs|1995 NSBS 8 (CanLII)}} citing ''Lawyers and Ethics, Professional Responsibility and Discipline'' by Gavin MacKenzie (Carswell, 1993) | {{CanLIIRC|Nova Scotia Barristers’ Society v Steele|1sphs|1995 NSBS 8 (CanLII)}} citing ''Lawyers and Ethics, Professional Responsibility and Discipline'' by Gavin MacKenzie (Carswell, 1993) | ||
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# stresses from financial or matrimonial difficulties; | # stresses from financial or matrimonial difficulties; | ||
# amount of restitution given. | # amount of restitution given. | ||
Other factors can include:<REf> | |||
{{supra1|Howe}} | |||
</ref> | |||
# community support | |||
# 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.<Ref> | The protection of the public by means of rehabilitation does not have much relevance when the choice is between disbarment and resignation.<Ref> | ||
Revision as of 13:56, 14 February 2024
General Principles
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]
- specific deterrence, which would be an order preventing a particular lawyer from continuing in a course of conduct.
- 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.
- directed towards such aspects as rehabilitation, restitution, and improving the competence of a particular lawyer.
- 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]
- the nature and gravity of the conduct proven;
- the age and experience of the respondent;
- the previous character of the respondent, including details of prior discipline;
- the impact upon the victim;
- the advantage gained, or to be gained, by the respondent;
- the number of times the offending conduct occurred;
- 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;
- the possibility of remediating or rehabilitating the respondent;
- the impact upon the respondent of criminal or other sanctions or penalties;
- the impact of the proposed penalty on the respondent;
- the need for specific and general deterrence;
- the need to ensure the public’s confidence in the integrity of the profession;
- the range of penalties imposed in similar cases;
- likelihood of reoffence;
- mental state;
- presence of addictions;
- stresses from financial or matrimonial difficulties;
- amount of restitution given.
Other factors can include:[5]
- community support
- 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.[6]
- ↑
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
- ↑
NSBS v Rodgers, 2021 NSBS 2 (CanLII), at para 9
LSUC v Strug, 2008 ONLSHP 88 (CanLII), at paras 3 to 8 - ↑ Nova Scotia Barristers’ Society v Steele, 1995 NSBS 8 (CanLII)
- ↑
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
The Nova Scotia Barristers’ Society v. Lyle Howe, 2017 NSBS 4 (CanLII), at para 5 Nova Scotia Barristers’ Society v Steele, 1995 NSBS 8 (CanLII) citing Lawyers and Ethics, Professional Responsibility and Discipline by Gavin MacKenzie (Carswell, 1993) - ↑ Howe, supra
- ↑ Steele, supra