Sentencing for Legal Profession Offences: Difference between revisions

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# whether the doctor cooperated with respect to the investigation and offered to facilitate proof by admissions, etc.
# whether the doctor cooperated with respect to the investigation and offered to facilitate proof by admissions, etc.
# 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.”
# 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.<ref>
Law Society of Ontario v. Perrelli, 2018 ONLSTH 80 (CanLII), at para 30, <https://canlii.ca/t/hsfjm#par30>, retrieved on 2024-02-14<br>
Law Society of Upper Canada v. Joseph Dannial Ernest Stewart Baker, 2006 ONLSHP 21 (CanLII), at para 12, <https://canlii.ca/t/1nq34#par12>, retrieved on 2024-02-14<br>
</ref>
Factors to determine costs include:<Ref>
{{supra1|Perrelli}} at para 31
</ref>
# the amount involved in the proceeding;
# the complexity of the proceeding;
# the importance of the issues;
# the duration of the hearing;
# the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
# whether any step in the proceeding was improper, vexatious or unnecessary, or taken through mistake or excessive caution;
# the ability of the party to pay a costs award;
# reasonable expectations of the parties;
# the costs awarded in other cases;
# the principle of proportionality; and
# the circumstances of the proceeding.
{{Reflist|2}}

Revision as of 22:44, 14 February 2024

General Principles

See also: 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."[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]

The objectives, in context of the BC Act, does not mean the objective of the penalty is to punish.[4]

  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
    The Nova Scotia Barristers’ Society v. Christopher Ian Robinson, 2024 NSBS 1 (CanLII), at para 6
    Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (CanLII), at para 53
  2. ↑ NSBS v Rodgers, 2021 NSBS 2 (CanLII), at para 9
    LSUC v Strug, 2008 ONLSHP 88 (CanLII), at paras 3 to 8
    Law Society of BC v. Ogilvie, 1999 LSBC 17 ("In determining an appropriate penalty, the panel must consider what steps might be necessary to ensure that the public is protected, while also taking into account the risk of allowing the respondent to continue in practice.")
  3. ↑ Nova Scotia Barristers’ Society v Steele, 1995 NSBS 8 (CanLII)
  4. ↑ Edwards (Re), 2020 LSBC 57 (CanLII), at para 11
    Denovan Hill (Re), 2011 LSBC 16 (CanLII), at para 3

Factors

Factors to consider on penalty include:[1]

  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:[2]

  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.[3]

Suspension

When considering a suspension, the salient features include:[4]

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

Where there is a finding of guilt on multiple allegations, the assessment should be global.[5]

Prior offending

A panel should apply the principle of "progressive discipline" for repeat offenders.[6]

  1. ↑ Batchelor (Re), ibid., at para 41
    Law Society of BC v. Ogilvie, [1999] LSBC 17
    Edwards (Re), 2020 LSBC 57 (CanLII), at para 12
    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)
    Law Society of British Columbia v. Ogilvie [1999] L.S.D.D. No. 45, [1999] LSBC 17
  2. ↑ Howe, supra
  3. ↑ Steele, supra
  4. ↑ Law Society of BC v. Martin, 2007 LSBC 20
    Edwards (Re), 2020 LSBC 57 (CanLII), at para 15
  5. ↑ Edwards (Re), 2020 LSBC 57 (CanLII), at para 16
    {{CanLIIRC|Gellert (Re)|g33hc|2014 LSBC 5 (CanLII), at para 37 ("A global approach tends to carry with it the benefit of simplicity and will, in most cases, be particularly well-suited to arriving at a result that furthers the objective of protecting the public. After all, the extent to which the public needs protection, and the manner by which such protection is best provided, must ultimately relate to the entire scope of the misconduct in issue and not to each particular wrongdoing viewed piecemeal.")
  6. ↑ Lang (Re), 2022 LSBC 4 (CanLII), at para 38
    Batchelor (Re), 2013 LSBC 9 (CanLII), at para 49 to 51

Offences

Professional Misconduct

Communicating with represented litigants can range from reprimand to lower fine.[1]

Penalties

Costs

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

Factors to consider for costs include:[2]

  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.[3]

Factors to determine costs include:[4]

  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.
  1. ↑ Lang (Re), 2022 LSBC 4 (CanLII), at para 29
    Law Society of Alberta v. Gary Bilyk, 2006 LSA 18 (CanLII)
    Law Society of Alberta v. Hanson, 2010 ABLS 20 (CanLII)
  2. ↑ The Nova Scotia Barristers’ Society v. Lyle Howe, 2017 NSBS 4 (CanLII), at para 94
  3. ↑ Law Society of Ontario v. Perrelli, 2018 ONLSTH 80 (CanLII), at para 30, <https://canlii.ca/t/hsfjm#par30>, retrieved on 2024-02-14
    Law Society of Upper Canada v. Joseph Dannial Ernest Stewart Baker, 2006 ONLSHP 21 (CanLII), at para 12, <https://canlii.ca/t/1nq34#par12>, retrieved on 2024-02-14
  4. ↑ Perrelli, supra at para 31
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