Legal Profession Regulation: Difference between revisions

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==Offences==
==Offences==


Allegations can include:
* professional misconduct<ref>
{{CanLIIRC|Batchelor (Re)|fwkv5|2013 LSBC 9 (CanLII)}}{{AtsL|fwkv5|24| to 30}}
</ref>
* Conduct unbecoming<ref>
* Conduct unbecoming<ref>
ON: {{CanLIIRC|LSO v. Zaitzeff|jhrtm|2021 ONLSTH 108 (CanLII)}}{{atL|jhrtm|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.”")
ON: {{CanLIIRC|LSO v. Zaitzeff|jhrtm|2021 ONLSTH 108 (CanLII)}}{{atL|jhrtm|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.”")
</ref>
</ref>
* professional misconduct<ref>
* professional incompetence;
{{CanLIIRC|Batchelor (Re)|fwkv5|2013 LSBC 9 (CanLII)}}{{AtsL|fwkv5|24| to 30}}
* incapacitated.
</ref>


{{reflist|2}}
{{reflist|2}}
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see also {{CanLIIRC|Baker (Re)|k0szf|2023 CanLII 98517 (NL LS)}}, {{CanLIIRC|LSO v Oti|k0xcp|2023 ONLSTH 141 (CanLII)}}, {{CanLIIRC|LSO v Lulic|k1f8j|2023 ONLSTH 159 (CanLII)}}, {{CanLIIRC|Re Guo|k0l7c|2023 LSBC 41 (CanLII)}}, {{CanLIIRC|Macdonald v. Institute of Chartered Accountants of British Columbia|2d6tw|2010 BCCA 492 (CanLII)}}
see also {{CanLIIRC|Baker (Re)|k0szf|2023 CanLII 98517 (NL LS)}}, {{CanLIIRC|LSO v Oti|k0xcp|2023 ONLSTH 141 (CanLII)}}, {{CanLIIRC|LSO v Lulic|k1f8j|2023 ONLSTH 159 (CanLII)}}, {{CanLIIRC|Re Guo|k0l7c|2023 LSBC 41 (CanLII)}}, {{CanLIIRC|Macdonald v. Institute of Chartered Accountants of British Columbia|2d6tw|2010 BCCA 492 (CanLII)}}


In Ontario, assessment of an adjournment should include:
In Ontario, the assessment of an adjournment should include:
<ref>
<ref>
{{CanLIIR|Igbinosun v Law Society of Upper Canada|23zpw|2009 ONCA 484 (CanLII)}}{{atL|23zpw|37}} ("A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.")</ref>
{{CanLIIR|Igbinosun v Law Society of Upper Canada|23zpw|2009 ONCA 484 (CanLII)}}{{atL|23zpw|37}} ("A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.")</ref>
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{{reflist|2}}
{{reflist|2}}


===Incapacity===
In Ontario, s. 37 of the LSO provides that a member is incapacitated where he is unable to meet his obligations for reason of one or more enumerated circumstances.<ref>
{{CanLIIRC|Law Society of Ontario v. Fiorillo|k2qw3|2024 ONLSTH 17 (CanLII)}}{{atsL|k2qw3|63| to 67}}
</ref>


===Revisiting Decisions===
===Revisiting Decisions===

Revision as of 13:25, 14 February 2024

General Principles

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

Offences

Allegations can include:

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

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 ONLSTH 141 (CanLII), LSO v Lulic, 2023 ONLSTH 159 (CanLII), Re Guo, 2023 LSBC 41 (CanLII), Macdonald v. Institute of Chartered Accountants of British Columbia, 2010 BCCA 492 (CanLII)

In Ontario, the assessment of an adjournment should include: [2]

  • Procedural Considerations:
    • lack of compliance with prior court orders;
    • previous adjournments that have been granted;
    • previous preemptory hearings;
    • desirability of having the matter decided;
    • evidence of the applicant seeking to manufacture delay;
    • honest attempt to seek counsel;
    • seriousness of the allegations;
    • whether hte applicant is prejudiced by failure to delay the case;
    • timeliness of the request;
    • reasons for being unable to proceed;
    • length of time being requested.

see also: Yune v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 36460 (ON SCDC), Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ON SCDC)

  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):...")
  2. ↑ R v Igbinosun v Law Society of Upper Canada, 2009 ONCA 484 (CanLII), at para 37 ("A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.")

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

Incapacity

In Ontario, s. 37 of the LSO provides that a member is incapacitated where he is unable to meet his obligations for reason of one or more enumerated circumstances.[1]

Revisiting Decisions

Once a panel makes a finding of conviction, the panel cannot revisit the determination as they are "functus officio."[2]

  1. ↑ Law Society of Ontario v. Fiorillo, 2024 ONLSTH 17 (CanLII), at paras 63 to 67
  2. ↑ Law Society of Upper Canada v. Charles Douglas Sutherland, 2011 ONLSHP 112 (CanLII)

Sentencing

See Also

Databases
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