Legal Profession Offences: Difference between revisions
Removed redirect to Legal Profession Regulation Tags: Removed redirect wikieditor |
Tag: wikieditor |
||
| Line 12: | Line 12: | ||
* professional incompetence; | * professional incompetence; | ||
* incapacitated. | * incapacitated. | ||
; Onus and Burden of Proof | |||
An allegation of conduct unbecoming must be proven on balance probabilities.<Ref> | |||
{{CanLIIRC|The Nova Scotia Barristers’ Society v. Rhyno|jgfpj|2019 NSBS 1 (CanLII)}}{{atL|jgfpj|24}} | |||
</ref> | |||
{{Reflist|2}} | {{Reflist|2}} | ||
Revision as of 14:48, 14 February 2024
Offences
Allegations can include:
- professional misconduct[1]
- failing to act with honesty and integrity
- Conduct unbecoming[2]
- incivility
- professional incompetence;
- incapacitated.
- Onus and Burden of Proof
An allegation of conduct unbecoming must be proven on balance probabilities.[3]
- ↑ Batchelor (Re), 2013 LSBC 9 (CanLII), at paras 24 to 30
- ↑ 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.”")
- ↑ The Nova Scotia Barristers’ Society v. Rhyno, 2019 NSBS 1 (CanLII), at para 24
Integrity and Honesty
The term "integrity" does not have an "all-purpose" definition and is more "nebulous."[1]
Generally, integrity is broader than "honesty."[2] It includes "honesty and fair dealing."[3] It is more than the absence of dishonesty or deceit. [4]
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."[5]
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."[6]
- ↑ The Nova Scotia Barristers’ Society v. Christopher Ian Robinson, 2023 NSBS 1 (CanLII), at para 31
- ↑ Robinson, supra at para 32
- ↑
Robinson, supra at para 33
Law Society of Ontario v. Goodman, 2020 ONLSTH 101 (CanLII), at para 25 - ↑ Law Society of Alberta v. Ingimundson, 2014 ABLS 52 (CanLII), at para 48
- ↑ Robinson, supra at para 34
- ↑ Robinson, supra at para 36 The Law Society of Manitoba v Sullivan, 2018 MBLS 9 (CanLII), at para 28
"Good Character"
"Good character" is not generally defined by statute or regluation. 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."[1]
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.[2]
Relevant factors to determine character include:[3]
- the nature and duration of the misconduct;
- whether the applicant is remorseful;
- what rehabilitative efforts, if any, have been taken, and the success of such efforts;
- the applicant’s conduct since the proven misconduct; and
- the passage of time since the misconduct.
- ↑ Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 23
- ↑
Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 27
Preyra, Re, 2000 CanLII 14383 (ON LST) - ↑
Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 29
Alden Birman v. Law Society of Upper Canada, 2005 ONLSHP 6, para. 15
Incivility
The requirements of civility cannot be said to "compromise the lawyer's duty of resolute advocacy."[1]
A lawyer should not be sanctioned just because they took "questionable litigation strategies."[2]
- ↑ Groia v. Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, at para 71
- ↑ Groia, supra at para 85