Legal Profession Offences

Offences

Allegations can include:

• professional misconduct
  • failing to act with honesty and integrity
• Conduct unbecoming
• incivility
• professional incompetence;
• incapacitated.

Onus and Burden of Proof

An allegation of conduct unbecoming must be proven on balance probabilities.

Professional Misconduct

Professional misconduct requires that the member's "behaviour displays culpability with is grounded in a fundamnetal degree of fault" and whether it displays "gross culpable neglect of his duties as a lawyer."

The test requires an objective assessment that there is a "marked departure" in culpability.<rfe> Sangha, supra at para 67
Martin, supra at para 171
Lawyer 12 (Re), 2011 LSBC 35 (CanLII), <https://canlii.ca/t/fpbr0 </ref> It has also been characterized as requiring something "outside the permissible bounds."

Factors to consider include:

• gravity of the misconduct;
• its duration;
• number of breaches;
• presence or abscence of mala fides;
• the harm caused by the conduct

No single factor should be determinative.

The offence cannot be made out merely by error on the part of the lawyer.

Even the use of profane language can constitute professional misconduct.

Burden and standard of proof

The onus is upon the society to prove the conduct constitutes misconduct on a balance of probabilitites.

Integrity and Honesty

The term "integrity" does not have an "all-purpose" definition and is more "nebulous."

Generally, integrity is broader than "honesty." It includes "honesty and fair dealing." It is more than the absence of dishonesty or deceit.

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."

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."

"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."

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.

Relevant factors to determine character include:

1. the nature and duration of the misconduct;
2. whether the applicant is remorseful;
3. what rehabilitative efforts, if any, have been taken, and the success of such efforts;
4. the applicant’s conduct since the proven misconduct; and
5. the passage of time since the misconduct.

Incivility

The requirements of civility cannot be said to "compromise the lawyer's duty of resolute advocacy."

A lawyer should not be sanctioned just because they took "questionable litigation strategies."