Legal Profession Offences: Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
Tag: wikieditor
Tag: wikieditor
Line 26: Line 26:
</ref>
</ref>


The test requires an objective assessment that there is a "marked departure" in culpability.<rfe>
The test requires that there is a "marked departure" in culpability.<rfe>
{{supra1|Sangha}} at para 67<Br>
{{supra1|Sangha}} at para 67<Br>
{{supra1|Martin}} at para 171<br>
{{supra1|Martin}} at para 171<br>
Lawyer 12 (Re), 2011 LSBC 35 (CanLII), <https://canlii.ca/t/fpbr0
Lawyer 12 (Re), 2011 LSBC 35 (CanLII), <https://canlii.ca/t/fpbr0 ("In my view, the pith and substance of these various decisions displays a consistent application of a clear principle.  The focus must be on the circumstances of the Respondent’s conduct and whether that conduct falls markedly below the standard expected of its members.")
</ref>
</ref>
It has also been characterized as requiring something "outside the permissible bounds."
It has also been characterized as requiring something "outside the permissible bounds."
<ref>
<ref>
Stevens [v. Law Society (Upper Canada), (1979), 1979 CanLII 1749 (ON SC), 55 OR (2d) 405 (Div. Ct.)
Stevens [v. Law Society (Upper Canada), (1979), 1979 CanLII 1749 (ON SC), 55 OR (2d) 405 (Div. Ct.)
</ref>
The test is strictly objective and should not include any subjective assesmsent.<ref>
{{supra1|Sangha}} at praa 67<br>
Kim (Re), 2019 LSBC 43 (CanLII), at para 45, <https://canlii.ca/t/j3svb#par45>, retrieved on 2024-02-14
</ref>
It is not necessary that the conduct be "disgraceful or dishonourable."<ref>
Edwards (Re), 2020 LSBC 21 (CanLII), at para 44, <https://canlii.ca/t/j8gsr#par44>, retrieved on 2024-02-14<br>
{{supra1|Martin}} ("The real question to be determined is essentially whether the Respondent’s behaviour displays culpability which is grounded in a fundamental degree of fault, that is whether it displays gross culpable neglect of his duties as a lawyer.")
</ref>
</ref>


Line 70: Line 80:


{{reflist|2}}
{{reflist|2}}
===Integrity and Honesty===
===Integrity and Honesty===


Revision as of 21:04, 14 February 2024

Offences

See also: Legal Profession Regulation

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]

  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.”")
  3. ↑ The Nova Scotia Barristers’ Society v. Rhyno, 2019 NSBS 1 (CanLII), at para 24

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."[1]

The test requires 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 ("In my view, the pith and substance of these various decisions displays a consistent application of a clear principle. The focus must be on the circumstances of the Respondent’s conduct and whether that conduct falls markedly below the standard expected of its members.") </ref> It has also been characterized as requiring something "outside the permissible bounds." [2]

The test is strictly objective and should not include any subjective assesmsent.[3]

It is not necessary that the conduct be "disgraceful or dishonourable."[4]

Factors to consider include:[5]

  • 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.[6]

The offence cannot be made out merely by error on the part of the lawyer.[7]

Even the use of profane language can constitute professional misconduct.[8]

Burden and standard of proof

The onus is upon the society to prove the conduct constitutes misconduct on a balance of probabilitites.[9]

  1. ↑ Martin, Re, 2005 LSBC 16 (CanLII), at para 154, <https://canlii.ca/t/1ln4b#par154>, retrieved on 2024-02-14 Sangha (Re), 2020 LSBC 3 (CanLII), at para 65, <https://canlii.ca/t/jrjk5#par65>, retrieved on 2024-02-14
  2. ↑ Stevens [v. Law Society (Upper Canada), (1979), 1979 CanLII 1749 (ON SC), 55 OR (2d) 405 (Div. Ct.)
  3. ↑ Sangha, supra at praa 67
    Kim (Re), 2019 LSBC 43 (CanLII), at para 45, <https://canlii.ca/t/j3svb#par45>, retrieved on 2024-02-14
  4. ↑ Edwards (Re), 2020 LSBC 21 (CanLII), at para 44, <https://canlii.ca/t/j8gsr#par44>, retrieved on 2024-02-14
    Martin, supra ("The real question to be determined is essentially whether the Respondent’s behaviour displays culpability which is grounded in a fundamental degree of fault, that is whether it displays gross culpable neglect of his duties as a lawyer.")
  5. ↑ Vlug (Re), 2018 LSBC 26 (CanLII), at para 115, <https://canlii.ca/t/hv8kf#par115>, retrieved on 2024-02-14
    Sangha, supra at para 68
    Lyons (Re), 2008 LSBC 9 (CanLII), <https://canlii.ca/t/1wbpn
  6. ↑ Sangha, supra at para 68
    Boles (Re), 2016 LSBC 48 (CanLII), at para 56, <https://canlii.ca/t/jrjm4#par56>, retrieved on 2024-02-14 Harding (Re), 2014 LSBC 52 (CanLII), at para 78, <https://canlii.ca/t/gf7kj#par78>, retrieved on 2024-02-14
  7. ↑ Boles at para 57
    Lawyer 10 (Re), 2010 LSBC 2 (CanLII), <https://canlii.ca/t/28k12
  8. ↑ Johnson (Re), 2014 LSBC 8 (CanLII), <https://canlii.ca/t/g469v
    Lang (Re), 2022 LSBC 4 (CanLII), at para 24, <https://canlii.ca/t/jm1f1#par24>, retrieved on 2024-02-14
  9. ↑ Lang (Re), 2022 LSBC 4 (CanLII), at para 17, <https://canlii.ca/t/jm1f1#par17>, retrieved on 2024-02-14
    Foo v. Law Society of British Columbia, 2017 BCCA 151 (CanLII), <https://canlii.ca/t/h34sv>

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]

  1. ↑ The Nova Scotia Barristers’ Society v. Christopher Ian Robinson, 2023 NSBS 1 (CanLII), at para 31
  2. ↑ Robinson, supra at para 32
  3. ↑ Robinson, supra at para 33
    Law Society of Ontario v. Goodman, 2020 ONLSTH 101 (CanLII), at para 25
  4. ↑ Law Society of Alberta v. Ingimundson, 2014 ABLS 52 (CanLII), at para 48
  5. ↑ Robinson, supra at para 34
  6. ↑ 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]

  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.
  1. ↑ Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 23
  2. ↑ Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 (CanLII), at para 27
    Preyra, Re, 2000 CanLII 14383 (ON LST)
  3. ↑ 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]


  1. ↑ Groia v. Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, at para 71
  2. ↑ Groia, supra at para 85
Retrieved from "https://criminalnotebook.ca/index.php?title=Legal_Profession_Offences&oldid=90916"