Sentencing for 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."

The objectives of a penalty include:

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.

Factors

Factors to consider on penalty include:

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:

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.

Penalties

• Legal Profession Offences (Sentencing Cases)

Costs

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

Factors to consider for costs include:

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.”