Legal Profession Regulation

From Criminal Law Notebook
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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.”")

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

Procedure

Where procedures are not set by statute, regulations, or precedent, a Tribunal may adopt "by analogy" rules prescribed from a criminal law context.[1]

Adjournments

There are factors to consider for an adjournment:[2]

  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: [3]

  • 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. ↑ Law Society of Ontario v. Odeleye, 2019 ONLSTH 42 (CanLII), {{{3}}}, at para 21 ("The Tribunal has adopted by analogy the rules that are prescribed in the criminal law context.")
    Law Society of Upper Canada v. Watson, 2012 ONLSHP 174
    Law Society of Upper Canada v. Talarico, 2012 ONLSHP 59
    Law Society of Upper Canada v. Resetar, 2015 ONLSTH 103
  2. ↑ 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):...")
  3. ↑ 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]

37 (1) A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.

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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)

Production of Records

A panel may order disclosure of records held by third parties. The requirements to make such an order, which were adopted from the criminal law, consist of:[1]

  1. first, the panel should ask whether the records sought by the licensee are “likely relevant” to the matters at issue in the conduct application, and production is necessary in the interests of justice;
  2. if that requirement is met, the panel should order the third party to disclose those records to it;
  3. the panel must then decide whether the documents should be produced to the licensee. To do so, the panel must balance the licensee’s right to respond to the conduct allegations against the privacy interests of the third party.
  1. ↑ LSO v Campisi and Murray, 2023 ONLSTH 137 (CanLII), at para 31
    Law Society of Ontario v Odeleye, 2019 ONLSTH 42 (CanLII)

Sentencing

See Also

Databases
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