Professions and Occupations – Lawyers – Discipline – Appeal
Professions and Occupations – Lawyers – Discipline – Progressive Discipline
Professions and Occupations – Lawyers – Discipline – Sanctions
The appellant appealed the committee decision imposing a six-month suspension from the practice of law, a fine of $40,000, and assessed costs of $1,865. The committee decision was a result of the appellant pleading guilty to a charge of conduct unbecoming a lawyer. The appellant had a lengthy disciplinary history. The charge that the appellant pled guilty to was the result of him not filing reporting forms with the Law Society for the year ending December 31, 2015. When the forms were not submitted by August 29, 2016, and after ample correspondence and numerous time extensions, the auditor reported the matter to complaints counsel. The appellant did respond to the requests satisfactorily on September 29, 2016. The Conduct Investigation Committee concluded that a lengthy suspension and significant fine were required due to the appellant’s lengthy disciplinary history and his consistent downplaying of the seriousness of his conduct. The appellant indicated that he had prioritized a major piece of litigation ahead of the “routine correspondence” of the Law Society. He argued that a suspension would be unnecessarily harsh because there was nothing wrong with his trust accounts, his response to the Law Society was just delayed. The committee agreed with the Conduct Investigation Committee. The appellant argued that that committee imposed an unreasonably high penalty because: 1) it failed to consider mitigating factors; 2) it failed to adhere to the principle of progressive discipline; and 3) it improperly considered an earlier penalty for a similar offence he had committed. The appellant also argued that less deference should be given to the committee’s decision because there were non-Benchers on the committee.
HELD: The appeal was dismissed. The appellant’s arguments were discussed as follows: 1) the appellant argued that his guilty plea and the agreed statement of facts should have been considered mitigating factors. The appeal court agreed that the mitigating factors needed to be considered but found that only a view of the committee decision that was too narrow would find they were not considered. The committee did not agree that the guilty plea and agreed statement of facts were as mitigating as the appellant argued due to the appellant’s history of non-compliance. The court also noted that mitigating factors do not carry as much weight in professional disciplinary sentencing as they do in criminal sentencing; 2) the appellant argued that it was inappropriate to consider his 2017 sentencing because the penalty was imposed after the conduct of the current offence took place and before a penalty was imposed for the current offence. The appellant said that he had no opportunity to learn from the 2017 mistake. He argued that the 2013 sentencing, which was much less severe than that in 2017, should have been used to consider a progressive penalty. The 2017 conduct was relevant to express the committee’s pessimism that anything less than a significant sanction would cause the appellant to change. The 2017 matter would not have been his first opportunity to learn from his mistakes: he had ample opportunity given his numerous previous charges. The court determined that the committee could consider the 2017 sanction; it did not err in the application of the principle of progressive discipline; and 3) the committee rejected the appellant’s argument that the offence was minor. The court found that a significant penalty was warranted given the appellant’s continued disregard for the Law Society’s authority. The penalty was not unreasonable. The appellant argued that the committee should be more closely reviewed because it was composed of persons who were not Benchers or practicing lawyers, so they had less expertise in the area of the legal profession. The court found that the complaint had nothing that required a practicing lawyer to determine. The court did not find that the Ryan case supported the appellant, as he argued it did.