Law Society

The Lawyer and the Law Society

Compiled by Eric B. Appleby:

Overview

The practicing lawyer is required to follow the rules and guidelines of the law societies. The practicing lawyer must be especially careful when handling a client’s money. Some law societies have enacted detailed rules respecting client’s funds in trust accounts and the handling of large sums received from clients. The law societies are also empowered to determine what constitutes professional misconduct.

Powers of law societies

In the case of First Canadian Title Co. v. Law Society of British Columbia, [2004] B.C.T.C. 197 (S.C.), the court stated at paras. 21 and 22: [21] “In this province, the legal profession is self-governed. In s. 3 of the Legal Profession Act the Legislature entrusted to the Law Society, not to the courts, the responsibility of regulating and supervising the professional conduct of its members. The Law Society fulfills that mandate by establishing standards and by regulating the practice of law, and it contends that, as the profession’s governing body, it must insist upon the adherence of its members to a common denominator of good conduct that satisfies its own standards as well as the demands of the clients and the community which the profession serves.

[22] In Young v. Young (1990), 50 B.C.L.R. (2d) 1 (C.A.), Cumming J.A., observed, at p. 68: This court has recognized that the benchers are responsible for determining what is, and what is not, professional misconduct, and has held that the courts ought to be reluctant to interfere in that determination.

In the case of Klein and Dvorak v. Law Society of Upper Canada (1985), 8 O.A.C. 161 (Div. Ct.), the issue were about Lawyer-press relations – The Ontario Divisional Court held that the Law Society of Upper Canada had no right to prohibit lawyers from initiating contact with news media, because Rule 13, commentary 18 of the Rules of Professional Conduct was of no force and effect as contravening the right to freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms – See paragraphs 43 to 48.

In the case of Stewart, McKelvey v. Nova Scotia Barristers Society (2005), 236 N.S.R.(2d) 327; 749 A.P.R. 327 (S.C.), the Complaints Investigation Committee (CIC) of the Nova Scotia Barristers’ Society subpoenaed documents from a lawyer – At issue was whether the CIC was entitled to access documents which were or might be subject to solicitor-client privilege where the client had objected to the lawyer, or law firm, disclosing privileged documents to the CIC – The Nova Scotia Supreme Court held that the lawyer was obliged to provide the material and in so doing was deemed not to have breached any privilege of his client (Legal Professions Act, ss. 77(1), 77(3) and 77(4)) – If there were gaps in the legislation, public policy considerations required that the information requested had to be provided so as to allow the Society to continue its investigation – The duty to provide the requested information was inherent in the solicitor’s obligation to self report and provide information necessary to conduct the type of investigation required to maintain public confidence and to allow the Society to fulfill its purpose as set out in the legislation.

Discipline

In the case of Rowenbaum v. Manitoba Law Society (1983), 25 Man.R.(2d) 154 (C.A.), about the Jurisdiction of disciplinary body – The Manitoba Court of Appeal affirmed that the Law Society of Manitoba had jurisdiction to decide if a lawyer was guilty of professional misconduct where the lawyer, as a defendant in another action, lied to the court – See paragraph 1.

In the case of Krieger et al. v. Law Society of Alberta (2002), 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275 (S.C.C.), the headnote stated: Jurisdiction of disciplinary body – The prosecutor in a murder case failed to disclose relevant information – The accused filed a complaint with the Law Society – The prosecutor challenged the Society’s jurisdiction – The Supreme Court of Canada held that the Law Society had jurisdiction to review an allegation that a prosecutor acted dishonestly or in bad faith in failing to disclose information – The province had jurisdiction to regulate the legal profession (Constitution Act, 1867, s. 92(13) (property and civil rights)) – Since prosecutors must be members of the Law Society, they were subject to the Society’s Code of Professional Conduct – The court stated that all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but, rather, is a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information – See paragraphs 1 to 60.

In the case of Pearlman v. Manitoba Law Society Judicial Committee (1991), 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81 (S.C.C.), about the Jurisdiction of disciplinary body – A lawyer who owned several houses in Winnipeg was ordered by the City to make repairs – The lawyer wrote a number of letters to a city building inspector threatening both civil and criminal action – He also warned the inspector to stay off his property – In a related court action the solicitor was ordered to pay $1,500 in costs to the building inspector, but refused to do so – The Supreme Court of Canada affirmed that the Law Society had jurisdiction to determine whether the solicitor’s actions constituted conduct unbecoming a solicitor – See paragraph 25.

In the case of Trumbley and Pugh et al. v. Toronto Police Force et al. (1986), 15 O.A.C. 279 (C.A.), the headnote stated: The Ontario Court of Appeal commented that the rights guaranteed by s. 11 of the Charter did not apply to discipline proceedings under the Law Society Act (Ont.), because a person charged with a disciplinary offence is not charged with an offence within the meaning of s. 11 of the Charter – See paragraph 77.

Professional misconduct defined

In the case of Yake v. Law Society of Alberta (1997), 209 A.R. 59; 160 W.A.C. 59 (C.A.), Yake represented a client respecting her motor vehicle accident claim – His client disagreed with a portion of her doctor’s medical/legal report – Yake removed a paragraph from the report before forwarding it to the defendant’s insurer – The Hearing Committee of the Law Society of Alberta found Yake guilty of professional misconduct – The Benchers of the Law Society upheld the finding, but reduced the penalty from a four month suspension to a two month suspension – Yake appealed the finding and the sentence – The Alberta Court of Appeal dismissed the appeal.

In the case of Law Society of British Columbia v. Heringa (2004), 195 B.C.A.C. 198; 319 W.A.C. 198 (C.A.), a lawyer failed for five years to comply with an undertaking to discharge a mortgage from the title of property purchased by his clients – The British Columbia Court of Appeal affirmed that the lawyer was guilty of professional misconduct – The court affirmed that undertakings were solemn promises to be accorded the most urgent and diligent attention – The lawyer’s cavalier attitude toward the fulfilment of his undertaking obligation had no place in the practice of law.

In the case of Law Society of British Columbia v. Ewachniuk (2003), 181 B.C.A.C. 110; 298 W.A.C. 110 (C.A.), a hearing panel appointed by the Discipline Committee of the Law Society found a lawyer guilty of professional misconduct in (1) attempting to intimidate and in actually intimidating two American witnesses from giving evidence at a B.C. trial, and (2) requesting Crown counsel to lay charges against these witnesses to prevent them from coming to Canada to give evidence – The British Columbia Court of Appeal affirmed the finding, stating that the panel’s findings were not unreasonable, contrary to the overwhelming weight of the evidence or based on an erroneous assumption or inference – See paragraphs 23 to 32.

In the case of Harris v. Nova Scotia Barristers Society (2004), 228 N.S.R.(2d) 153; 723 A.P.R. 153 (C.A.), an adjudicative hearing panel of the Discipline Committee of the Nova Scotia Barristers’ Society found Harris guilty of professional misconduct for (1) failing to prepare monthly trust reconciliations, maintain adequate books of original entry, maintain a chronological file of copies of billings and file a required Form 20 on time contrary to the Society’s trust account regulations and (2) demonstrating a continued reckless disregard of the Society’s trust account regulations – The panel reprimanded Harris for professional misconduct – There was no suggestion that she had misappropriated money from her trust account – The Nova Scotia Court of Appeal refused to interfere with the panel’s finding – See paragraphs 139 to 161.

In the case of Ayres v. Nova Scotia Barristers’ Society (1998), 169 N.S.R.(2d) 315; 508 A.P.R. 315 (C.A.), a lawyer was found guilty of professional misconduct by the Nova Scotia Barristers’ Society for (1) making disparaging and abusive remarks about other lawyers; (2) surreptitiously tape-recording a client conversation; (3) charging clients unreasonable and excessive fees; (4) seeking business in a manner contrary to the public interest and integrity and dignity of the profession; and (5) attempting to dissuade a client, a material witness under subpoena, from testifying against her – The penalty imposed was suspension from practice for a minimum of six months or until the lawyer was adjudged medically and psychologically fit to practise, payment of $100,000 towards the cost of the inquiry and the taking of two professional training courses in skills training and responsibilities – Nonpayment of the costs order would result in disbarment – The Nova Scotia Court of Appeal dismissed the lawyer’s appeal against the finding of professional misconduct and the penalty imposed – Absent an error of law on the face of the record or a breach of the rules of natural justice, the court could not interfere with the self-governing body’s disciplinary decision.

In the case of Nova Scotia Barristers’ Society v. Saunders (1982), 55 N.S.R.(2d) 1; 114 A.P.R. 1 (C.A.), the Nova Scotia Court of Appeal affirmed a decision that a lawyer’s failure to respond to the Barristers’ Society’s correspondence regarding complaints against the lawyer, constituted professional misconduct or conduct unbecoming a barrister – See paragraphs 1 to 3. In the case of Spring v. Law Society of Upper Canada (1988), 28 O.A.C. 375 (Div. Ct.), the headnote stated: The Ontario Divisional Court affirmed the disbarment of a lawyer for professional misconduct and conduct unbecoming a solicitor, where the lawyer lied to or misled clients, other solicitors and the Law Society’s auditor, misapplied mortgage funds and swore falsely in an affidavit and in oral testimony – See paragraphs 16 to 17.

In the case of Adams v. Law Society of Alberta (2000), 266 A.R. 157; 228 W.A.C. 157 (C.A.), the Hearing Committee of the Law Society of Alberta disbarred Adams after his conviction for sexual exploitation of his 16-year- old client – The Benchers of the Law Society affirmed the decision – Adams appealed – He argued that the Hearing Committee over- emphasized the harm to the reputation of the legal profession; failed to accord sufficient weight to good character evidence; erred in rejecting expert evidence as to the risk of Adams’ re- offending; erred in relying on aggravating factors that were not proven; and finally, imposed a penalty that was a marked departure from penalties imposed on similar offenders for similar offences, and was manifestly unreasonable – The Alberta Court of Appeal dismissed the appeal.

In the case of Adams v. Law Society of Alberta (1988), 88 A.R. 313 (C.A.), the headnote stated: A lawyer was found guilty of four charges of conduct unbecoming a barrister and solicitor – The Law Society rejected the lawyer’s submission that the misconduct was caused by incompetence – Therefore, disbarment was a possible disciplinary penalty – The lawyer deliberately deceived a client by forging a letter, preparing a document purporting to be a Federal Court order, affixing a Federal Court of Canada seal to the document, and lying to the disciplinary committee by blaming a secretary – The Alberta Court of Appeal affirmed the penalty of disbarment, where the misconduct was a serious affront to the integrity of the profession and the rights of clients.

In the case of Chopra v. Law Society of Alberta (1988), 88 A.R. 312 (C.A.), the headnote stated: A lawyer swore and filed a false affidavit on an appeal from a taxation of an account – The Alberta Court of Appeal affirmed the Law Society’s imposition of a 30 day suspension plus an order requiring the lawyer to pay the $3,500.00 costs of the disciplinary hearing.

In the case of Segal v. Law Society of Saskatchewan (1999), 189 Sask.R. 134; 216 W.A.C. 134 (C.A.), the Discipline Committee of the Law Society of Saskatchewan found Segal guilty of conduct unbecoming a lawyer – The Committee ordered that Segal be suspended for 45 days with respect to a client entering into an unfair contingency agreement under duress and suspended for 15 days for two complaints of intentionally misleading other persons – The 15 day suspensions were concurrent to each other, but consecutive to the 45 day suspension – He also received a reprimand for attempting to have a discipline charge withdrawn – Segal was also ordered to pay the costs of the hearing – The Saskatchewan Court of Appeal affirmed the sanctions, but reduced the amount of costs that Segal was ordered to pay.

In the case of Wasylyshen v. Law Society of Saskatchewan (1985), 39 Sask.R. 187 (C.A.), a lawyer represented to the law society that a client’s trust account which was debited or overdrawn had been corrected when in fact such was not done until later – The lawyer could have, but did not, promptly advise the society of the misinformation – The Saskat-chewan Court of Appeal affirmed, inter alia, a two- month suspension from practice – See paragraphs 11 to 15.

In the case of MacIsaac, Re (1983), 22 Sask.R. 10 (C.A.), a lawyer received monies in trust on the condition that he would immediately pay the arrears owing on a mortgage – He failed to do so, indirectly because of his interest in the property – The Saskatchewan Court of Appeal affirmed the lawyer’s 30 day suspension from practice for professional misconduct – See paragraphs 21 to 24.

In the case of Lamontagne v. Law Society of Saskatchewan (1991), 89 Sask.R. 219 (C.A.), the discipline committee of the Law Society made 11 allegations of conduct unbecoming against a lawyer – Allegations included trust account violations, violation of a trust condition, professional discourtesy, failure to pay for professional services – Accused admitted to the allegations – He admitted addiction to drugs and alcohol and voluntarily entered a rehabilitation program – Nine months’ suspension pending hearing – The discipline committee suspended him for two years’ followed by two years’ probation – The Saskatchewan Court of Appeal reduced suspension to one year and varied conditions of probation – See paragraphs 4 to 16.

In the case of Hatfield v. Nova Scotia Barrister Society (1978), 30 N.S.R.(2d) 386; 49 A.P.R. 386 (C.A.), a lawyer improperly used trust funds in breach of the Barristers and Solicitors Act Regulations – The Nova Scotia Court of Appeal affirmed the imposition of a fine of $1,000 – See paragraphs 26, 61 and 69.

Law society rules, guidelines, etc.

In the case of Bank of Monteal v. Dresler (2002), 253 N.B.R.(2d) 37; 660 A.P.R. 37 (C.A.), the New Brunswick Court of Appeal stated that It is important to recognize that the courts are not bound by the Law Society’s rules and guidelines, no matter how clearly worded. It remains the prerogative of the former to exercise their supervisory (common law) jurisdiction in a manner inconsistent with a law society standard or rule. … such rules do not have the same legal effect as a statute or regulation. – However, the court also recognized that the Supreme Court of Canada had stated that rules set by a professional body are of guiding importance in determining the nature of the duties flowing from a particular professional relationship – See paragraphs 45 to 47.