Frequently asked questions

The frequently asked questions provide an overview of the hearing process, which is governed by Part 4 of the Law Society Rules. If you would like more detailed information, please refer to the appropriate rule.

1. How and when is a citation issued?
2. How long is the period before the citation hearing?
3. What happens after the citation is issued and served?
4. What is the hearing process?
5. Does a respondent have a right to counsel?
6. Can a hearing be adjourned?
7. What if the respondent does not attend the hearing?
8. What is a pre-hearing conference and when does it occur?
9. What is a summary hearing?
10. What evidence may be tendered at a hearing?
11. Is there any way to resolve a citation by agreement?
12. Is there any way to resolve a citation without a hearing?
13. What factors are considered in determining the disciplinary action?
14. Are there any costs awarded?
15. Is there any review or appeal process?
16. How do I contact the Hearing Administrator?
17. Is there additional information about the Law Society's discipline function?

1. How and when is a citation issued?

A citation is issued at the direction of the Chair of the Discipline Committee or by any three Benchers (see Rule 4-13). The citation may contain one or more allegations. These allegations set out the conduct which will be inquired into at the hearing. (see Rule 4-14).

The Hearing Administrator for the Law Society will contact counsel for the Law Society and either the respondent or his or her lawyer to arrange a mutually agreeable hearing date. If there is no agreement, the Executive Director will set the date for hearing (see Rule 4-24).

Once a date is determined, the citation will be issued and served on the respondent (see Rule 4-15). A respondent may choose to waive the service requirement by instructing counsel to waive this requirement and accept service on the respondent's behalf.

2. How long is the period before the citation hearing?

The citation hearing will be set for a date at least 30 days after issuance and service of the citation (see Rule 4-15). Often, the date of the hearing is three or more months from the date of issuance and service of the citation. In some circumstances, the citation hearing will occur as a summary hearing (see Rule 4-24.1) and therefore usually will occur within four to eight weeks after issuance and service of the citation.

3. What happens after the citation is issued and served?

Once the citation has been served, counsel for the Law Society will provide disclosure of the evidence (see Rule 4-25). Counsel for the Law Society will usually send a list of all such documentary evidence, along with a copy of each document listed. The time by which this disclosure is sent will vary depending on the complexity of the matter and the number of documents to be disclosed.

4. What is the hearing process?

A citation hearing typically proceeds in two parts. In the first part the Law Society and the respondent tender evidence and make submissions with respect to the allegations set out in the citation. The hearing panel, which is usually comprised of three Benchers, then makes a decision on the facts and may either make adverse determination(s) with respect to the allegation(s), or dismiss the citation (see s. 38 of the Legal Profession Act). The adverse determinations which a panel may make are:

• professional misconduct;

• conduct unbecoming a lawyer;

• a breach of the Act or the Rules; or

• incompetent performance of duties undertaking in the capacity of a lawyer.

If an adverse determination is made, the hearing is reconvened and the Law Society and the respondent may make submissions regarding the appropriate disciplinary action.

5. Does a respondent have a right to counsel?

A respondent is entitled to appear at any hearing with counsel (see s. 43 of the Legal Profession Act). Respondents should consult with counsel. The Law Society provides a list of defence counsel upon request.

6. Can a hearing be adjourned?

A respondent who wishes to adjourn a hearing must make a written application to adjourn in accordance with Rule 4-29. The application must be delivered to the Executive Director (care of the Hearing Administrator). The President or designate will review and decide whether to grant the application.

However, if the hearing has commenced, only the chair of the panel may adjourn the hearing and must adjourn it to a specified date, time and place.

7. What if the respondent does not attend the hearing?

If a respondent does not attend, the hearing may proceed in his or her absence (see s. 42 of the Legal Profession Act).

8. What is a pre-hearing conference and when does it occur?

Pre-hearing conferences are governed by Rule 4-27. A pre-hearing conference will usually be scheduled about one month before the hearing dates and may also be set at the request of the respondent or the discipline counsel. The pre-hearing conference may be held by telephone.

At the pre-hearing conference, the matters which are considered include:

• the simplification of issues;

• the necessity or desirability of amendments to the citation;

• the possibility of obtaining admissions that might facilitate the hearing;

• the discovery or production of documents;, and

• setting a date for the hearing.

9. What is a summary hearing?

The summary hearing process may be used where the allegation(s) in the citation are only that the respondent has done one or more of the following: breached a rule, breached an undertaking given to the Law Society, or failed to respond to a communication from the Law Society. In the summary hearing process, evidence may be tendered by affidavit or an agreed statement of facts, and the hearing panel may consider facts, verdict, penalty and costs and make one decision respecting all aspects of the proceeding.

10. What evidence may be tendered at a hearing?

At the facts and verdict hearing, evidence is usually tendered through viva voce evidence from witnesses. Where there is agreement between Law Society counsel and the respondent (or counsel) as to some or all of underlying facts, evidence may be tendered through an agreed statement of facts. In some circumstances, evidence may be tendered by affidavit.

The Law Society may seek an order that the respondent be required to testify pursuant to s. 41 of the Legal Profession Act.

At the “penalty” part of the hearing, a respondent may tender medical evidence or character evidence, which should be provided to Law Society counsel in advance.

11. Is there any way to resolve a citation by agreement?

A respondent may make a conditional admission and consent to specified disciplinary action, which is subject to approval by both the Discipline Committee and a hearing panel.
The key aspects of a resolution through Rule 4-22 are:

• Rule 4-22 is a conditional admission of a discipline violation and a consent to specified disciplinary action. The respondent must admit the discipline violations set out in the schedule to the citation and sign an agreed statement of facts which contains those admissions and the material facts.

• The specified disciplinary action must be one or more of the disciplinary actions set out in s. 38(5) and (7) of the Legal Profession Act. This proposed disciplinary action must be consistent with the discipline imposed in similar cases.

• The conditional admission and proposed disciplinary action must be approved by the Discipline Committee and if it is, it is then put before a hearing panel in a hearing to either approve or reject it. The hearing panel will make its decision on the basis of the agreed statement of facts, the respondent's admission letter and the applicable case law. If the hearing panel does not accept the 4-22 admission, the matter must proceed to hearing before a different panel at a later date.

• If accepted, the conditional admission and disciplinary action form part of the respondent's professional conduct record and the decision is published.

12. Is there any way to resolve a citation without a hearing?

Subject to approval by the Discipline Committee, a respondent may resolve some or all of the allegations in a citation through a conditional admission made pursuant to Rule 4-21. The key aspects of a resolution through Rule 4-21 are:

• The respondent must admit a discipline violation, which is consistent with allegation(s) set out in the schedule to the citation, which admission and the material facts are set out in an agreed statement of facts.

• This admission of misconduct forms part of the respondent's professional conduct record, and the admission is published (see Rule 4-21(4)(c)).

• The admission is usually accompanied by an undertaking from the respondent to cease being a member of the Law Society and not apply for reinstatement for a specified period of time.

A member who ceases membership may apply for reinstatement, and pursuant to s. 19 of the Legal Profession Act will be required to establish that he or she is a person of good character and repute and fit to become a barrister and solicitor of the Supreme Court.

13. What factors are considered in determining the disciplinary action?

At the "penalty" stage, the hearing panel will determine the appropriate disciplinary action based on the non-exhaustive list of factors set out in Law Society of British Columbia v. Ogilvie [1999] LSBC 17. These factors are:

• the nature and gravity of the conduct proven;

• the age and experience of the respondent;

• the previous character of the respondent, including the respondent's professional conduct record;

• the impact upon the victim;

• the advantage gained, or to be gained, by the respondent;

• the number of times the offending conduct occurred;

• 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;

• the possibility of remediating or rehabilitating the respondent;

• the impact upon the respondent of criminal or other sanctions or penalties;

• the impact of the proposed penalty on the respondent;

• the need for specific and general deterrence;

• the need to ensure the public's confidence in the integrity of the profession; and

• the range of penalties imposed in similar cases.

14. Are there any costs awarded?

A hearing panel may order that a respondent pay the costs of a hearing, and may set the time for payment (see Rule 5-9). If the citation is dismissed, the panel may order that the respondent be awarded costs.

The costs which may be awarded must be reasonable. In determining the amount of costs which is reasonable, the panel may consider the following factors set out in Law Society of British Columbia v. Racette, 2006 LSBC 29:

• the seriousness of the offence;

• the financial circumstances of the respondent;

• the total effect of the penalty, including possible fines and/or suspension;

• the extent to which the conduct of each of the parties has resulted in costs accumulating, or conversely, being saved.

15. Is there any review or appeal process?

There is a right of review of a decision to the Benchers, pursuant to s. 47 of the Act. A review must be initiated within 30 days, in accordance with Rules 5-13 to 5-15.
As well, a respondent who is affected by a decision, determination or order of a hearing panel or the Benchers may appeal to the Court of Appeal (see s. 48 of the Legal Profession Act), within the time limits set out in the Court of Appeal Act.

16. How do I contact the Hearing Administrator?

The Hearing Administrator, Michelle Robertson, may be contacted by phone at 604-443-5753, by fax at 604-646-5919 or by email.

17. Is there additional information about the Law Society's discipline function?

Additional information is available on the Law Society's website. Decisions published since mid-2003 are posted here, on CanLii and on Lexis-Nexis. Decisions prior to 2003 may be obtained from Lexis-Nexis.