Hearings are usually in two parts
Part 1: Facts and determination
The purpose of the first phase is to consider the allegations in the citation and determine if the lawyer has in fact committed a discipline violation. The onus is on the Law Society to prove the allegations. After the hearing is over, a written decision is issued outlining the findings of facts and the decision of the panel.
If the hearing panel finds the allegations have not been proven, the citation will be dismissed. Otherwise, the hearing panel will find the lawyer committed one or more of the following:
- professional misconduct,
- conduct unbecoming a lawyer,
- a breach of the Legal Profession Act or the Law Society Rules, or
- incompetent performance of duties undertaken in the capacity of a lawyer.
Part 2: Disciplinary action
If necessary, a second hearing will be held to determine the appropriate disciplinary sanction. As with the first phase, a written decision will be issued and made public. The panel may consider a number of factors, including the following:
- the nature and gravity of the conduct proven;
- the age and experience of the lawyer;
- the previous character of the lawyer, including the lawyer's professional conduct record;
- the impact upon the victim;
- any advantage gained, or to be gained, by the lawyer;
- the number of times the offending conduct occurred;
- whether the lawyer 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 lawyer;
- the impact of the proposed disciplinary action on the lawyer;
- the impact upon the lawyer of any sanctions or penalties outside of the Law Society’s jurisdiction;
- the need for specific and general deterrence;
- the need to ensure the public's confidence in the integrity of the profession;
- the range of sanctions imposed in similar cases.
The possible sanctions for a lawyer who has committed a discipline violation may include:
- a reprimand;
- a fine not exceeding $50,000;
- the placement of conditions or restrictions on the lawyer's practice;
- a suspension from the practice of law or from practice in one or more fields of law (with or without conditions) for a specified period of time;
- disbarment.
Sometimes the panel will decide that the lawyer must pay some of the costs of the hearings, in accordance with an established tariff. The panel may also consider:
- the seriousness of the violation;
- the financial circumstances of the lawyer;
- the total effect of the sanction, 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.
What happens if a lawyer admits the misconduct prior to the hearing?
Sometimes a lawyer may choose to admit to the discipline violation before the hearing proceeds. If the admission is made and the lawyer’s membership has or will be terminated, it is considered by the Discipline Committee. If the committee accepts the admission, a summary of the circumstances will be published and the hearing will be cancelled.
If the lawyer admits the discipline violation and proposes a sanction, it is first considered by the Discipline Committee. If the committee accepts the proposal, it then proceeds to a hearing for a panel to make the decision on the proposal. The hearing panel will make its decision based on the agreed statement of facts, the lawyer’s admission letter and the applicable case law. If the hearing panel does not accept the admission, the matter must go to hearing with a different panel at a later date.
In either case, if accepted, the admission and any disciplinary action imposed form part of the lawyer’s professional conduct record and the decision is published.
Abeyance Policy
In certain circumstances, a lawyer under investigation may request that the Discipline Committee hold the investigation and the committee's disposition in abeyance. In considering these requests, the Discipline Committee is guided by the Abeyance Policy adopted by the Benchers in September 2010.
Adjourning a hearing
Before a hearing begins, the lawyer or discipline counsel can apply in writing to adjourn the hearing. A Bencher appointed by the Law Society president will decide whether to allow the application. Once the hearing has started, only the chair of the panel may adjourn the hearing.
Pre-hearing conferences
A pre-hearing conference may be scheduled at the request of discipline counsel, the lawyer or the lawyer’s counsel, or on the president’s own initiative. It is usually held by tele-conference
The purpose of the conference is to assist with case management, including to:
- simplify the issues so that the hearing will proceed smoothly;
- discuss the need for any changes to the citation;
- address the possibility of the lawyer admitting to any of the allegations;
- ensure all documents are available;
- set a date for the hearing to begin;
- discuss any other matters that may aid the proceedings.
The Bencher conducting the pre-hearing conference may make appropriate orders on preliminary matters.
Summary hearings
Summary hearings are used when the alleged misconduct concerns one or more of the following:
- breach of a Law Society rule;
- breach of an undertaking given to the Law Society;
- failure to respond to a communication from the Law Society;
- breach of an order of the Law Society.
In these cases, the hearing panel may make a decision on all aspects of the case so that the hearing is not divided into two phases, and decisions on the facts, determination and disciplinary action are made in one hearing, resulting in one written decision.