Complaints, Lawyer Discipline and Public Hearings

Summary of the Decision of the Review Board

APPLICANT 8

Review: January 28, 2016

Review board: Gregory Petrisor, Chair, Ralston S. Alexander, QC, Glenys Blackadder, Craig Ferris, QC, Jamie Maclaren, June Preston and Sandra Weafer

Decision issued: March 22, 2016 (2016 LSBC 12)

Counsel: Gerald Cuttler for the Law Society; Michael Tammen, QC for Applicant 8

BACKGROUND

Applicant 8 was involved with a criminal proceeding in 2013 concerning the alleged assault of his wife and the circumstances surrounding those charges. The proceedings were resolved when the applicant entered into a recognizance that required him to admit there were reasonable grounds to fear that he would cause personal injury to his spouse.

At a credentials hearing into Applicant 8’ s application for enrolment held February 2-5, 2015, a majority of the panel concluded that the applicant does not have such a defect in character that it should prevent him from starting on the road toward becoming a lawyer and granted his application to become enrolled as an articled student. One panel member dissented, stating that the facts and submissions did not inspire confidence that Applicant 8’ s character defects would not resurface when he faces the pressure, conflicts and disagreements that lawyers must routinely cope with in an objective and balanced fashion. (See hearing decision 2015 LSBC 23 and the summary in the Fall 2015 Benchers’ Bulletin.

The Credentials Committee referred the hearing panel’ s decision for a review on the record.

DECISION OF THE REVIEW BOARD

The review board found that the hearing panel erred in failing to recognize the test of character is the same for admission as an articled student as it is for admission as a member of the Law Society. The test for character is identical for applicants regardless of the nature of their application.

The hearing panel majority suggested that the determination of character would come later when the decision of the criminal proceedings was released and when the applicant applies to be admitted to the bar. The postponement of the test for character is not permitted by the law and the Legal Profession Act does not leave room for improvement during articles. The determination of the applicant’ s character must occur at the time of the hearing.

The review board examined the facts to determine if the applicant had met the burden upon him to demonstrate he was a person of good character and repute. The applicant was not entirely candid in his testimony during the divorce proceedings. His apology for the physical altercation, if it did occur, was not consistent with his subsequent conduct in commencing a small claims action within a month or two. His abusive and profane text messages to his wife and his threat to report the wife’ s uncle to the authorities might be considered conduct unbecoming a lawyer. He suggested to his counsel that his true feelings regarding his relationship with his wife be kept confidential until after the criminal proceedings. He was prepared to deceive his wife about the degree of interest he had in repairing the relationship in order to persuade her to soften her approach to the criminal charges he was facing. The evidence showed that the finding made by the hearing panel that the applicant was of good character was not reasonable.

The review board rejected an application by Applicant 8 to admit additional evidence as the decision pertained to February 2015 and there was no probative value in evidence dating from and after July 2015.

The review board determined that the applicant had not met the burden upon him to demonstrate he was of good character. The review board reversed the decision of the majority hearing panel and rejected the application of Applicant 8 for enrolment as an articled student.

2016 LSBC 12 Decision of the Review Board

2015 LSBC 23 Decision on Application for Enrolment