[24] The two offences of which Mr. Zoraik was convicted appear in the Criminal Code under the heading "Offences Against the Administration of Law and Justice" and the subheading "misleading justice". The conduct embraced by them is proscribed because it is considered to constitute an attack on the integrity of our system of justice. The proper administration of justice depends upon courts being able not merely to accept those who appear as counsel as honourable people of integrity but also to rely upon those qualities being reflected in their conduct. Judges are not in a position to undertake independent enquiries into the facts and issues of cases that require judicial determination. They lack the staff, the financial resources, the knowledge or the skills to make or to order their own enquiries about the matters they need to decide cases. It is neither efficient nor, having regard to the principles of the adversary system, proper for them to perform such tasks for themselves.
[25] Lawyers are of course in a position of trust in relation to their clients. Of necessity they are also, and for the reasons indicated, in a position of trust in relation to the court and to the administration of justice as a whole. Judges need to be confident about what they are told by lawyers on behalf of their clients. For such a system to work, and for the public to have confidence that it is working properly, lawyers must uphold the law and its proper administration. Failure to do so subverts public confidence in the judicial system.[16]
[26] It is not surprising that these ideas and concerns are reflected in the codes of conduct that the Law Society has adopted as the framework within which lawyers not merely do but are expected to do their work. For example, as if it were necessary, Rule 2.1-2(c) of the Code of Professional Conduct for British Columbia says, among other things, that "a lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts or law,"[17] and Rule 2.1-3(e), while affirming that "[a] lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law," specifically emphasizes that "this great trust is to be performed within and not without the bounds of the law." That is central to the lawyer’s role in the system for the administration of justice and, we do not think it extravagant to assert, to the public’s confidence in that system and the integrity of the legal profession. To perform that role corruptly, as Mr. Zoraik did in this case, is subversive.
[27] The efforts of counsel in this case have yielded but a handful of cases[18] in Canada involving lawyers who attempted to pervert the administration of justice in ways even remotely comparable to what Mr. Zoraik did here. The fact that there are so few cases is eloquent testimony to the widespread recognition among lawyers of the critical role that they play in the administration of justice, the acceptance by the legal profession of the principles involved, the importance in the public interest of observing them and the consequences to public confidence in the system and the legal profession of a failure to do so. Had these proceedings been initiated by the issuance of a citation we have little doubt that it would have alleged "professional misconduct", i.e. conduct that represents "a marked departure from that which the Law Society expects of its members" [19] or that, on the undisputed facts, a finding to that effect would be warranted.[20]
[28] In three of the small number of similar cases to which we were referred,[21] the lawyer was disbarred; in two[22] of them the lawyer was suspended for a period in view of certain mitigating considerations, and in one of them, Cruikshank, the lawyer, who stood by while his client made a statement to the police that the lawyer knew to be untrue but which he quickly took steps to repair, was fined.[23]
[29] The precedents, such as they are, provide authority for either a suspension or a disbarment in circumstances such as these. Weighing the varied considerations that led hearing panels to choose one form of sanction rather than another, is difficult. Mr. Zoraik has drawn to our attention several factors described as having a mitigating or "palliative" significance. They include such matters as that Mr. Zoraik had practised for a mere seven years when he committed the offences; that, aside from the convictions, he has an unblemished record; that his misconduct was an isolated act; that he and his family have suffered sustained humiliation and economic "devastation"; that the criminal penalty imposed upon him – a jail sentence of 18 months, during the first six of which he was under house arrest and for the remainder of which he was subject to a curfew – has achieved all that is required in terms of specific and general deterrence.
[30] Many of these factors were addressed by the Provincial Court judge in his reasons for sentence. What is conspicuously absent from the list, however, is anything that explains or justifies the misconduct itself and we can think of none. In MacIver, (supra), the Panel said[24]: "[T]here is no acknowledgment of wrongdoing or repentance by the Member. The Member’s submission before this Panel of Benchers was devoid of any explanation, mitigating circumstances or remorse" regarding the commission of the offences and[25] that the member’s plea of mitigation "rests upon factors that are either incidental, [e.g. age, infirmity and reputation] or consequential [e.g. financial distress, embarrassment]" to the offences. Those observations are apposite here.
[31] The MacIver Panel concluded, as we do here, that "disbarment under these circumstances is neither harsh nor excessive."[26] All of the considerations that should guide us lead us to order that Mr. Zoraik be disbarred, and we so order.
[1] On June 16, 2010, two days after being convicted, the Respondent gave a written undertaking to the Law Society that he would not engage in the practice of law until released from that undertaking by the Discipline Committee. That undertaking continues in force.
[2] See 2012 BCCA 283.
[3] Law Society Rules 4-13 and 4-14.
[4] See generally Law Society Rules 4-34 and 4-35.
[5] The minute of the Committee’s decision is quite unrevealing.
[6] See paragraph [5] above.
[7] Written submission, paragraphs 19 to 22. On one view the language of Rule 4-40(3) – "the Benchers may summarily suspend or disbar" – does not preclude the imposition of some other sanction such as a fine. In view of our conclusions as to the merits, however, it is not necessary for us to decide whether the Respondent’s contention is correct.
[8] Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[9] Written submission, paragraph 53.
[10] See above, paragraph [13].
[11] Rules 4-41(1)(b) and 4-42(2) contemplate written and oral "submissions" only.
[12] See note 1, above.
[13] Written submission, paragraph 52.
[14] What follows is adapted from paragraphs [2] and [3] of the reasons for judgment of Saunders, JA for the Court of Appeal - 2012 BCCA 283.
[15] See generally, Law Society of BC v. Ogilvie, [1999] LSBC 17.
[16] A lawyer is an officer of the court. Act, section 14(2).
[17] Although the Code of Professional Conduct for British Columbia only came into force in January, 2013, the substance of Rule 2.1-2(c) is not new.
[18] See Law Society of Manitoba v. MacIver, [2003] LSDD No. 29; Law Society of Upper Canada v. Colman, [1988] LSDD No. 103; Law Society of Upper Canada v. Wijesinka, [1988] LSDD No. 89. And cf. Law Society of BC v. Djorgee, 2008 LSBC 27; Law Society of Upper Canada v. Maroon, 2005 ONLSHP 21; and Law Society of BC v. Cruikshank, [1998] LSDD No. 11.
[19] Law Society of BC v. Martin, 2005 LSBC 16 at paragraph [171]. See also Re: Lawyer 12, 2011 LSBC 35. And cf. Law Society of BC v. Djorgee, above note 17.
[20] We are apparently relieved from the necessity to characterize the member’s conduct. This seems to flow from the fact that section 38(4) of the Act, which requires a finding of this nature, is only inapplicable to a hearing following a citation – see section 38(1) of the Act – and from the fact that Rule 4-40(3) permits us to act "summarily" and "without following the procedure provided for in the Act or these Rules".
[21] MacIver, Colman and Wijesinka.
[22] Djorgee and Maroon.
[23] Cruikshank.
[24] At paragraph [29].
[25] At paragraph [31]
[26] Ibid.