Lawyers may be asked to attend an informal “conduct meeting” to address minor misconduct
Discipline Committee to be given new conduct options
On recommendation of the Conduct Review Task Force, the Benchers have passed rules to allow the Discipline Committee to order a “conduct meeting” with a lawyer — an informal process to address conduct problems that are not sufficiently serious to merit either a formal discipline hearing or a conduct review.
When considering a complaint, the Discipline Committee has always had authority under the Rules to:
- take no further action;
- order a conduct review, in which the lawyer meets with two Benchers (or a Bencher and another senior lawyer) to discuss the conduct in question; or
- recommend a citation against the lawyer, leading to a formal discipline hearing.
For complaints that do not merit a discipline hearing but need to be addressed, the Committee often refers the lawyer to a conduct review.
In its initial report to the Benchers in May, the Task Force acknowledged that the purpose of the conduct review includes “ensuring that the lawyer understands why what he or she has done has resulted in a meeting with two benchers and ensuring that corrective measures are discussed in order to avoid having a repeat of the impugned conduct.”
Unlike a discipline hearing, which is a formal public hearing relating to more serious types of conduct and can lead to imposition of a penalty, a conduct review is intended to be educational and informal and not punitive in nature.
The Task Force, however, recommended that the Discipline Committee have additional options for addressing less serious misconduct than might be appropriate for a conduct review
Conduct letter from the Chair — practice recognized in Rules
When addressing a complaint involving minor misconduct that warrants neither a conduct review nor a citation, the Discipline Committee often asks the Committee Chair to write to the lawyer. This is an opportunity for the Committee to express its concerns and remind the lawyer of his or her professional obligations. This practice, endorsed by both the Task Force and the Benchers as a whole, is known as “conduct letter from the chair” and is now reflected in a new Law Society Rule (4-6.1).
The “conduct meeting” — a new option
The Benchers have also embraced the recommendation for a new and less formal option than the conduct review. This new process will be called a conduct meeting: see Rules 4-1, 4-4 and 4-6.2. Although a conduct review is an informal procedure and designed to help a lawyer avoid future conduct problems, the review results in a written report to the Discipline Committee and forms part of a lawyer’s professional conduct record. As such, the fact of a conduct review and the resulting report can be considered by any future discipline hearing (on consideration of penalty).
Unlike a conduct review, a “conduct meeting” will not form part of a lawyer’s professional conduct record.
Task Force Chair Ian Donaldson, QC told the Benchers that the Discipline Committee would be expected to refer relatively minor conduct matters to a conduct meeting, those matters that should not form part of a lawyer’s conduct record. A conduct review could be reserved for more serious indiscretions.
Conduct reviews improved
The Benchers have also approved several recommendations of the Task Force on ways to improve conduct reviews. There will now be more expansive minutes on a Discipline Committee decision to order a conduct review, which can be provided to the lawyer in preparation for the review. As well, more information on the conduct review process will be available to all members of the public via the Law Society website and to interested complainants through Law Society correspondence and at the conduct review itself, if the complainant is permitted to attend a portion of a review.
The Conduct Review Task Force was appointed in October 2003 to examine the conduct review process, including its procedural fairness and to make any recommendations it considered necessary for improvement. Originally chaired by Peter Keighley, QC prior to his appointment as a Master of the Supreme Court in 2004, the Task Force was subsequently chaired by Mr. Donaldson, and is composed of Benchers Michael Falkins and Robert McDiarmid, QC (since 2005), Life Benchers William Everett, QC, Russell Tretiak, QC and Jane Shackell, QC and Vancouver lawyer Ian Sissett.
For more information on conduct letters, conduct meetings and conduct reviews see Rules 4-1 through 4-10 as revised, on the Law Society website at www.lawsociety.bc.ca. These rules will be included in a future Member’s Manual amendment package.