Discipline hearings are open to the public and are similar to court hearings. A Law Society lawyer, like a Crown prosecutor, presents evidence to prove the allegations in the citation. The lawyer who is the subject of the citation (the respondent) is usually represented by another lawyer. The hearing panel is chaired by a lawyer, and includes at least one Bencher or Life Bencher who is a lawyer, a non-Bencher lawyer and a non-lawyer member of the public who act as judges. Sometimes, the case can be heard by a single Bencher.
The Law Society urges all lawyers who are or may be subject to discipline proceedings to retain counsel. To assist, the Society has compiled a list of lawyers who have agreed to represent lawyers during the investigation and disciplinary processes: download the list of counsel.
If the respondent does not attend the hearing, it may proceed in his or her absence (section 42 of the Legal Profession Act).
Hearings are usually in two parts
Phase 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. After the hearing is over, a written decision will be issued outlining the findings of facts of the case and the decision of the panel. View recent hearing decisions.
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.
Phase 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 the following in deciding the phase:
- the nature and gravity of the conduct proven;
- the age and experience of the lawyer (respondent);
- the previous character of the lawyer, including the lawyer's professional conduct record;
- the impact upon the victim;
- the 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 upon the respondent of criminal or other sanctions or penalties;
- the impact of the proposed penalty on the lawyer;
- 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.
The possible sanctions for a lawyer who has committed a discipline violation may include:
- a reprimand;
- a fine not exceeding $20,000;
- 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;
For information on which activities are prohibited while suspended, and which are permitted, see the Information sheet for lawyers who are suspended from practice.
Sometimes the panel will decide that the lawyer must pay some of the costs of the hearings (Law Society Rule 5-11), based on:
- the seriousness of the violation;
- the financial circumstances of the respondent;
- 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 before the hearing?
Sometimes a lawyer may choose to admit to the discipline violation before the hearing proceeds. If the Discipline Committee accepts the admission, a summary of the circumstances will be published and the hearing may be cancelled.
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.
If accepted, the admission and disciplinary action form part of the lawyer’s professional conduct record and the decision is published.
Adjourning a hearing
Before a hearing begins, the lawyer named in the citation or discipline counsel can apply in writing to adjourn the hearing (Law Society Rule 4-40). A Bencher appointed by the President of the Law Society will decide whether to allow the application.
Once the hearing has started, only the chair of the panel may adjourn the hearing.
A pre-hearing conference (Law Society Rule 4-38) will usually be scheduled by the Law Society about one month before the hearing date. The respondent or the respondent’s lawyer may also request a conference, which can be held in person or by telephone.
The purpose of the conference is 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 (Law Society Rule 4-33) 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 – one to make the determination and another to decide on disciplinary action and sanctions.
Both the Discipline Committee and the respondent have the right to apply for a review of a hearing panel's decision. Such reviews are heard by a review board comprising seven adjudicators: three Law Society governors (Benchers), including the chair, two non-Bencher lawyers and two non-lawyers. The respondent also has the right to appeal the determination, the discipline sanctions or both to the BC Court of Appeal. The Discipline Committee has a right of appeal only on questions of law.