Part 4 – Discipline

Interpretation and application

4-1 (1) In this part,

“conduct meeting” means a meeting that a lawyer is required to attend under Rule 4-4 (1) (c) [Action on complaints];

“conduct review” means a meeting with a conduct review subcommittee that a lawyer is required to attend under Rule 4-4 (1) (d).

(2) This part applies to a former lawyer, an articled student, a visiting lawyer permitted to practise law under Rules 2-16 to 2-20 and a practitioner of foreign law as it does to a lawyer, with the necessary changes and so far as it is applicable.

(3) This part must be interpreted in a manner consistent with standards of simplicity, fairness and expediency, and so as to provide maximum protection to the public and to lawyers.

Discipline Committee

4-2 (1) For each calendar year, the President must appoint a Discipline Committee, including a chair and vice chair, both of whom must be Benchers.

(2) The President may remove any person appointed under subrule (1).

(3) At any time, the President may appoint a person to the Discipline Committee to replace a Committee member who resigns or otherwise ceases membership in the Committee, or to increase the number of members of the Committee.

(4) Any function of the chair of the Discipline Committee under this part may be performed by the vice chair if the chair is not available for any reason, or by another Bencher member of the Committee designated by the President if neither the chair nor the vice-chair is available for any reason.

Consideration of complaints by Committee

4-3 (1) The Discipline Committee must consider any complaint referred to it under these rules and may instruct the Executive Director to make or authorize further investigation that the Discipline Committee considers desirable.

(2) If, in the view of the Executive Director and the chair of the Discipline Committee, there is a need to act before a meeting of the Committee can be arranged, the Executive Director may refer a complaint to the chair for consideration under Rule 4-5 [Consideration of complaints by chair]. 

Action on complaints

4-4 (1) After its consideration under Rule 4-3 [Consideration of complaints by Committee, the Discipline Committee must

(a) decide that no further action be taken on the complaint,

(b) authorize the chair or other Bencher member of the Discipline Committee to send a letter to the lawyer concerning the lawyer’s conduct,

(c) require the lawyer to attend a meeting with one or more Benchers or lawyers to discuss the conduct of the lawyer,

(d) require the lawyer to appear before a Conduct Review Subcommittee, or

(e) direct that the Executive Director issue a citation against the lawyer under Rule 4-17 (1) [Direction to issue, expand or rescind citation].

(2) In addition to the determination made under subrule (1), the Discipline Committee may refer any matter or any lawyer to the Practice Standards Committee.

(3) In addition to any action taken under subrules (1) and (2), if a complaint discloses that there may be grounds for revoking a law corporation’s permit under Rule 9-11 [Revocation of permits], the Discipline Committee may order a hearing on the revocation of the law corporation’s permit.

(4) At any time before the Discipline Committee makes a decision under Rule 4-13 (6) (a) to (c) [Conduct Review Subcommittee report], the Committee may resolve to rescind a decision made under subrule (1) (d) to require a lawyer to appear before a Conduct Review Subcommittee and substitute another decision under subrule (1).

Consideration of complaints by chair

4-5 (1) The chair of the Discipline Committee must consider any complaint referred to him or her under these rules and may instruct the Executive Director to make or authorize further investigation that the chair considers desirable.

(2) After considering a complaint under subrule (1), the chair of the Discipline Committee must

(a) direct that the Executive Director issue a citation against the lawyer under Rule 4-17(1) [Direction to issue, expand or rescind citation], or

(b) refer the complaint to the Discipline Committee.

Continuation of membership during investigation or disciplinary proceedings

4-6 (1) In this rule, “lawyer under investigation” means a lawyer who is the subject of

(a) an investigation under Part 3, Division 1, [Complaints] or

(b) a decision of the Discipline Committee under Rule 4-4 (1) (c) or (d) [Action on complaints].

(2) A lawyer under investigation may not resign from membership in the Society without the consent of the Executive Director.

(3) A respondent may not resign from membership in the Society without the consent of the Discipline Committee.

(4) The Executive Director may direct that a lawyer under investigation who would otherwise have ceased to be a member of the Society for failure to pay the annual fee or a special assessment continue as a member not in good standing and not permitted to engage in the practice of law.

(5) The Discipline Committee may, by resolution, direct that a respondent who would otherwise have ceased to be a member of the Society for failure to pay the annual fee or a special assessment continue as a member not in good standing and not permitted to engage in the practice of law.

(6) A direction under subrule (4) or (5) may be made to continue in effect until stated conditions are fulfilled.

(7) When a direction under subrule (4) or (5) expires on the fulfillment of all stated conditions or is rescinded by the Executive Director or Discipline Committee,

(a) the lawyer concerned ceases to be a member of the Society,

(b) if the rescission is in response to a request of the lawyer concerned, the Committee may impose conditions on the rescission.

Notification

4-7 The Executive Director must notify the complainant and the lawyer or law corporation in writing of the determination of the Discipline Committee under Rule 4-4 [Action on complaints] or the chair under Rule 4-5 [Consideration of complaints by the chair].

Confidentiality of Discipline Committee deliberations

4-8 (1) No one is permitted to disclose any of the following information except for the purpose of complying with the objects of the Act or with these rules:

(a) information and documents that form part of the consideration of a complaint under Rule 4-4 [Action on complaints] or 4-5 [Consideration of complaints by chair];

(b) the result of a consideration under Rule 4-4.

(2) As an exception to subrule (1), the Executive Director may disclose information referred to in that subrule, with the consent of the lawyer, in responding to an enquiry made for the purpose of a potential judicial appointment.

(3) No one is permitted to disclose a direction to issue a citation until the respondent is notified. 

(4) Despite subrule (3), the Executive Director may disclose to the public a direction to issue a citation, its subject matter and its status before the respondent is notified if

(a) the identity of the respondent has already been disclosed to the public,

(b) the citation is in respect of an offence to which the respondent has pleaded guilty or of which the respondent has been found guilty, or

(c) the citation is based on a complaint that has become known to the public.

(5) Despite subrule (1), with the consent of the Discipline Committee, the Executive Director may deliver to a law enforcement agency any information or documents that the Committee reasonably believes may be evidence of an offence.

(6) This rule must not be interpreted to permit the disclosure of any information subject to solicitor and client privilege or confidentiality.

Conduct letter from the chair

4-9 (1) When a letter authorized under Rule 4-4 (1) (b) [Action on complaints] is sent to the lawyer, the Executive Director must provide the complainant with

(a) a copy of the letter, or

(b) if directed by the Discipline Committee, a summary of the letter.

(2) A letter authorized under Rule 4-4 (1) (b) [Action on complaints]

(a) does not form part of the lawyer’s professional conduct record, and

(b) is not admissible in the hearing of a citation under this part.

Conduct meeting

4-10 (1) A conduct meeting must be held in private.

(2) The Discipline Committee or the chair of the Discipline Committee may appoint one or more individuals who are Benchers, Life Benchers or lawyers to meet with a lawyer required to attend a conduct meeting under Rule 4-4 (1) (c) [Action on complaints].

(3) No record of an order under Rule 4-4 (1) (c) [Action on complaints] or of the conduct meeting forms part of the lawyer’s professional conduct record.

(4) A Bencher or other lawyer who has participated in a conduct meeting is not permitted to testify in the hearing of a citation as to any statement made by the respondent during the conduct meeting, unless the respondent puts the matter in issue. 

Conduct Review Subcommittee

4-11 (1) The Discipline Committee or the chair of the Discipline Committee must appoint a Conduct Review Subcommittee to consider the conduct of a lawyer referred to the Subcommittee under Rule 4-4 (1) (d) [Action on complaints].

(2) A Conduct Review Subcommittee

(a) must include at least one lawyer,

(b) may include one or more appointed Benchers, and

(c) must be chaired by a Bencher or a Life Bencher.

Conduct review

4-12 (1) A conduct review is an informal proceeding at which the lawyer

(a) must appear personally, and

(b) may be represented by counsel.

(2) Subject to subrule (3), a conduct review must be conducted in private.

(3) The Conduct Review Subcommittee may, in its discretion, permit the complainant to be present at all or part of the meeting, with or without the right to speak at the meeting.

Conduct Review Subcommittee report

4-13 (1) The Conduct Review Subcommittee must

(a) prepare a written report of the factual background, the Subcommittee’s conclusions and any recommendations, and

(b) deliver a copy of that report to the lawyer, together with written notice that the lawyer has 30 days from the date of the notice to notify the chair of the Subcommittee in writing of any dispute as to the contents of the report and the reasons he or she disputes the contents of the report.

(2) If the Subcommittee considers it necessary for the effective consideration of the lawyer’s dispute, it may order a further meeting.

(3) If a further meeting is ordered under subrule (2), Rule 4-12 [Conduct review] applies.

(4) The Subcommittee must consider the lawyer’s dispute and

(a) amend its report as it considers appropriate, or

(b) forward its report to the Discipline Committee without amendment.

(5) The Subcommittee must notify the lawyer in writing of its decision under subrule (4) and, if the report is amended, provide a copy of the amended report to

(a) the lawyer, and

(b) the Discipline Committee. 

(6) After considering the Conduct Review Subcommittee’s report, the Discipline Committee must do one or more of the following:

(a) decide to take no further action on the complaint;

(b) refer the lawyer to the Practice Standards Committee;

(c) direct that a citation be issued against the lawyer under Rule 4-17 (1) [Direction to issue, expand or rescind citation]; 

(d) rescind the decision under Rule 4-4 (1) (d) [Action on complaints] to require the lawyer to appear before the Conduct Review Subcommittee, and substitute another decision under Rule 4-4 (1).

(7) A member of the Discipline Committee who has participated in the Conduct Review Subcommittee is not, for that reason, precluded from participating in and voting on a decision under subrule (6).

(8) After making its decision under subrule (6), the Discipline Committee must

(a) notify the lawyer and the complainant of its decision, and

(b) subject to Rule 4-14 [Privilege and confidentiality], deliver a copy or summary of the report to the complainant.

Privilege and confidentiality

4-14 In complying with Rule 4-13 [Conduct Review Subcommittee report], the Discipline Committee and the Conduct Review Subcommittee must not disclose to the complainant information subject to the solicitor and client privilege of a client, other than the complainant, or other confidential information that the complainant is not entitled to receive.

Publication and disclosure

4-15 (1) The Executive Director may publish and circulate to the profession a summary of the circumstances of a matter that has been the subject of a conduct review.

(2) A summary published under subrule (1) must not identify the lawyer or complainant unless that person consents in writing to being identified.

(3) If a complaint giving rise to a conduct review is known to the public or if a conduct review is ordered in a matter that was the subject of a citation that has been rescinded, the Executive Director may disclose

(a) the fact that the lawyer is or has been required to appear before a Conduct Review Subcommittee, and

(b) the decision of the Discipline Committee under Rule 4-13 (6) [Conduct Review Subcommittee report]

(4) Subject to subrule (5), the Executive Director may disclose the report of a Conduct Review Subcommittee that has been considered by a hearing panel as part of a lawyer’s professional conduct record under Rule 4-44 (5) [Disciplinary action].

(5) This rule must not be interpreted to permit the disclosure of any information that is subject to solicitor and client privilege or confidentiality.

Evidence of conduct review at the hearing of a citation

4-16 If a hearing is held on a citation issued following a conduct review concerning the same conduct referred to in the citation,

(a) the Conduct Review Subcommittee’s written report is not admissible at the hearing, and

(b) no member of the Conduct Review Subcommittee is permitted to testify as to any statement made by the lawyer during the conduct review, unless the respondent puts the matter in issue.

Direction to issue, expand or rescind citation

4-17 (1) The Discipline Committee or the chair of the Committee may order a hearing into the conduct or competence of a lawyer by directing that the Executive Director issue a citation against the lawyer.

(2) After a hearing has been ordered under subrule (1), the Discipline Committee may direct the Executive Director to add an allegation to a citation. 

(3) At any time before a panel makes a determination under Rule 4-44 [Disciplinary action], the Discipline Committee may rescind a citation or an allegation in a citation and substitute another decision under Rule 4-4(1) [Action on complaints].

Contents of citation

4-18 (1) A citation may contain one or more allegations.

(2) Each allegation in a citation must

(a) be clear and specific enough to give the respondent notice of the misconduct alleged, and

(b) contain enough detail of the circumstances of the alleged misconduct to give the respondent reasonable information about the act or omission to be proven against the respondent and to identify the transaction referred to.

Notice of citation

4-19 The Executive Director must serve a citation on the respondent

(a) in accordance with Rule 10-1 [Service and notice], and

(b) not more than 45 days after the direction that it be issued, unless the Discipline Committee or the chair of the Committee otherwise directs.

Disclosure of citation

4-20 (1) Once the respondent has been notified of a direction to issue a citation, the Executive Director may disclose to the public the citation and its status.

(2) The Executive Director may disclose the outcome of a citation, including dismissal by a panel, rescission by the Discipline Committee or the acceptance of a conditional admission.

(3) Disclosure under this rule may be made by means of the Society’s website.

(4) This rule must not be interpreted to permit the disclosure of any information that is subject to solicitor and client privilege or confidentiality.

Amending an allegation in a citation

4-21 (1) Discipline counsel may amend an allegation contained in a citation

(a) before the hearing begins, by giving written notice to the respondent and the President, and

(b) after the hearing has begun, with the consent of the respondent.

(2) The panel may amend a citation after the hearing has begun

(a) on the application of a party, or

(b) on its own motion.

(3) The panel must not amend a citation under subrule (2) unless the respondent and discipline counsel have been given the opportunity to make submissions respecting the proposed amendment.

[(1) amended 06/2016]

Severance and joinder

4-22 (1) Before a hearing begins, the respondent or discipline counsel may apply in writing to the President for an order that

(a) one or more allegations in a citation be determined in a separate hearing from other allegations in the same citation, or

(b) two or more citations be determined in one hearing.

(2) An application under subrule (1) must

(a) be copied to the party not making the application, and

(b) state the grounds for the order sought.

(3) [rescinded 06/2016]

(4) The President may

(a) allow the application with or without conditions,

(b) designate another Bencher to make a determination, or

(c) refer the application to a pre-hearing conference.

[(1) and (4) amended, (3) rescinded 06/2016]

Interim suspension or practice conditions

4-23 (1) In Rules 4-23 to 4-25, “proceeding” means the proceeding required under subrule (4).

(2) If there has been a direction under Rule 4-17 (1) [Direction to issue, expand or rescind citation] to issue a citation, 3 or more Benchers may do any of the following:

(a) in any case not referred to in paragraph (b), impose conditions or limitations on the practice of a respondent who is a lawyer or on the enrolment of a respondent who is an articled student;

(b) suspend a respondent who is a lawyer, if, on the balance of probabilities, the Benchers present consider that the continued practice of the respondent will be dangerous to the public or the respondent’s clients;

(c) suspend the enrolment of a respondent who is an articled student if the Benchers present consider, on the balance of probabilities, that the continuation of the student’s articles will be dangerous to the public or a lawyer’s clients.

(3) The Benchers referred to in subrule (2) must not include a member of the Discipline Committee.

(4) Before Benchers take action under this rule, there must be a proceeding at which 3 or more Benchers and discipline counsel must be present.

(5) The proceeding referred to in subrule (4) may take place without notice to the respondent if the majority of Benchers present are satisfied that notice would not be in the public interest.

(6) The respondent and respondent’s counsel may be present at a proceeding.

(7) All proceedings under this rule must be recorded by a court reporter.

(8) Subject to the Act and these rules, the Benchers present may determine the practice and procedure to be followed at a proceeding.

(9) Unless the Benchers present order otherwise, the proceeding is not open to the public.

(10) The respondent or discipline counsel may request an adjournment of a proceeding.

(11) Rule 4-40 [Adjournment] applies to an application for an adjournment made before the commencement of the proceeding as if it were a hearing.

(12) Despite subrule (11), the Executive Director is not required to notify a complainant of a request made under subrule (10).

(13) After a proceeding has begun, the Benchers present may adjourn the proceeding, with or without conditions, generally or to a specified date, time and place. 

(14) An order made under subrule (2) or varied under subrule (15) is effective until the first of

(a) final disposition of the citation,

(b) variation or further variation under subrule (15), or

(c) a contrary order under Rule 4-26 [Review of interim suspension of practice conditions].

(15) An order made under subrule (2) may be varied by the Benchers who made it, or a majority of them, on the application of the respondent or discipline counsel.

(16) On an application to vary an order under subrule (15),

(a) both the respondent and discipline counsel must be given a reasonable opportunity to make submissions in writing,

(b) the Benchers considering an application under subrule (15) may allow oral submissions if, in their discretion, it is appropriate to do so.

(c) if, for any reason, a Bencher who participated in making the order is unable to participate in the decision, the President may assign another Bencher who is not a member of the Discipline Committee to participate in the decision in the place of the Bencher.

Notification of respondent

4-24 When an order is made under Rule 4-23 (2) [Interim suspension or practice conditions] without notice to the respondent, the Executive Director must immediately notify the respondent in writing, that

(a) the order has been made,

(b) the respondent is entitled, on request, to a transcript of the proceeding under Rule 4-23 (4), and

(c) the respondent may apply under Rule 4-26 [Review of interim suspension or practice conditions] to have the order rescinded or varied.

Disclosure

4-25 (1) Unless an order has been made under Rule 4-23 (2) [Interim suspension or practice conditions], no one is permitted to disclose any of the following information except for the purpose of complying with the objects of the Act or with these rules:

(a) the fact that a Committee or an individual has referred a matter for consideration by 3 or more Benchers under Rule 4-23;

(b) the scheduling of a proceeding under Rule 4-23;

(c) the fact that a proceeding has taken place.

(2) When an order has been made or refused under Rule 4-23 (2) [Interim suspension or practice conditions], the Executive Director may, on request, disclose the fact of the order or refusal and the reasons for it.

Review of interim suspension or practice conditions

4-26 (1) If an order has been made under Rule 4-23 (2) [Interim suspension or practice conditions], the respondent may apply in writing to the President at any time for rescission or variation of the order.

(2) An application under subrule (1) must be heard as soon as practicable and, if the respondent has been suspended without notice, not later than 7 days after the date on which it is received by the Society, unless the respondent consents to a longer time.

(3) When application is made under subrule (1), the President must appoint a new panel under Rule 4-39 [Appointment of panel].

(4) A panel appointed under subrule (3) must not include a person who

(a) participated in the decision that authorized the issuance of the citation,

(b) was one of the Benchers who made the order under review, or

(c) is part of a panel assigned to hear the citation.

(5) A hearing under this rule is open to the public, but the panel may exclude some or all members of the public in any circumstances it considers appropriate.

(6) On application by anyone, the panel may make the following orders to protect the interests of any person:

(a) an order that specific information not be disclosed;

(b) any other order regarding the conduct of the hearing necessary for the implementation of an order under paragraph (a).

(7) All proceedings at a hearing under this rule must be recorded by a court reporter, and any person may obtain, at his or her expense, a transcript of any part of the hearing that he or she was entitled to attend.

(8) The respondent and discipline counsel may call witnesses to testify who

(a) if competent to do so, must take an oath or make a solemn affirmation before testifying, and

(b) are subject to cross-examination.

(9) If the order under Rule 4-23 (2) [Interim suspension or practice conditions] took effect without notice to the respondent, witnesses called by discipline counsel must testify first, followed by witnesses called by the respondent.

(10) If subrule (9) does not apply, witnesses called by the respondent must testify first, followed by witnesses called by discipline counsel.

(11) The panel may

(a) accept an agreed statement of facts, and

(b) admit any other evidence it considers appropriate. 

(12) Following completion of the evidence, the panel must

(a) invite the respondent and discipline counsel to make submissions on the issues to be decided by the panel,

(b) decide by majority vote whether cause has been shown by the appropriate party under subrule (13) or (14), as the case may be, and

(c) make an order if required under subrule (13) or (14).

(13) If an order has been made under Rule 4-23 (2) [Interim suspension or practice conditions] with notice to the respondent, the panel must rescind or vary the order if cause is shown on the balance of probabilities by or on behalf of the respondent.

(14) If an order has been made under Rule 4-23 (2) [Interim suspension or practice conditions] without notice to the respondent, the panel must rescind or vary the order, unless discipline counsel shows cause, on the balance of probabilities, why the order should not be rescinded or varied.

Appointment of discipline counsel

4-27 The Executive Director must appoint a lawyer employed by the Society or retain another lawyer to represent the Society when

(a) a direction to issue a citation is made under Rule 4-17 [Direction to issue, expand or rescind citation],

(b) a person initiates a review under section 47 [Review on the record],

(c) a person appeals a decision to the Court of Appeal under section 48 [Appeal], or

(d) the Society is a respondent in any other action involving the investigation of a complaint or the discipline of a lawyer.

Notice to admit

4-28 (1) At any time, but not less than 45 days before a date set for the hearing of a citation, the respondent or discipline counsel may request the other party to admit, for the purposes of the hearing only, the truth of a fact or the authenticity of a document.  

(2) A request made under subrule (1) must

(a) be made in writing in a document clearly marked “Notice to Admit” and served in accordance with Rule 10-1 [Service and notice], and

(b) include a complete description of the fact, the truth of which is to be admitted, or attach a copy of the document, the authenticity of which is to be admitted.

(3) A party may make more than one request under subrule (1).

(4) A respondent or discipline counsel who receives a request made under subrule (1) must respond within 21 days by serving a response on the other party in accordance with Rule 10-1 [Service and notice].

(5) The time for response under subrule (4) may be extended by agreement of the parties or by an order under Rule 4-36 [Preliminary questions] or 4-38 [Pre-hearing conference].

(6) A response under subrule (4) must contain one of the following in respect of each fact described in the request and each document attached to the request:

(a) an admission of the truth of the fact or the authenticity of the document attached to the request;

(b) a statement that the party making the response does not admit the truth of the fact or the authenticity of the document, along with the reasons for not doing so.

(7) If a party who has been served with a request does not respond in accordance with this rule, the party is deemed, for the purposes of the hearing only, to admit the truth of the fact described in the request or the authenticity of the document attached to the request.

(8) If a party does not admit the truth of a fact or the authenticity of a document under this rule, and the truth of the fact or authenticity of the document is proven in the hearing, the panel may consider the refusal when exercising its discretion respecting costs under Rule 5-11 [Costs of hearings].

(9) A party who has admitted or is deemed to have admitted the truth of a fact or the authenticity of a document under this rule may withdraw the admission with the consent of the other party or with leave granted on an application

(a) before the hearing has begun, under Rule 4-36 [Preliminary questions] or 4-38 [Pre-hearing conference], or

(b) after the hearing has begun, to the hearing panel.

Conditional admissions

4-29 (1) A respondent may, at least 14 days before the date set for a hearing under this part, tender to the Discipline Committee a conditional admission of a discipline violation.

(2) The chair of the Discipline Committee may waive the 14-day time limit in subrule (1).

(3) The Discipline Committee may, in its discretion,

(a) accept the conditional admission,

(b) accept the conditional admission subject to any undertaking that the Committee requires the respondent to give in order to protect the public interest, or

(c) reject the conditional admission. 

(4) If the Discipline Committee accepts a conditional admission tendered under this rule,

(a) those parts of the citation to which the conditional admission applies are resolved,

(b) the Executive Director must

(i) record the respondent’s admission on the respondent’s professional conduct record, and

(ii) notify the respondent and the complainant of the disposition, and

(c) subject to solicitor and client privilege and confidentiality, the Executive Director may disclose the reasons for the Committee’s decision.

(5) A respondent who undertakes under this rule not to practise law is a person who has ceased to be a member of the Society as a result of disciplinary proceedings under section 15 (3) [Authority to practise law].

Conditional admission and consent to disciplinary action

4-30 (1) A respondent may, at least 14 days before the date set for a hearing under this part, tender to the Discipline Committee a conditional admission of a discipline violation and the respondent’s consent to a specified disciplinary action.

(2) The chair of the Discipline Committee may waive the 14-day limit in subrule (1).

(3) The Discipline Committee may, in its discretion, accept or reject a conditional admission and proposed disciplinary action.

(4) If the Discipline Committee accepts the conditional admission and proposed disciplinary action, it must instruct discipline counsel to recommend its acceptance to the hearing panel.

(5) If the panel accepts the respondent’s proposed disciplinary action it must

(a) instruct the Executive Director to record the lawyer’s admission on the lawyer’s professional conduct record,

(b) impose the disciplinary action that the respondent has proposed, and

(c) notify the respondent and the complainant of the disposition.

Rejection of admissions

4-31 (1) A conditional admission tendered under Rule 4-29 [Conditional admissions] must not be used against the respondent in any proceeding under this part or Part 5 [Hearings and appeals] unless the admission is accepted by the Discipline Committee. 

(2) A conditional admission tendered under Rule 4-30 [Conditional admission and consent to disciplinary action] must not be used against the respondent in any proceeding under this part unless

(a) the admission is accepted by the Discipline Committee, and

(b) the admission and proposed disciplinary action is accepted by a hearing panel.

(3) If a panel rejects the respondent’s proposed disciplinary action tendered in accordance with Rule 4-30 [Conditional admission and consent to disciplinary action], it must advise the chair of the Discipline Committee of its decision and proceed no further with the hearing of the citation.

(4) On receipt of a notification under subrule (3), the chair of the Discipline Committee must instruct discipline counsel to proceed to set a date for the hearing of the citation.

(5) When a panel rejects a proposed disciplinary action tendered in accordance with Rule 4-30 [Conditional admission and consent to disciplinary action], no member of that panel is permitted to sit on the panel that subsequently hears the citation.

Notice of hearing

4-32 (1) The date, time and place for the hearing to begin must be set

(a) by agreement between discipline counsel and the respondent, or

(b) on the application of a party, by the President or by the Bencher presiding at a pre-hearing conference.

(2) When a date is set under subrule (1), the President must notify the parties in writing of the date, time and place of the hearing at least 30 days before the date set for the hearing to begin, unless the respondent consents to a shorter notice period.

(3) Written notification under subrule (2) may be made at the same time that the citation is served under Rule 4-19 [Notice of citation], or at a later time.

[(1) and (2) amended 06/2016]

Summary hearing

4-33 (1) This rule may be applied in respect of the hearing of a citation comprising only allegations that the respondent has done one or more of the following:

(a) breached a rule;

(b) breached an undertaking given to the Society;

(c) failed to respond to a communication from the Society;

(d) breached an order made under the Act or these rules. 

(2) Unless the panel orders otherwise, the respondent and discipline counsel may adduce evidence by

(a) affidavit,

(b) an agreed statement of facts, or

(c) an admission made or deemed to be made under Rule 4-28 [Notice to admit].

(3) Despite Rules 4-43 [Submissions and determination] and 4-44 [Disciplinary action], the panel may consider facts, determination, disciplinary action and costs and issue a decision respecting all aspects of the proceeding.

Demand for disclosure of evidence

4-34 (1) At any time after a citation has been issued and before the hearing begins, a respondent may demand in writing that discipline counsel disclose the evidence that the Society intends to introduce at the hearing.

(2) On receipt of a demand for disclosure under subrule (1), discipline counsel must provide the following to the respondent by a reasonable time before the beginning of the hearing:

(a) a copy of every document that the Society intends to tender in evidence;

(b) a copy of any statement made by a person whom the Society intends to call as a witness;

(c) if documents provided under paragraphs (a) and (b) do not provide enough information, a summary of the evidence that the Society intends to introduce;

(d) a summary of any other relevant evidence in discipline counsel’s possession or in a Society file available to discipline counsel, whether or not counsel intends to introduce that evidence at the hearing.

(3) Despite subrule (2), discipline counsel must not provide any information or documents about any discussion or other communication with the Ombudsperson in that capacity.

Application for details of the circumstances

4-35 (1) Before a hearing begins, the respondent may apply for disclosure of the details of the circumstances of misconduct alleged in a citation by delivering to the President and discipline counsel written notice setting out the substance of the application and the grounds for it.

(2) [rescinded 06/2016]

(3) If the President is satisfied that an allegation in the citation does not contain enough detail of the circumstances of the alleged misconduct to give the respondent reasonable information about the act or omission to be proven and to identify the transaction referred to, the President must order discipline counsel to disclose further details of the circumstances.

(4) Details of the circumstances disclosed under subrule (3) must be

(a) in writing, and

(b) delivered to the respondent or respondent’s counsel.

(5) The President may

(a) designate another Bencher to make a determination under subrule (3), or

(b) refer the application to a pre-hearing conference.

[(1) and (5) amended, (2) rescinded 06/2016]

Preliminary questions

4-36 (1) Before a hearing begins, the respondent or discipline counsel may apply for the determination of a question relevant to the hearing by delivering to the President and to the other party written notice setting out the substance of the application and the grounds for it.

(2) [rescinded 06/2016]

(3) When an application is made under subrule (1), the President must do one of the following as appears to the President to be appropriate:

(a) appoint a panel to determine the question;

(b) refer the question to a pre-hearing conference;

(c) refer the question to the panel at the hearing of the citation.

(4) The President may designate another Bencher to exercise the discretion under subrule (3).

(5) A panel appointed under subrule (3) (a) is not seized of the citation or any question pertaining to the citation other than that referred under that provision.

[(1) and (3) amended, (2) rescinded 06/2016]

Compelling witnesses and production of documents

4-37 (1) Before a hearing begins, the respondent or discipline counsel may apply for an order under section 44 (4) [Witnesses] by delivering to the President and to the other party written notice setting out the substance of the application and the grounds for it.

(2) [rescinded 06/2016]

(3) When an application is made under subrule (1), after considering any submissions, the President must

(a) make the order requested or another order consistent with section 44 (4) [Witnesses], or

(b) refuse the application. 

(4) The President may designate another Bencher to make a decision under subrule (3).

(5) On the motion of the respondent or discipline counsel, the President or another Bencher designated by the President may apply to the Supreme Court under section 44 (5) [Witnesses] to enforce an order made under subrule (3).

[(1) amended, (2) rescinded 06/2016]

Pre-hearing conference

4-38 (1) The President may order a pre-hearing conference at any time before the hearing of a citation begins, at the request of the respondent or discipline counsel, or on the President’s own initiative.

(2) When the President orders a conference under subrule (1), the President must

(a) set the date, time and place of the conference, and notify the parties, and

(b) designate a Bencher to preside at the conference.

(3) [rescinded 06/2016]

(4) Discipline counsel must be present at the conference.

(5) The respondent may attend the conference in person, through counsel or both.

(6) If the respondent fails to attend the conference, the Bencher presiding may proceed with the conference in the absence of the respondent and may make any order under this rule, if the Bencher is satisfied that the respondent had notice of the conference.

(7) Any person may participate in a conference by telephone or by any other means of communication that allows all persons participating to hear each other, and a person so participating is present for the purpose of this rule.

(8) The conference may consider

(a) the simplification of the issues,

(b) the necessity or desirability of amendments to the citation,

(c) the possibility of obtaining admissions that might facilitate the hearing,

(d) the discovery and production of documents,

(e) the possibility that privilege or confidentiality might require that all or part of the hearing be closed to the public, or that exhibits and other evidence be excluded from public access,

(f) setting a date for the hearing to begin, and

(g) any other matters that may aid in the disposition of the citation. 

(9) The respondent or discipline counsel may apply to the Bencher presiding at the conference for an order

(a) for discovery and production of documents,

(b) to withhold the identity or contact information of a witness,

(c) to adjourn the hearing of the citation,

(d) for severance of allegations or joinder of citations under Rule 4-22 [Severance and joinder],

(e) for disclosure of the details of the circumstances of misconduct alleged in a citation under Rule 4-35 [Application for details of the circumstances], or

(f) concerning any other matters that may aid in the disposition of the citation.

(10) The Bencher presiding at a pre-hearing conference may

(a) adjourn the conference generally or to a specified date, time and place,

(b) set a date for the hearing to begin, and

(c) allow or dismiss an application made under subrule (9) or referred to the conference under this part.

[(2) amended, (3) rescinded 06/2016]

Appointment of panel

4-39 When a citation is issued under Rule 4-17 (1) [Direction to issue, expand or rescind citation], the President must establish a panel to conduct a hearing, make a determination under Rule 4-43 [Submissions and determination] and take action, if appropriate, under Rule 4-44 [Disciplinary action].

Adjournment

4-40 (1) Before a hearing begins, the respondent or discipline counsel may apply for an order that the hearing be adjourned by delivering to the President and the other party written notice setting out the grounds for the application.

(2) [rescinded 06/2016]

(3) Before the hearing begins, the President must decide whether to grant the adjournment, with or without conditions, and must notify the parties accordingly.

(4) The President may

(a) designate another Bencher to make a determination under subrule (3), or

(b) refer the application to a pre-hearing conference.

(5) After a hearing has begun, the chair of the panel may adjourn the hearing, with or without conditions, generally or to a specified date, time and place.

(6) [rescinded 06/2016]

(7) Rule 4-32 [Notice of hearing] does not apply when a hearing is adjourned and re-set for another date.

[(1) and (4) amended, (2) and (6) rescinded 06/2016]

Preliminary matters

4-41 (1) Before hearing any evidence on the allegations set out in the citation, the panel must determine whether

(a) the citation was served in accordance with Rule 4-19 [Notice of citation], or

(b) the respondent waives any of the requirements of Rule 4-19.

(2) If the requirements of Rule 4-19 [Notice of citation] have been met, or have been waived by the respondent, the citation or a copy of it must be filed as an exhibit at the hearing, and the hearing may proceed.

(3) Despite subrule (1), before the hearing begins, the panel may receive and consider.

(a) the citation,

(b) an agreed statement of facts,

(c) an admission made or deemed to be made under Rule 4-28 [Notice to admit],

(d) a conditional admission and consent to a specified disciplinary action tendered by the respondent and accepted by the Discipline Committee under Rule 4-30 [Consent to disciplinary action], and

(e) any other document or evidence by agreement of the parties.

Evidence of respondent

4-42 Discipline counsel must notify the respondent of an application for an order that the respondent give evidence at the hearing.

Submissions and determination

4-43 (1) Following completion of the evidence, the panel must invite submissions from discipline counsel and the respondent on each allegation in the citation.

(2) After submissions under subrule (1), the panel must

(a) find the facts and make a determination on each allegation, and

(b) prepare written reasons for its findings on each allegation.

(3) A copy of the panel’s reasons prepared under subrule (2) (b) must be delivered promptly to each party.

[(3) amended 06/2016]

Disciplinary action

4-44 (1) Following a determination under Rule 4-43 [Submissions and determination] adverse to the respondent, the panel must

(a) invite the respondent and discipline counsel to make submissions as to disciplinary action,

(b) take one or more of the actions referred to in section 38 (5) or (6) [Discipline hearings]

(c) include in its decision under this rule

(i) any order, declaration or imposition of conditions under section 38(7), and

(ii) any order under Rule 5-11 [Costs of hearings] on the costs of the hearing, including any order respecting time to pay,

(d) prepare a written record, with reasons, of its action taken under subrule (b) and any action taken under subrule (c),

(e) if it imposes a fine, set the date by which payment to the Society must be completed, and

(f) if it imposes conditions on the respondent’s practice, set the date by which the conditions must be fulfilled.

(2) If a panel gives reasons orally for its decision under Rule 4-43 (2) (a) [Submissions and determination], the panel may proceed under subrule (1) before written reasons are prepared under Rule 4-43 (2) (b).

(3) Despite subrule (1) (b), if the respondent is a member of another governing body and not a member of the Society, the panel may do one or more of the following:

(a) reprimand the respondent;

(b) fine the respondent an amount not exceeding $50,000;

(c) prohibit the respondent from practising law in British Columbia permanently or for a specified period of time;

(d) declare that, had the respondent been a member of the Society, the panel would have

(i) disbarred the respondent,

(ii) suspended the respondent, or

(iii) imposed conditions or limitations on the practice of the respondent.

(4) A copy of the panel’s reasons prepared under subrule (1) (d) must be delivered promptly to each party.

(5) The panel may consider the professional conduct record of the respondent in determining a disciplinary action under this rule.

(6) Regardless of the nature of the allegation in the citation, the panel may take disciplinary action based on the ungovernability of the respondent by the Society.

(7) The panel must not take disciplinary action under subrule (6) unless the respondent has been given at least 30 days notice that ungovernability may be raised as an issue at the hearing on disciplinary action.

(8) The panel may adjourn the hearing on disciplinary action to allow compliance with the notice period in subrule (7).

[(4) amended 06/2016]

Discipline proceedings involving members of other governing bodies

4-45 (1) The Executive Director must send written notice of the action to every governing body of which the person concerned is known to be a member when

(a) a citation is authorized under Rule 4-17 [Direction to issue, expand or rescind citation],

(b) a disciplinary action is imposed under Rule 4-44 [Disciplinary action], or

(c) a conditional admission tendered under Rule 4-29 [Conditional admissions] is accepted by the Discipline Committee.

(2) When a citation is authorized against a lawyer who is a member of a governing body or when a governing body initiates disciplinary proceedings against a member of the Society, the Discipline Committee must consult with the governing body about the manner in which disciplinary proceedings are to be taken and the Society is bound by any agreement the Discipline Committee makes with the other governing body.

(3) The Discipline Committee may agree that the venue of disciplinary proceedings be changed to or from that of the Society, if it is in the public interest or if there is a substantial savings in cost or improvement in the convenience of any person without compromising the public interest.

(4) The Discipline Committee may take action under Rule 4-4 [Action on complaints] against a lawyer who

(a) has violated a prohibition against practice imposed by a governing body,

(b) is the subject of a declaration by a governing body under a provision similar to Rule 4-44 (3) (d) [Disciplinary action], or

(c) has made an admission that is accepted under a provision similar to Rule 4-29 [Conditional admission].

(5) The fact that a lawyer concerned is or has been the subject of disciplinary proceedings by a governing body does not preclude any disciplinary action for the same or related conduct under this part.

(6) In a proceeding under this part, the filing of a duly certified copy of the disciplinary decision of a governing body against a lawyer found guilty of misconduct is proof of the lawyer’s guilt.

Discipline involving lawyers practising in other jurisdictions

4-46 (1) If it is alleged that a member of the Society has committed misconduct while practising temporarily in another Canadian jurisdiction under provisions equivalent to Rules 2-15 to 2-27 [Inter-jurisdictional practice], the Discipline Committee will

(a) consult with the governing body concerned respecting the manner in which disciplinary proceedings will be conducted, and

(b) subject to subrule (2), assume responsibility for the conduct of the disciplinary proceedings under this part.

(2) The Discipline Committee may agree to allow the governing body concerned to assume responsibility for the conduct of disciplinary proceedings under subrule (1), including the expenses of the proceeding.

(3) In deciding whether to agree under subrule (2), the primary considerations will be the public interest, convenience and cost.

(4) To the extent that is reasonable in the circumstances, the Executive Director must do the following at the request of a governing body that is investigating the conduct of a member or former member of the Society or a visiting lawyer who has provided legal services:

(a) provide all relevant information and documentation respecting the lawyer or visiting lawyer as is reasonable in the circumstances;

(b) co-operate fully in the investigation and any citation and hearing.

(5) Subrule (4) applies when the Society agrees with a governing body under subrule (2).

(6) When the Executive Director provides information or documentation to a governing body under subrule (4) or (5), the Executive Director may inform any person whose personal, confidential or privileged information may be included of that fact and the reasons for it.

Public notice of suspension or disbarment

4-47 (1) When a person is suspended under this part or Part 5 [Hearings and Appeals], is disbarred or, as a result of disciplinary proceedings, resigns from membership in the Society or otherwise ceases to be a member of the Society as a result of disciplinary proceedings, the Executive Director must immediately give effective public notice of the suspension, disbarment or resignation by means including but not limited to the following:

(a) publication of a notice in

(i) the British Columbia Gazette,

(ii) a newspaper of general circulation in each municipality and each district referred to in Rule 1-21 [Regional election of Benchers], in which the person maintained a law office, and

(iii) the Society website, and

(b) notifying the following:

(i) the Registrar of the Supreme Court;

(ii) the Public Guardian and Trustee.

(2) When a person is suspended under Part 2 [Membership and Authority to Practise Law] or 3 [Protection of the Public], the Executive Director may take any of the steps referred to in subrule (1). 

(3) A lawyer who is suspended under this part or Part 5 [Hearings and Appeals] must inform all clients who reasonably expect the lawyer to attend to their affairs during the period of the suspension and clients or prospective clients who inquire about the availability of the lawyer’s services during the suspension period of the following:

(a) the period during which the lawyer will not be practising;

(b) the arrangements the lawyer has put in place to protect the clients’ interests while the lawyer will not be practising;

(c) the fact that the lawyer is not practising during the relevant period because of the suspension.

(4) A panel that suspends a lawyer may relieve the lawyer of any of the obligations set out in subrule (3) if the panel is satisfied that it is consistent with the public interest and that imposing the obligation would be unreasonable in the circumstances.

Publication of disciplinary action

4-48 (1) The Executive Director must publish and circulate to the profession a summary of the circumstances and of any decision, reasons and action taken

(a) at the conclusion of the facts and determination portion of a hearing of a citation,

(b) at the conclusion of the disciplinary action portion of a hearing of a citation,

(c) at the conclusion of a hearing of a citation under Rule 4-33 [Summary hearing],

(d) at the conclusion of a hearing before a review board under section 47 [Review on the record],

(e) at the conclusion of an appeal to the Court of Appeal under section 48 [Appeal],

(f) when an order is made or refused under Rule 4-26 (13) or (14) [Review of interim suspension or practice conditions],

(g) when a lawyer or former lawyer is suspended or disbarred under Rule 4-52 [Conviction], or

(h) when an admission is accepted under Rule 4-29 [Conditional admissions] or 4-30 [Conditional admission and consent to disciplinary action].

(2) The Executive Director may publish and circulate to the profession a summary of any decision, reasons and action taken not enumerated in subrule (1), other than

(a) a decision not to accept a conditional admission under Rule 4-29 [Conditional admissions] or 4-30 [Conditional admission and consent to disciplinary action], or

(b) any decision under Rule 4-23 (2) [Interim suspension or practice conditions]

(3) When a publication is required under subrule (1) or permitted under subrule (2), the Executive Director may also publish generally

(a) a summary of the circumstances of the decision, reasons and action taken,

(b) all or part of the written reasons for the decision, or

(c) in the case of a conditional admission that is accepted under Rule 4-29 [Conditional admissions], all or part of an agreed statement of facts.

(4) This rule must not be interpreted to permit the disclosure of any information subject to solicitor and client privilege or confidentiality.

Anonymous publication

4-49 (1) Except as allowed under this rule, a publication under Rule 4-48 [Publication of disciplinary action] must identify the respondent.

(2) If all allegations in the citation are dismissed by a panel, the publication must not identify the respondent unless the respondent consents in writing.

(3) An individual affected, other than the respondent, may apply to the panel for an order under subrule (4) before the written report on findings of fact and determination is issued or oral reasons are delivered.

(4) On an application under subrule (3) or on its own motion, the panel may order that publication not identify the respondent if

(a) the panel has imposed a disciplinary action that does not include a suspension or disbarment, and

(b) publication of the identity of the respondent could reasonably be expected to identify an individual, other than the respondent, and that individual would suffer serious prejudice as a result.

(5) If a panel orders that a respondent’s identity not be disclosed under subrule (4), the panel must state in writing the specific reasons for that decision.

Disclosure of practice restrictions

4-50 (1) When, under this part or Part 4 [Discipline] of the Act, a condition or limitation is imposed on the practice of a lawyer or a lawyer is suspended, the Executive Director may disclose the fact that the condition, limitation or suspension applies and the nature of the condition, limitation or suspension.

(2) If a lawyer gives an undertaking that restricts, limits or prohibits the lawyer’s practice in one or more areas of law, the Executive Director may disclose the fact that the undertaking was given and its effect on the lawyer’s practice.

(3) If the Executive Director discloses the existence of a condition, limitation or suspension under subrule (1) or an undertaking under subrule (2) by means of the Society’s website, the Executive Director must remove the information from the website within a reasonable time after the condition, limitation or suspension ceases to be in force.

Disbarment

4-51 When a lawyer is disbarred, the Executive Director must strike the lawyer’s name from the barristers and solicitors’ roll.

Conviction

4-52 (1) In this rule, “offence” means

(a) an offence that was proceeded with by way of indictment, or

(b) an offence in another jurisdiction that, in the opinion of the Benchers, is equivalent to an offence that may be proceeded with by way of indictment.

(2) If the Discipline Committee is satisfied that a lawyer or former lawyer has been convicted of an offence, the Committee may refer the matter to the Benchers to consider taking action under subrule (3).

(3) Without following the procedure provided for in the Act or these rules, the Benchers may summarily suspend or disbar a lawyer or former lawyer on proof that the lawyer or former lawyer has been convicted of an offence.

Notice

4-53 (1) Before the Benchers proceed under Rule 4-52 [Conviction], the Executive Director must notify the lawyer or former lawyer in writing that

(a) proceedings will be taken under that rule, and

(b) the lawyer or former lawyer may, by a specified date, make written submissions to the Benchers.

(2) The notice referred to in subrule (1) must be served in accordance with Rule 10-1 [Service and notice].

(3) In extraordinary circumstances, the Benchers may proceed without notice to the lawyer or former lawyer under subrule (1).

Summary procedure

4-54 (1) This rule applies to summary proceedings before the Benchers under Rule 4-52 [Conviction].

(2) The Benchers may, in their discretion, hear oral submissions from the lawyer or former lawyer.

(3) Subject to the Act and these rules, the Benchers may determine practice and procedure. 

Investigation of books and accounts

4-55 (1) If the chair of the Discipline Committee reasonably believes that a lawyer or former lawyer may have committed a discipline violation, the chair may order that an investigation be made of the books, records and accounts of the lawyer or former lawyer, including, if considered desirable in the opinion of the chair, all electronic records of the lawyer or former lawyer.

(2) When electronic records have been produced or copied pursuant to an order under this rule, the lawyer concerned may request that a specific record be excluded from the investigation on the basis that it contains personal information that is not relevant to the investigation.

(3) The lawyer must make a request under subrule (2) in writing to a person designated under subrule (6) within 7 days of receiving a copy of the order under this rule.

(4) An order under this rule that permits the production or copying of electronic records must provide for a method of evaluating and adjudicating exclusion requests made under subrule (2).

(5) A request under subrule (2) must be refused unless the records in question are retained in a system of storage of electronic records that permits the segregation of personal information in a practical manner in order to comply with the request.

(6) When an order is made under subrule (1),

(a) the Executive Director must designate one or more persons to conduct the investigation, and

(b) the lawyer or former lawyer concerned must

(i) immediately produce and permit the copying of all files, vouchers, records, accounts, books and any other evidence regardless of the form in which they are kept,

(ii) provide any explanations that the persons designated under paragraph (a) require for the purpose of the investigation,

(iii) assist the persons designated under paragraph (a) to access, in a comprehensible form, records in the lawyer’s possession or control that may contain information related to the lawyer’s practice by providing all information necessary for that purpose, including but not limited to

(A) passwords, and

(B) encryption keys, and

(iv) not alter, delete, destroy, remove or otherwise interfere with any book, record or account within the scope of the investigation without the written consent of the Executive Director.