Decisions on ungovernability and privileged information

Two recent discipline decisions — one from a Law Society hearing panel and the other from the Court of Appeal — will enhance the Law Society’s ability to govern the profession in the public interest.

The first, Law Society of BC v. Hall, 2007 LSBC 26 (penalty); 2006 LSBC 10 (facts and verdict), opens the door to disbarment based on “ungovernability” — a persistent disregard of the Law Society’s regulatory processes.

The underlying principle behind a finding of ungovernability is that the legal profession cannot continue to be a self-regulating profession if lawyers do not accept regulation by their governing body.

“The public interest can only be served if members of the profession respect and respond to the Law Society as a regulating authority,” the hearing panel in Hall concluded.

The panel found there was sufficient evidence to disbar Hall without a finding of ungovernability, but canvassed the issue because it has not previously been considered in this province. Ungovernability has been accepted as grounds for disbarment by law societies in Ontario, Manitoba and Alberta.

Relevant factors for a finding of ungovernability include:

  • a consistent failure to respond to the Law Society;
  • neglect of trust account record keeping;
  • misleading a client or the Law Society;
  • failure to attend discipline hearings;
  • a discipline history involving different circumstances over a period of time;
  • a history of breaches of undertakings without regard for the consequences; and
  • practising law while under suspension.

The panel emphasized that it is not necessary to establish all these factors to conclude a lawyer is ungovernable.

“We do not foreclose the possibility that a finding of ungovernability can be made if all that was present was a repeated failure of a lawyer to respond to inquiries from the Law Society, if that failure is illustrative of a wanton disregard and disrespect of the lawyer for the regulatory processes that govern his or her conduct.”

A separate hearing panel in Law Society of BC v. Basi, 2007 LSBC 25, accepted the Law Society’s submission that a lawyer could be disbarred if ungovernable but did not consider the jurisprudence in depth as the facts did not demonstrate ungovernability.

The second case, Skogstad v. Law Society of BC, 2007 BCCA 310, confirms that s. 88 of the Legal Profession Act allows a lawyer to provide privileged information to the Law Society during a professional conduct investigation or hearing.

During a discipline hearing, a lawyer objected to a question from Law Society counsel on the grounds that it would require him to divulge information covered by solicitor-client privilege.

The hearing panel, however, observed that s. 88(1) states that a lawyer who provides privileged information to the Law Society in the course of an investigation or hearing “is deemed conclusively not to have breached any duty … owed to the society or the client.”

The Court of Appeal upheld the ruling, noting that s. 88(2) imposes duties to protect solicitor-client privilege on the recipient of the information while s. 88(3) prohibits disclosure except for purposes contemplated by the Legal Profession Act or the Law Society Rules.

In addition, Rule 5-8 provides that privileged information must not be disclosed in any reasons given as a result of disciplinary proceedings and ss. 88(4)-(6) of the Act maintain the privilege in any subsequent court proceedings.

“Section 88 legislatively addresses the required balancing of the protection of solicitor-client privilege and the supervision and maintenance of the integrity of the legal profession,” the court said. “A lawyer is free to provide required information to the Law Society and the privilege of the client is maintained intact.”

The court added that “proper regulation by the Law Society of the competence and integrity of lawyers requires access to confidential, and occasionally, privileged information.”