Conduct review

Following consideration of a complaint, the Law Society’s Discipline Committee may order that a lawyer appear before the Conduct Review Subcommittee.

Rule 4-11 permits the Law Society to publish and circulate to the profession a summary of the circumstances of a matter that has been the subject of a conduct review. A summary published under this rule must not identify the lawyer or the complainant.

The Discipline Committee has identified the following conduct review as one that would provide guidance to the profession.

Re: A Lawyer

Lawyer D felt personally offended by the actions of a union. While the union’s actions did not affect him personally, he felt the organization was acting unlawfully and decided to launch a class action lawsuit against the union.

Lawyer D acknowledged that in addition to his concerns about the legality of the union’s actions, he was also motivated to file the lawsuit by the publicity he felt it would generate for him.

The lawyer told the Conduct Review Subcommittee that he did not want to launch the class action in his own name because he did not want to risk being exposed to a judgment for costs. Consequently, he contacted a former client and asked her if she wished to be the nominal plaintiff in the class action. The former client agreed to meet the lawyer the following day to discuss the matter, but did not attend the appointment. Lawyer D filed the class action in her name without further discussion with his former client because he believed media coverage was important at an early stage to attract potential members for the class action.

The former client learned she had been named as the plaintiff in the class action when contacted by the media two days later. She stated publicly that she had not instructed the lawyer to file the lawsuit. Lawyer D filed a notice of discontinuance as soon as he learned that his former client did not wish to be the nominal plaintiff in the action.

The Conduct Review Subcommittee emphasized to the lawyer the critical importance of obtaining clear instructions before filing a lawsuit. The Subcommittee also noted that a lawyer should not commence litigation for personal reasons or to generate publicity for himself or herself.