Tuesday, April 18, 2017

Canadian Supreme Court Upholds Automatic Suspension For CLE Lapses: Attorney Admitted In 1955 Retires Rather Than Take "No Value" Courses

The Supreme Court of Canada held that the rule of mandatory suspension for CLE (called CPD in the Great White North) non-compliance was reasonable.

The attorney

G was called to the Bar in 1955 and has been a practising lawyer and member of The Law Society of Manitoba (“Law Society”) for over 60 years. Despite the Law Society’s mandatory rules requiring all practising lawyers to complete 12 hours of continuing professional development (“CPD”) a year, G did not report any CPD activities for 2012 or 2013. Over a year after G’s failure to report the completion of any CPD hours, the Law Society notified him that if he did not comply with the rules within 60 days, he would be suspended from practising law. G was also invited to correct any errors in his CPD record and was informed that it was possible for the 60‑day delay to be extended. G did not reply, nor did he apply for judicial review of the decision to suspend him. Rather, he challenged the validity of certain provisions of the Rules of The Law Society of Manitoba (“Rules”) with respect to CPD, by applying for declaratory relief. The application judge dismissed G’s application, concluding that the impugned rules fell squarely within the Law Society’s legislative mandate. The Court of Appeal dismissed the appeal for similar reasons.

The court majority

In this case, the impugned rules are reasonable in light of the Law Society’s statutory mandate. It is reasonable for the Rules to expose a lawyer to a suspension as a consequence for non‑compliance with the CPD program. The Act provides clear authority for the Law Society to create a CPD program that can be enforced by means of a suspension, and the overall purpose of the Act, the words used in it and the scheme of the Act show that the impugned rules are reasonable in light of the Law Society’s statutory mandate. A suspension, the purpose of which relates to compliance, not to punishment or professional competence, is a reasonable and effective way to ensure consistency of legal service across the province and to guarantee that even lawyers who are not interested in meeting the educational standards will comply. The right to practise law is not a common law right or a property right, but a statutory right that depends on the principles set out in the Act and the Rules.

Moreover, imposing a suspension on members for failing to comply with the impugned rules without giving such members a right to a hearing or a right of appeal is not unreasonable in light of the Law Society’s statutory powers. Rather, it is entirely consistent with the Law Society’s duty to establish and enforce educational standards. The suspension at issue is administrative in nature, and the impugned rules reasonably include no right to a hearing or right of appeal because lawyers are solely in control of complying with the rules in question at their leisure. Only they can end the suspension by complying with the requirements. Further, the rules permitting a suspension are not self‑applying. In addition to a lawyer’s common law procedural rights, the rules permitting a suspension expressly vest the chief executive officer of the Law Society with discretion to ensure that the effect of the Rules is not overly harsh. A lawyer’s failure to comply with the impugned educational rules, even after having been warned and given an opportunity to seek an extension, provides clear justification for the Law Society to impose a temporary suspension.

Dissent

In this case, the Law Society’s rule that members who fail to complete 12 mandatory hours of continuing professional development activities in a calendar year are automatically suspended is unreasonable, because it is inconsistent with the Law Society’s mandate to protect the public’s confidence in the legal profession. When a lawyer is suspended, so is public confidence in him or her. That is why the Law Society takes such care in its investigation of complaints regarding professional misconduct or incompetence — it helps ensure that a suspension is imposed only after at least some minimal procedural protections have been provided, and then only after a range of lesser penalties has been considered. When a suspension is the result of such a process, the loss of public confidence is warranted. Where, however, a suspension is imposed automatically for the least serious disciplinary breach possible — failing to attend 12 hours of classes — the Law Society is in breach of its duty to protect the public from the needless erosion of trust in the professionalism of lawyers.

The economic costs of the suspension are manifest, as are the reputational ones, especially since the rules require the chief executive officer to notify every member of the Law Society and each of the chief justices of the courts in Manitoba of the name of a member who is suspended. This is the only competence matter regulated by the Law Society that has no procedural protections, no range of remedies, and no discretionary leeway on the part of the chief executive officer, and it alone attracts an automatic suspension, regardless of justificatory circumstances. This makes it arbitrary. The absence of discretion, procedural fairness or remedial options stands in stark contrast to other provisions of the Act or Rules furthering the Law Society’s mandate to establish standards for the competence of lawyers. It also stands in stark contrast to the regulations, policies and by‑laws of the continuing professional development requirements of most other Canadian provinces and territories.

 The lack of discretion in this case is fatal. A rule that leads to an automatic suspension for failing to attend 12 hours of continuing professional development is so far removed  from ensuring the public’s confidence in lawyers that it is manifestly unjust, and therefore, unreasonable.

Legal Feeds reported on his recent retirement.

For his part, Sidney Green has decided to retire — at age 87, after 62 years of practising law that has included arguing successfully before the Supreme Court of Canada — rather than take mandatory CPD courses.
 
“I’m being forcefully retired,” Green told Legal Feeds. “But I have no intention of being required to go to a program which is of no value to me.
 
“The program was voluntary for many years; I participated for many years,” says Green, who practised mostly civil litigation. “I not only attended, I delivered presentations at these programs . . . But there was no legislation that empowered the law society to make the program compulsory, and there was no legislation which gave the law society the right to suspend an honest and competent lawyer because he didn’t go to a lecture.”
 
Unlike Ontario, for example, where continuing professional development is mandated in provincial legislation, Manitoba has no such legislation.
 
“There were several sections of [The Legal Profession Act of Manitoba] that permit the law society to suspend a member,” says Green. “In each case, the member is entitled to a hearing or an appeal. To my knowledge, I am the only lawyer in Canada who has been suspended by the law society without a hearing or without a right to appeal.
 
“I consider that I am being honorably discharged.”

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/04/the-law-society-in-this-case-the-law-societys-rule-that-members-who-fail-to-complete-12mandatory-hours-of-continuing-pro.html

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