Tuesday, January 31, 2017
I have found much to appreciate in my recent discovery of discipline web pages in Canada.
A recent decision from the Law Society of Upper Canada Hearing Division Tribunal (Malcolm M. Mercer ) converted a "conduct application" proceeding into a much less ominous-sounding "invitation to attend."
As you might suspect, invitation accepted.
The tribunal noted a culture issue relevant to its decision
We do not always really appreciate the nature and significance of our culture and practices, including legal practices. But when, for example, an Ontario lawyer sees the approach taken in some American jurisdictions, it becomes more obvious that we have our own legal culture and that legal cultures differ.
In this case, Mr. Chima had practised in Nigeria. He came to Ontario and was called to the Bar in 2010. He is now in his late 40s. When the events in question occurred, Mr. Chima had been in practice in Ontario for only a few years.
I had the opportunity to work with Mr. Chima and with Law Society counsel in pre-hearing conferences. As a result of that opportunity and the hearing before me, I concluded it was appropriate that a discipline order not be made in this case but instead that Mr. Chima be “invited to attend” for the purpose of “receiving advice … concerning his or her conduct” as authorized by s. 36 of the Law Society Act, RSO 1990, c. L.8 (the “Act”). The Law Society does not oppose such an order.
I reach this conclusion based on my finding that Mr. Chima’s conduct is explained in part by his prior practice in another legal culture. In my view, that played a role in how Mr. Chima chose to conduct himself and how he perceived the conduct of others. I considered it important that Mr. Chima took responsibility for his actions and that he was clearly willing to learn from his experience. Said simply, I concluded that advice for Mr. Chima was more appropriate than discipline.
The allegations involved two domestic relations cases
Mr. Chima is alleged to have engaged in sharp practice contrary to then Rule 6.03(3) of the Rules of Professional Conduct (the “Rules”) by proceeding with an uncontested hearing when he knew that the other side intended to contest it or, alternatively, by failing to contact opposing counsel before proceeding.
Rule 6.03(3) provided that:
A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights.
What is and what is not “sharp practice” depends on norms of practise. Despite rules of procedure establishing that default proceedings may be taken without notice in certain circumstances, it is considered sharp practice to do so when an intention to respond is known (see Law Society of Upper Canada v. Feldman, 2014 ONLSHP 6 (CanLII)). The second part of rule 6.03(3) is more explicit in its requirement of fair warning in the face of slips, irregularities and mistakes.
Underlying the prohibition against sharp practice is, at least in part, recognition that although procedural rules are intended to protect rights and ensure that legal disputes are fairly determined on their merits, their strict application can at times cause procedural and substantive unfairness. Lawyers, properly focused on their clients’ interests, must nevertheless recognize their obligations to the legal system.
The procedural posture
In Law Society of Upper Canada v. Desjardins, 2016 ONLSTH 79 (CanLII), the hearing panel discussed the approach to be taken when considering whether to convert a conduct application to an invitation to attend. As was observed, the Proceedings Authorization Committee (“PAC”) has the prosecutorial responsibility of deciding whether to authorize a conduct application, an invitation to attend, a regulatory meeting or other disposition including simply closing the file.
Significantly, PAC has access to and is entitled to consider information not ordinarily available to a hearing panel such as, for example, prior invitations to attend, other dispositions short of a discipline order and other outstanding investigations.
Given that PAC has the responsibility to decide how to proceed and may well have information unavailable to a hearing panel, hearing panels are not entitled to “second guess” PAC. That said, the panel may have the advantage of information and perspectives that were not available to PAC and, additionally, has a jurisdiction to be exercised.
In my view, I have the advantage of a perspective that was not available to PAC. I have the benefit of time spent with Mr. Chima in pre-hearing conferences and at the hearing and, significantly, can take comfort in the fact that the Law Society is unopposed to converting to an invitation to attend.
The attorney "attended" as invited and the conduct application was dismissed with $500 in costs. (Mike Frisch)