Monday, January 29, 2018

Almost Ungovernable

A Hearing Committee of the Law Society of Saskatchewan concluded that an attorney's pattern of bar complaints and failure to respond warrants suspension 

Counsel [for the Conduct Investigation Committee] noted that a number of the complaints in this history include allegations of failure to respond to the Law Society in a timely way or at all; there are also allegations of unreasonable and unexplained delays in other aspects of his practice, and of dilatory practice. Counsel provided the Hearing Committee with copies of the decisions of the hearing committees that dealt with all of these complaints...

As we have said earlier in this decision, there is no evidence that the previous pattern of complaints and disciplinary sanctions has made a genuine impression on the Member. Indeed, this pattern and his arguments before this Hearing Committee suggest that he considers these interactions with the Law Society as part of the cost of doing business. Though counsel for the Conduct Investigation Committee did not press us to draw a conclusion that the Member should be considered ungovernable, our view is that the disciplinary record in this case is strongly suggestive of a trend in that direction, and that only robust sanctions have any hope of attracting the attention of this Member.


Were this a matter of dealing with a single charge of failing to reply promptly to the Law Society, the task of determining an appropriate penalty might be a fairly straightforward one, resolved by consulting similar prior instances of law Society disciplinary proceedings and choosing an analogous case. What creates a challenge for the Hearing Committee in this case is the lengthy and extensive disciplinary history of this Member, including examples of similar allegations to the one made here.

 This is the seventh occasion on which the Member has been before a hearing committee, and the penalties imposed on him have ranged from a suspension held in abeyance to permit him to receive practice management advice, to fines of various sizes, to suspensions for periods as long as 6 months.

A reading of the decisions relating specifically to the offence of failing to respond promptly to the Law Society reveals a pattern of successive requests for a response from the Law Society, perhaps a request for an extension of time to reply (always granted), further requests for a response, an indication by the Law Society of an intention to refer the matter to discipline, and, in nearly all cases, an ultimate response from the Member. In his submissions before disciplinary bodies, the Member has always downplayed the seriousness of this pattern of interaction with the Law Society, noting that while they may technically be a violation of the Code, it has caused no harm to clients and is thus at the "lower end" of the professional misconduct spectrum.

In the first disciplinary decision concerning this Member, which addressed a total of eight charges (including one of failing to respond to the Law Society), the sentencing body decided on a three-month suspension, along with a $3,000.00 fine and costs; the suspension was held in abeyance pending successful completion of professional standards programming. By the third disciplinary proceeding, which also included seven separate counts of failure to respond promptly to the Law Society, the penalty was escalated to a 6-month suspension, with practice supervision conditions, as well as costs.  The fifth time the Member faced a hearing committee, in 2013, a suspension of 30 days was imposed, despite the mitigating factors of an unexplained delay and the absence of any infractions after 2008; without those mitigating factors, it is Impossible to assess what sanction might have been considered appropriate. In the most recent disciplinary proceeding, in 2017, a 3-month suspension as well as a fine and costs, was considered appropriate. In all cases, the Law Society bodies responsible for sentencing the Member appear to have carefully considered the appropriateness and proportionality of the sanctions they imposed, and to have paid careful attention to the factors put forward by the Member. Those decision-makers seem to have taken seriously the principle of progressive discipline in calibrating their response to the Member's breaches of the Code.

 It is clear, however, that none of the sanctions devised by previous disciplinary panels has brought about lasting change in the conduct of the Member. Counsel for the Conduct Investigation Committee seemed at somewhat of a loss to provide guidance to this Hearing Committee about what sanctions would be appropriate, and we share his pessimism that any sanction we could impose, other than perhaps disbarment, would impress on the Member the seriousness of the pattern of successive infractions he has established. We also share the concern of counsel, so well-articulated in the Walsh decision, that the apparent inability of the Law Society to regulate the conduct of this Member has the capacity to undermine the credibility of the Law Society, and possibly also the legal profession, in the eyes of the public.

  It must be remembered that the principle of progressive discipline is founded on the notion that a person whose conduct is considered unacceptable should be given an opportunity to modify the impugned behavior and pursue a new course. If this does not have the desired effect in the first instance, a more stringent sanction is applied in order to persuade the offending party that there is indeed a need to change. This idea is based on a faith in the potential for rehabilitation of people who have broken the rules, but there will always be cases where this proposition is in doubt. The idea of progressive discipline cannot be seen as a strait jacket for disciplinary proceedings. It is necessary for those responsible for formulating a disciplinary regime in a particular case to be able to look critically at the likelihood of redemption. The Member's own submissions, suggesting as they do that he still has difficulty understanding the seriousness of the law Society's concerns, are discouraging in this respect.

We are in agreement with counsel for the Conduct Investigation Committee that the disciplinary record of the Member is an aggravating factor that elevates the seriousness of a breach of the Code which might be treated fairly leniently on a first offence. We also agree that there are no mitigating factors in this case; the Member himself acknowledged before us that it had been an error on his part not to respond to the Law Society Auditor more promptly. We have come to the conclusion that it is necessary for us to impose a significant sanction in light of the obliviousness shown by the Member to the gravity of the message previous hearing committees have been trying to convey to him.


This Hearing Committee has determined that the Member should be sentenced to a suspension of 6 months, a fine of $40,000.00 and costs in the amount of $1,865.00.

We acknowledge that this set of sanctions is a considerable escalation from previous disciplinary penalties imposed on this Member. We have concluded, however, that the only hope of convincing the Member of the significance of the regulatory regime which governs his conduct as a lawyer is to impose sanctions which may have a greater impact on his thinking than previous penalties apparently have. The primary objective of the Law Society is the protection of the public, and it is impossible for it to do this effectively if lawyers who fall under its jurisdiction refuse to treat its regulatory system with respect.  The insistence of the Law Society on timely and complete response from its members is not merely a technical rule which members are justified in slighting but is a fundamental aspect of a framework which is designed to ensure that the public can have confidence in the soundness of professional services provided by Saskatchewan lawyers.

Though counsel for the Conduct Investigation Committee drew back from using the label "ungovernable" to describe the record of this Member and did not argue that disbarment was an appropriate penalty in this instance, our own view is that any future infractions would make it necessary for a hearing committee to think in those terms.’

(Mike Frisch)

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