Monday, July 13, 2020

In-Person Hearing Request Granted

A decision of the President's Designate of the British Columbia Law Society grants a request for an in-person discipline hearing despite the pandemic

   As Rule 4-40 only governs adjournments, I will treat the Respondent’s request for an in-person hearing as a Rule 4-36 application as suggested by the Practice Direction.

The Law Society consents to an in-person disciplinary hearing.  Based on that consent, I hereby order that the Respondent’s upcoming disciplinary hearing be held in person.  This order is subject to Rule 5-6, which provides that the hearing panel may determine the practice and procedure to be followed at the hearing.  I expect that that will include appropriate measures to ensure that the hearing can be conducted safely in the conditions that prevail at the time of the hearing and to comply with legal requirements and best health practices. 

If the Law Society had not consented, I would have dismissed the Respondent’s application for an in-person hearing.  The Respondent’s submissions were not persuasive and, in my view, did not respect the goals of the Practice Direction or the realities of a global COVID-19 pandemic.

The Respondent’s submissions focused on the overriding dislike and inconvenience of Zoom videoconferencing.  The submissions argued that the use of videoconferencing is a miscarriage of justice, a breach of natural justice and a breach of procedural fairness and only an in-person hearing could resolve all those issues.

It is clear from the submissions that counsel for the Respondent, rather than the Respondent, is driving this application.  Here are some excerpts from the submissions:

When I agreed to be counsel last fall I did so based upon the rules that have existed since I started doing these type of hearings [sic] in 1982 as an articling student … I would not have agreed to be counsel to become a computer advocate …

As a professional lawyer since the pandemic hit our justice system I have had to compromise my professionalism, I have had to make submissions to a telephone to Courts … I consider the move to zoom hearings for disciplinary hearing to be a considerable change in the rules and not something which permits me as counsel to do the proper professional job for the client.

 It was disappointing to read these submissions.  COVID-19 has inconvenienced us all.  We must adapt and change, but most importantly, we must do so in a manner that protects our clients’ health and safety as well as the health and safety of those who participate in the administration of justice, including court reporters, staff, visitors, witnesses, lawyers and panel members.  In my view, it is not a miscarriage of justice, a breach of natural justice or a breach of procedural fairness to require that all parties attend a disciplinary hearing by videoconferencing during a global pandemic with no vaccine in sight.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/07/the-of-the-british-columbia-law-society-has-granted-a-request-for-an-in-person-discipline-hearing-as-rule-4-40-only-governs.html

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