Monday, September 28, 2020

"A Clear Breach Of Natural Justice"

A Hearing Panel of the British Columbia Law Society ordered a de novo hearing in a matter where the attorney had not attended the scheduled hearing. 

The two citations

On or about December 31, 2015, you assaulted CC, and on or about November 9, 2016, you pled guilty to assault causing bodily harm on CC...

Between approximately March 2013 and December 31, 2015, when you represented CC in family law proceedings, you acted in a conflict of interest contrary to one or more of the rules 3.4-26.1, 3.4-28 and 3.4-34 of the Code of Professional Conduct for British Columbia because you:

(a)         were in a personal romantic relationship with CC from approximately April 2012 until December 31, 2015; and

(b)        loaned funds to CC between approximately May 2013 and October 2014, without ensuring CC had independent legal advice regarding the loans.

Neither the attorney or his counsel appeared to defend the charges

Ultimately, the failure of the Respondent or his Former Counsel to attend the hearing resulted in the Decision being made by the Panel based on the evidence before it and with no input from the Respondent.  His right to be heard at the December Hearing was breached, even though both parties agreed that the Panel did not err in proceeding based on the information they had available at the time.

But

What is clear is that Former Counsel confirmed he did not advise the Respondent about the December Hearing or about the hearing proceeding in the absence of either the Respondent or Former Counsel, as he was “unable to deal with it.”  He stated unequivocally the Respondent was “entirely blameless” for the failure to attend the December Hearing. [Exhibit “T” to Ranspot affidavit]

He then sought (and was granted) relief

This Panel has determined that a clear breach of natural justice occurred due to the procedural defect of the Respondent, through no fault of his own, not being given the opportunity to speak to his citation.  The Respondent was hoping to resolve this matter without the need for a full hearing.  That option was taken away from him by the actions of Former Counsel resulting in an adverse decision that made it appear the Respondent did not care enough to attend his hearing.

This defect renders the Decision a nullity.  Accordingly, we accede to the Respondent’s application to set aside the Decision.  By setting aside the entire Decision, the option of a resolution remains open to him or it allows a new panel to consider the matter afresh, with whatever material or evidence the Respondent wants to put before a new panel.

Further, we find that this Panel is not seized and order a hearing de novo before a new panel.

(mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/09/a-hearing-panel-of-the-british-columbia-law-society-between-approximately-march-2013-and-december-31-2015-when-you-represe.html

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