March 18, 2015

Discipline: Sufficiency of warning and the meaning of “conduct unbecoming”

Administrative Law
Professional Regulation

The standard for the extent to which a regulatory body must provide particulars in “charges” is not as demanding as in the case of charges in criminal matters. This was recently affirmed by the Saskatchewan Court of Appeal in Hesje v. Law Society of Saskatchewan, 2015 SKCA 2, where a lawyer was disciplined for “conduct unbecoming” a member, due to his failing to keep his client reasonably informed about the status of a defamation claim against his client. The question of adequate warning requires only that a respondent be “aware of the case he has to meet – rather than exclusively focusing on the charge itself”. [50] Accordingly, “procedural fairness will only be violated by inadequate particulars if the member is deprived of knowledge of the facts alleged to constitute misconduct, and is therefore deprived of knowledge of his case to meet.” [51]

The court also rejected the member’s defence that an isolated incident of carelessness, arising from a decision made honestly and in good faith, should not result in disciplinary proceedings, as the statutory definition for “conduct unbecoming” a member did not require “moral turpitude”. The member failed to provide “a quality of service equal to that which lawyers generally expect of a competent lawyer in a like situation”. [20]

Notably, the court rejected the member’s argument that the Law Society had failed to lead any evidence about what the profession would generally expect of a competent lawyer in a like situation. [70-72] However, regulatory bodies in other provinces, such as British Columbia, should apply this approach with caution. Many cases support the idea that unless a particular professional standard has been codified, or is an obvious and therefore uncontroversial one (e.g., that health professionals should not have sexually touch patients), the better course may be for parties to tender expert evidence of a professional standards, so that the evidence is on the record for any review court, and may be tested explored by the parties and the panel through questioning.

Hesje v. Law Society of Saskatchewan, 2015 SKCA 2

Lisa Fong and Michael Ng