September 25, 2013

Fitness and the ungovernable member

Administrative Law
Inquiry and Investigations
Professional Regulation
Registration and Fitness

Entry requirements of “good character” and “fitness” are clearly malleable. They consist of equally difficult concepts like honesty, integrity, and trustworthiness, and they turn on cultural and social expectations about which people differ. Yet good character and fitness requirements persist because they express traits and “soft” skills, however ill-defined, as essential to a profession’s functioning as the more definable “hard” skills of its members. The importance of fitness can become clear when a lack of fitness become evident in a disciplinary context. For example, a registrant may commit a criminal act exposing a professionally-catastrophic character trait. A registrant may also commit “lesser” acts yet expose “deal-breaking” character flaws when evading investigation.

Unfitness in the form of dishonesty that makes a registrant “ungovernable” was found in Law Society v. Hammoud, [2013] L.S.D.D. No. 97 (“Hammoud 2” or “#2”), a penalty decision of the Law Society of Alberta. A discipline panel disbarred a student-at-law after finding (in Law Society v. Hammoud, [2012] L.S.D.D. No. 253 (“Hammoud 1” or “#1”)) that he had repeatedly misdescribed, or failed to disclose, past events to the Law Society or to its investigators.

The respondent’s past: As later determined by the discipline panel, the respondent had been involved in the following criminal or other misconduct matters:

1. While a law student (and not enrolled with the Law Society), the respondent assaulted a professor, Dr. P, and pleaded guilty to a criminal charge of assault. He was sentenced to probation and community service, but had his probation period extended for his failing to complete his community service hours.

2. In 2006, when he later applied as a “student-at-law” with the Law Society [#1-1], he had to disclose details of the event (with Dr. P) and his breach of order. When his proposed articling principal withdrew, and withdrew his student application.

3. In 2008, he again applied to be a student-at-law, and again had to disclose details of the event (with Dr. P) and his breach of order. He entered into articles with Mr. I. However, after several months, Mr. I terminated his employment. The respondent had assaulted Mr. I, although Mr. I did not disclose at the time.

4. In mid-2009, the respondent began his bar admission course (CPLED), but became involved in several incidents of rudeness and use of profane language with CPLED staff. CPLED staff reported his conduct to the Law society and eventually suspended him from the course.

5. In late 2009, an incident with his parents and sister led to his being charged with assault and uttering threats.

6. In early 2010 he was charged with trafficking in cannabis and obstructing a Police officer.

A lack of candour: The Law Society commenced an investigation of the incidents with CPLED staff, the family incident and the trafficking and obstruction charges. [77] The respondent provided accounts of events that significantly differed from accounts of others and minimized his own involvement or fault. [#1-78-80]

The Law Society issued a citation for certain conduct issues, including his lack of candour. The candour issues involved the two applications to become a student-at-law [#1-184 and 190]; his failure to report criminal charges to the Law Society [#1-226]; and his failure to be candid during investigation about (among other matters) his assaulting Dr. P [#1-190], his assaulting Mr. I [#1-194], and his misdescribing a super­vision arrangement that violated Law Society require­ments. [#1‑195; 221]

Policy issues: The hearing panel described the primary purposes of disciplinary proceedings as protecting the public (including members), e.g., by preventing the recurrence of misconduct, and protecting the standing of the profession generally (including its reputation and the public’s confidence in the profession). [#2-36 and 38] Sanctions should turn more heavily on factors relating to these purposes. [#2-41] Accordingly, one important factor was the need to deter lack of candour by students-at-law [#2-43]: “A message needs to be sent… that every applicant must be candid with their regulator and with other lawyers and must comply with the Rules of the Law Society from the moment they apply to practice.”

An underlying governability issue: Although the panel found other misconduct by the Respondent, the central issue integrity, and therefore fitness to practice, arose from the candour issues:

“[45] …a person either is or is not honest, and possesses or does not possess integrity. […] The Member has demonstrated his lack of professionalism and lack of integrity as a student and it is sufficient to make it clear that he is unsuitable to practice law and will not enhance the profession in any way.” (emphasis added)

The panel decided the system in which the member was to operate could not function, with, and the Law Society could not govern, someone lacking in integrity:

[47] The Member generally acts from his own self-interest. He says what he says and does what he does at any given time to achieve his personal goals. The public cannot be protected from a lawyer whose primary goal is to do what is in his own best interests. […]

[50] He does not tell the truth if it does not suit him. If challenged he offers that the truth is how he sees it based on his version of reality. Imposing trust conditions on this Member would be ineffective. (emphasis added)

The Panel concluded the Respondent “is not governable” [#2-60] and terminated his registration. [#2-81] The Panel recognized the Member “has not yet had an opportunity to display: ‘the very worst conduct engaged in by the very worst lawyers.’ However, the absence of the worst sort of conduct “does not mean that the Law Society is obliged to wait for it to happen.” [#2-79]

The scenario addressed by the Law Society illustrates the importance of fitness, and how its lack may be revealed not by an applicant’s or registrant’s past conduct, but how he may attempt to evade responsibility.

Law Society v. Hammoud, [2013] L.S.D.D. No. 97, a penalty decision decided after a verdict decision at [2012] L.S.D.D. No. 253.