October 30, 2016

Suspensions: Being a registrant means practicing as a registrant

Administrative Law
Professional Regulation

A regulatory body may suspend a registrant, only to have that registrant attempt to carry on some aspect of “practice” that non-registrants may carry out, purportedly as a non-registrant. May a regulatory body prevent suspended registrants from carrying out activities or services tat they might carry out if they were not registrants at all? One court has said “no”, at least with respect to a suspended lawyer, in the case of Law Society of Alberta v. Beaver, 2016 ABCA 290.

Mr. Beaver was a criminal defence lawyer who was suspended on an interim basis during an investigation, and a hearing was pending. While he was suspended, he began offering services as a “legal agent”. He clearly stated on his website tat he was not currently licensed to practice law. Alberta’s Legal Profession Act limited practice as a barrister or as a solicitor to active members of the Law Society, but the statute exempted persons permitted by statute to appear “as the agent of another person before a justice of the peace, the Provincial Court or a provincial judge….”

The Law Society obtained an injunction stopping Mr. Beaver from practising law by his acting as an agent. Mr. Beaver appealed. The Alberta Court of Appeal held, however, that suspended lawyers could not act as agents, as suspended lawyers remained members of the Law Society, and could not be both a “barrister and solicitor” and an “agent”. [20] The court also found strong public policy reasons for concluding that a suspended member could not be an agent:

“[21] … When a member of the public retains a barrister and solicitor on a matter with legal implications, the member of the public would reasonably assume that the person is acting in that role. It cannot be that for some matters, the person is a barrister and solicitor and for others, he or she is merely an agent. […] The reality is that, no matter the disclaimers given (and irrespective of their content and notification to the public), members of the public cannot reasonably be expected to understand the subtleties and nuances of the distinction…. ”

“[22] … The real likelihood of confusion arising in the minds of members of the public weighs heavily against an interpretation of the legislation that would allow any member of the LSA, much less a suspended one, to act as an agent. This would be particularly problematic where the member of the LSA is suspended.”

While the decision in the Beaver case is based on an interpretation of a particular statute, it refers to a public policy concern about suspended registrants being in a position to carry out acts that they would ordinarily carry out as registrants, but purportedly as non-registrants. Such a possibility might not only create confusion, but allow registrants to circumvent suspensions imposed by their regulatory bodies to protect the public.

Law Society of Alberta v. Beaver, 2016 ABCA 290

Lisa C. Fong and Michael Ng