Q: I had a complaint about my lawyer. It went to discipline and the law society found him guilty of “conduct unbecoming,” whatever that is.
However, it seemed to me that he got a slap on the wrist. What does it take to stop someone from practising law when they shouldn’t be?
A: This is a complex question, with several dimensions.
First, there’s not enough detail to answer your question directly, but I can explain the guiding principles surrounding lawyer discipline.
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“Conduct unbecoming” denotes conduct of a lawyer that is inimical to the best interests of the profession and the public.
It covers a wide range of conduct, from writing an overly nasty letter to stealing clients’ money.
As with criminal law, there is a correlation between the seriousness of the conduct and the punishment.
A murder conviction results in life imprisonment, which is more than for a conviction for common assault. The same is true in professional discipline matters. Being rude to a client or another lawyer isn’t going to invoke the same sanctions as would a serious breach of trust.
Lawyers can expect to be treated fairly and reasonably, but provincial law societies owe an overriding duty to the public.
The main purpose of disciplining lawyers is not to punish the wrongdoer or obtain retribution but to protect the public, maintain high standards for the profession and preserve public confidence in the legal profession.
Sometimes, to achieve these goals, a lawyer must be sentenced. Integrity is central to a lawyer’s conduct and forms a part of every ethical rule to which a lawyer must adhere.
The highest form of disciplinary sentence is disbarment, which dis-entitles a lawyer to practice law. This is reserved for the most serious of transgressions.
An example frequently cited is stealing clients’ money from a trust account. Disbarment is the starting point or presumption, and only exceptional factors will allow a lawyer who steals money to continue practising.
However, law societies don’t always get it right and are sometimes criticized.
In Ontario, a lawyer named Mazzucco was recently charged with criminal counts involving allegations of misappropriation of clients’ funds. That matter has not yet gone to trial and he is presumed innocent.
The provincial law society has already paid more than $2 million in claims by former clients, and he was disbarred in November 2010.
The criticism comes from the fact that this same lawyer was suspended for 30 months in 2000 after a theft of $300,000 was discovered.
The principle behind the suspension was that it allowed the law society to monitor the lawyer upon his return to practice.
However, critics argue that the monitoring didn’t work or wasn’t performed properly. Also, he would not have had the chance to steal from clients if he had been disbarred the first time.
Many have said that a theft of that magnitude ought to have brought about disbarment rather than a lengthy suspension.
Practices vary from province to province and law society to law society, but the underlying principle of protection of the public interest remains the same.
When serious misconduct is suspected, one should contact another lawyer or your provincial law society for assistance.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
