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BARRISTERS AND SOLICITORS - Breach of duty - Conduct unbecoming - What constitutes

Monday, October 07, 2019 @ 9:27 AM  

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Appeal by Kapoor from a finding by a hearing committee of the Law Society of conduct unbecoming a member. While representing a client charged with driving while disqualified, the appellant requested a non-suit on the basis the Crown had failed to prove an essential element of the offence. He referred to case law to support his argument but did not mention a case that was contrary to the position for which he was advocating. The trial judge ruled against him on the point at issue. The committee found the appellant failed to bring relevant and adverse case authority to the attention of the trial judge. It found the appellant had made a deliberate decision that was a breach of his duty of candour. It ordered the appellant to pay $6,192 in costs including $4,560 for the time spent by counsel for the conduct investigation committee who prosecuted the charge at a rate of $200 per hour.

HELD: Appeal dismissed. It was not unreasonable for the hearing committee to conclude that a failure to bring relevant and adverse but non-binding case law to the attention of the court was capable of being a breach of the duty of candour and fairness and thereby constituted conduct unbecoming a lawyer. The committee’s conclusion that the appellant’s failure to bring the case law to the trial judge’s attention was a breach of his duty of candour was reasonable. The costs award was reasonable. The appellant had not established the hourly rate charged by the prosecutor was unreasonable.

Law Society of Saskatchewan v. Kapoor, [2019] S.J. No. 315, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R. Leurer and B. Barrington-Foote JJ.A., August 30, 2019. Digest No. TLD-October72019002