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REGULATION OF PROFESSION - Disciplinary procedure - What constitutes misconduct

Monday, December 02, 2019 @ 9:17 AM  

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Appeal by a solicitor, Howe, from a decision by a Disciplinary Panel of the Nova Scotia Barristers' Society. The appellant was a sole practitioner who focused on criminal defence matters. He was called to the bar in 2009. Between 2010 and 2011, the Society received five complaints against the appellant. Following investigation and a practice review, and further complaints from a Provincial Court judge, the Public Prosecution Service, and clients, the Society charged the appellant with professional misconduct and incompetence in May 2015. A hearing into the appellant's conduct commenced in December 2015 and lasted 18 months, with 66 hearing days. In July 2017, the Panel rendered a decision. The Panel found that the appellant was dishonest before the Court, made misrepresentations, showed a lack of candour, failed to properly investigate client files, and failed to recognize conflicts of interest. The Panel concluded that the appellant's behaviour constituted professional misconduct and professional incompetence. In October 2017, the Panel disbarred the appellant from the practice of law with no entitlement to apply for readmission for five years. Any application for readmission required repayment of $150,000 in costs to the Society. The solicitor appealed. In addition to challenging the merits of the sanctions imposed, the appellant raised issues alleging violations of his s. 15 Charter rights arising from racial discrimination, procedural unfairness, and a reasonable apprehension of bias.

HELD: Appeal allowed to limited extent. The Panel did not err in finding no breach of the appellant's s. 15 Charter rights. The Panel properly identified the legal test under s. 15 of the Canadian Charter of Rights and Freedoms (Charter) and carefully considered the appellant's allegations of unequal treatment. The Panel's factual findings supported its conclusion that race was not a factor that led to or permeated the disciplinary proceedings, and that the individuals acting on the Society's behalf were not racially biased. The Panel did not err in law or act in a procedurally unfair manner by refusing to recuse a member based on bias. The fact that the member at issue was a member of the criminal bar who possibly stood to benefit from the discipline of the appellant did not rebut the presumption of impartiality. The Panel's decision did not involve a failure to consider or a misapprehension of material evidence. No misinterpretation of the Code of Conduct was established. The sentence imposed was not unfit and unjust. The Panel appropriately recognized the impact of systemic, actual and historical racism as a mitigating factor and found no causal connection to the appellant's misconduct. Disbarment was the only appropriate remedy given the nature and gravity of the proven charges. The Society consented to removing the repayment of costs as a condition to the appellant's application for reinstatement.

Howe v. Nova Scotia Barristers' Society, [2019] N.S.J. No. 448, Nova Scotia Court of Appeal, D.P.S. Farrar, J.W.S. Saunders, L.L. Oland, J.E. Fichaud and P. Bryson JJ.A., October 24, 2019. Digest No. TLD-December22019001