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REGULATION OF PROFESSION - Professional and ethical standards

Tuesday, November 17, 2020 @ 6:43 AM  

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Appeal by Hughes from a determination by the respondent Law Society finding the appellant guilty of breaching the ethical conduct rules. The appellant, a 76-year-old long-standing member of the respondent, had permitted a female acquaintance to reside in his home. The arrangement did not work, and he asked her to move out. When she refused to return his key, a struggle ensued during which the female assaulted the appellant and he grabbed her purse. Because of the incident, the appellant was charged with assault and intimidation. To avoid a trial, the appellant signed a peace bond and the charges were withdrawn. The respondent commenced a disciplinary proceeding. The respondent concluded that the incident portrayed the appellant in an unfavourable light, that the laying of criminal charges and the issuance of a peace bond also portrayed him in an unfavourable light, and that combined, these circumstances reflected adversely upon the integrity of the profession and the administration of justice.

HELD: Appeal allowed. Some of the respondent’s findings were not supported by the evidence and were palpably wrong. The panel erred in finding that the appellant admitted he was involved in a domestic dispute and that he tried to prevent the female’s 911 call. As for the physical struggle, the uncontradicted and unchallenged evidence established that the female assaulted the appellant. Under no reasonable interpretation of the Conduct Rules could it be said that this situation constituted a violation of the principles of integrity or those that required a lawyer to encourage public respect for and to try to improve the administration of justice. Upon a proper determination of the facts, it could not be said that the actions of the appellant portrayed him in an unfavourable light as the panel had concluded. Since the panel’s characterization of the events was the product of palpable and overriding errors, in the absence of which the first of these conclusions was unsustainable, the conclusion could also not be sustainable. The fact the appellant voluntarily signed a peace bond, offered by the prosecution and recommended by his counsel, to avoid the inherent risks of a trial, did not constitute conduct deserving sanction. The uncontradicted evidence was that signing the recognizance was merely an agreed upon method of resolving the matter without any judicial determination of the allegations against the appellant. The panel failed to consider the facts leading to the signing of the peace bond. In these circumstances, it was inconceivable there would be negative public perception upon the integrity of the profession and the administration of justice.

Hughes v. Law Society of New Brunswick, [2020] N.B.J. No 237, New Brunswick Court of Appeal, J.C.M. Richard C.J.N.B. and B.V. Green and R.T. French JJ.A., October 8, 2020. Digest No. TLD-November162020003