Focus On

REGULATION OF THE PROFESSION - Disciplinary procedure - Proceedings before the law society

Wednesday, May 26, 2021 @ 6:24 AM  

Lexis Advance® Quicklaw®
Appeal by the Law Society of British Columbia from a judicial review judgment quashing a decision by the society’s executive director with related relief. The respondent was an unnamed lawyer. The Law Society issued a citation against the lawyer for professional misconduct arising from taking fees from a client’s trust without entitlement and taking fees that were unreasonably high or were not properly charged to the client. In a separate proceeding, a judicial review court found that the lawyer was permitted to take fees from the trust without seeking prior court approval. The question as to the reasonableness of fees charged was referred for assessment. Prior to that determination, the lawyer asked the director to publish the professional misconduct citation anonymously to protect his professional reputation while he challenged the merits. The director declined on the basis that the discretion to anonymize the citation was only exercised in rare and exceptional circumstances, which were not present in this instance. The lawyer sought judicial review. The chambers judge found that the director’s decision was unreasonable. The judge quashed the director’s decision and issued an order of mandamus restricting the director from publishing the lawyer’s name. The Law Society appealed.

HELD:  Appeal allowed in part. For different reasons than those found by the chambers judge, the director’s decision was unreasonable. The judge exceeded the review role of determining the reasonableness of the director’s decision by establishing the appropriate test for anonymization, and in substituting her own assessment of relevant factors in making the mandamus order. Nonetheless, the director’s decision was unreasonable due to the director constraining the exercise of discretion by applying an unwritten policy that was unavailable to the lawyer and other members without adequate explanation, justification or transparency. The remedy of mandamus was inappropriate, as the judge should have remitted the matter to the Law Society for reconsideration in keeping with its legislative purpose as the designated decision maker.

Party A v. Law Society of British Columbia, [2021] B.C.J. No. 600, British Columbia Court of Appeal, E.A. Bennett, G.B. Butler and J.C. Grauer JJ.A., March 29, 2021. Digest No. TLD-May242021003