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REGULATION OF PROFESSION - Law societies and governing bodies - Disciplinary proceedings - Disciplinary procedure - Proceedings before the law society - Evidence - What constitutes misconduct

Thursday, April 27, 2017 @ 8:30 AM  

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Appeal by Foo from a disciplinary decision of the Law Society of British Columbia, finding him guilty of professional misconduct and suspending him from the practice of law for two weeks. In the hallway of a courthouse, Foo told a social worker, whom he did not know, that he “should shoot” her because “she takes away too many kids”. Foo claimed that what he said to the social worker was in jest and that she responded with a laugh and a request that Foo handcuff her. Others who overheard the exchange reported that Foo was attempting to be funny. The social worker took Foo’s words as a threat and indicated that she had since stayed away from Foo. The disciplinary panel found that, even if Foo did not intend to intimidate or threaten the social worker, he was irresponsible and did not consider the impact his words might have in an emotionally charged atmosphere where parents were in conflict with the Ministry that employed the social worker and where others outside the courtroom could overhear the comments. The panel considered the social worker’s belief that the comments were not a joke to be reasonable. In imposing the suspension, the panel considered Foo’s professional conduct record, which included a previous citation and three conduct reviews, and his lengthy career practicing in child custody matters, to be aggravating factors. It did not consider a reprimand and the negative publicity that Foo had received sufficient to penalize Foo, given his history of failing to control his conduct. The suspension was imposed to give Foo an opportunity to critically examine his behaviour and to commit to a course of action to change it. On appeal, a seven-member review panel was unpersuaded that Foo intended his comments to the social worker as a joke and declined to interfere with the sanctions imposed by the disciplinary panel. The review panel found Foo lacked the common sense necessary to appreciate that the context, circumstances and timing of his comments were profoundly wrong. The review panel determined that Foo’s behavior constituted a marked departure from the standard that the Law Society expected from lawyers and found that Foo’s comments were not constitutionally protected free speech, given that the practice of law was a privilege, not a right. It found that restricting freedom of expression by finding Foo guilty of professional misconduct did not impede a lawyer’s duty to speak his mind, with dignified constraint.

HELD: Appeal dismissed. The marked departure test utilized by the review panel was not unconstitutional. The Law Society was best positioned to determine what constituted professional misconduct in any particular case. There was never any agreement that Foo’s comments were made in jest, as he claimed. There was no evidence presented to prove that he was simply making a joke. It was reasonable for the disciplinary panel and review panel to find that Foo’s comments, made in the courthouse where they could be construed as threatening to a female with whom he was not acquainted, constituted professional misconduct. Given Foo’s disciplinary record, his age and experience, the need for specific and general deterrence, and the impact the suspension would have on Foo, the sanction imposed was reasonable.

Foo v. Law Society of British Columbia, [2017] B.C.J. No. 705, British Columbia Court of Appeal, S.D. Frankel, H. Groberman and G. Dickson JJ.A., April 11, 2017. TLD-Apr242017010