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REGULATION OF LEGAL PROFESSION - Disciplinary procedure - What constitutes misconduct - Appeals

Friday, March 02, 2018 @ 8:42 AM  

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Appeal by Johnson from a Law Society Review Board decision affirming a finding of professional misconduct. The appellant was a defence lawyer disciplined for using profanity in a courthouse hallway. The incident involved an interaction between the appellant and a police officer serving as a potential Crown witness in a domestic assault case in which the appellant acted for the accused. A verbal dispute escalated to the point that the two men were nose-to-nose, at which point the constable arrested the appellant for assault. The Crown declined to approve any charges. A Law Society panel unanimously found that the appellant's use of profanity constituted professional misconduct. The panel divided over the issue of provocation, and its availability as a defence. The appellant sought review of the decision. The Review Board's majority found that provocation was not a defence to an allegation of professional misconduct, but was a factor for consideration in whether such misconduct had occurred. Although the appellant's profanity in response to having his character questioned was understandable, it was not excusable. The Review Board's dissent found that the appellant's wrongful conduct was excusable. Johnson appealed.

HELD: Appeal dismissed. The Review Board's internal standard of review was one of correctness. It was apparent from the majority's reasons as a whole that its decision was based on an independent assessment of the facts and application of the required correctness standard. The Review Board's analysis was not categorical or conclusory in its approach, and met the reasonableness standard in the context of a professional discipline body. The decision reflected all of the circumstances, including the constable's inappropriate behaviour and its effect on the appellant. The finding that the appellant's use of profanity constituted a marked departure from the appropriate standard of conduct was within the range of acceptable and defensible results.

Johnson v. Law Society of British Columbia, [2018] B.C.J. No. 178, British Columbia Court of Appeal, S.D. Frankel, J.E.D. Savage and J.J.L. Hunter JJ.A., January 29, 2018. Digest No. TLD-February262018012