Categorizing Misconduct

The concept that the definition of misconduct is important in discipline matters is illustrated by May v. Law Society of British Columbia, 2023 BCCA 218 (CanLII).

In that case, the registrant (a lawyer) had been found to engage in professional misconduct by being less than candid with the courts. In particular, the registrant had made statements about the location of the opposing party was inconsistent with the information known to him. There was also a finding of a lack of candour about the validity of a document that the registrant submitted to court after it was modified by his client. However, allegations that the registrant thereby failed to act honourably and with integrity, and had failed to cooperate with the regulator when investigating the matter, were dismissed. Both sides appealed.

The Court concluded that it was possible for the discipline panel to find that the registrant’s representations in court did not meet the dishonourable / lack of integrity definitions while still constituting professional misconduct because of the lack of candour. The former definitions “carry a taint of dishonesty, deception or immorality”. The latter does not require that level of intent and can involve failing to be sufficiently careful and complete when providing information to a court:

“In other words, the set of cases of a lack of candour is not a subset of the set of cases of dishonourable conduct or lack of integrity, although the sets may overlap. I conclude it was open to the Panel to distinguish between the fault of failing to act honourably and with integrity, and the fault of a lack of candour to the court.”

However, in a detailed and technical analysis, the Court did return two of the findings for reconsideration because the discipline panel may have confused certain civil court concepts – relating to when a court decision can be revisited because of inaccurate or incomplete information – with the definition of professional misconduct.

With respect to the allegation of failing to cooperate, the Court upheld the discipline panel’s conclusion that most of the information was not deliberately withheld, and the one item that was deliberately withheld was produced when the regulator made a follow-up request. The Court said:

“… the omission of this email string represented an error in judgment that, in context, did not rise to the level of a breach of the Rules or professional misconduct is a conclusion of mixed fact and law, and engages the discretion of the Panel. While the appellant’s conduct here certainly was an error in judgment in light of his significant obligation to cooperate in the investigation, his decision to shelter the email string from scrutiny was corrected in his following production of documents.”

The Court exhibited a high degree of deference to the discipline panel’s characterization of the registrant’s conduct.

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