A recent Alberta Court of Appeal case addressed how regulators think about dishonesty allegations against practitioners, the use of mental health evidence in determining liability, and sanctioning based on the parity principle.
In Virk v Law Society of Alberta, 2022 ABCA 2 (CanLII), https://canlii.ca/t/jlmgd, a lawyer was disbarred for engaging in a conflict of interest and dishonesty when he concealed and denied a past sexual affair with the ex-wife of a client. The lawyer represented his client in a paternity and spousal support lawsuit. Virk clarifies that conflict of interest and dishonesty allegations can overlap or be separate depending on the facts. As in Virk, an overlap need not vitiate a sanction on both allegations.
More importantly, Virk clarifies that the threshold for finding dishonesty is low because intention to deceive is not required. However, being negligent or making a mistake that results in an inaccurate statement will not engage a misconduct finding. Instead, Discipline Committees can find misconduct where a practitioner has been wilfully blind, reckless, indifferent, or irresponsible towards stating inaccuracies. Regardless of their field of practise, practitioners must diligently check the truth of their statements and be forthcoming and frank when unsure about the truth.
The expectation for practitioners to be honest also depends on context. This expectation is reasonably higher for solemner occasions. In Virk, the same lawyer falsely stated in court that he made full disclosure when he had not. His duty to be candid was high given the formality of the court context. Practitioners must therefore consider the impact of their statements on clients when reflecting on how meticulous they should be in their fact-checking and whether they should speak up when carrying out their duty to be honest.
Virk also encourages regulators to think about how to consider dishonesty allegations where the practitioner argues inculpability due to a mental disorder. As Virk indicated, the medical evidence must be strong and, more importantly, material to the alleged misconduct to justify reduced blameworthiness.
Regulators will also find Virk’s approach to sanctioning thought-provoking. Virk emphasizes a case-by-case approach to determine appropriate order and notes that “comparison with other decisions is rarely decisive.” As Virk explains, the need to restore public confidence in the profession and protect the public varies by case. For Ontario regulators that usually apply the parity principle by identifying the most directly comparable prior case to determine appropriate sanction, Virk advocates a less rigorous approach. Perhaps a strong consideration for regulators is a balanced approach to sanction that contemplates prior cases and the unique circumstances of the case at hand.