Increasingly, regulators are being asked to deal with complaints that a practitioner made public statements without a reasonable basis for making them. Another example of this issue is found in Buckingham v. Law Society of Newfoundland and Labrador, 2022 NLSC 37 (CanLII), https://canlii.ca/t/jn3gz. In that case, a lawyer’s (“practitioner”) client died while in custody. Representatives of the correctional officers made public statements to the effect that the prisoner was the author of his own death and that the correctional officers had acted appropriately. The practitioner gave public statements to the media asking for a public inquiry indicating that the death was unusual and that it was “at the hands” of the correctional officers.
In response to a complaint, the regulator issued a letter of caution indicating that the practitioner did not have a sufficient basis for making those public statements, in part because they were made before the official finding that the death had been a homicide. The practitioner sought judicial review. The Court found that the reasons of the regulator for issuing the letter of caution were inadequate. In looking at all of the circumstances, including the public statements by the union and the context of calling for a public inquiry, the practitioner’s statements were not without reasonable basis. The degree of certainty the regulator was requiring of the practitioner to support their public statement was too high.