Single Act, Double Fault

A basic principle is that a person should not be punished twice for the same fault. However, that principle tends to be applied quite narrowly in the disciplinary context. In McLeod v. Law Society of British Columbia, 2022 BCCA 280 (CanLII), https://canlii.ca/t/jrdx3 a lawyer was disciplined for a number of matters related to behaviour during litigation, including bringing proceedings without a basis to find counsel on the other side in the litigation in contempt of court and to remove them from acting on the matter because of an alleged conflict of interest. The discipline tribunal made only one finding to avoid a result where there would be two findings for the same fault (a circumstance that is contrary to the so-called Kienapple principle). On appeal, the Court found that two findings were permissible. Even though the findings were made for the same action (bringing the proceedings) and were founded on the same definition of misconduct, there were two different aspects to the findings. The first aspect was misusing the court process. The second aspect was inappropriate conduct towards a colleague.

Where an act of misconduct has two aspects to it, two findings can be made.

The Court also dealt with the issue of whether a court file should be sealed as it contained disclosure of client communications with their lawyers and identified the parties in a family breakup matter where there was an allegation of sexual abuse of a family member. Despite the fact that the identities of the participants could be discovered by searching other public records, the Court directed the sealing of portions of the court file. However, the order was tailored so as to permit the public to follow the essence of the proceedings. In particular, the regulator was required to refile the Appeal Book redacting the identifies of the family members and most of the legal advice provided to clients.

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