Usurping the Role of the Courts?

Regulators sometimes address conduct by practitioners that are also being addressed by the courts. For example, a practitioner can be disciplined for sexual abuse and can also be subject to criminal proceedings and a civil cause of action for damages in relation to the same conduct. It is generally understood that the various proceedings have different purposes and there is concurrent jurisdiction. Do the same principles apply where the dispute is overbilling by a practitioner and compliance with a related court order? According to Chijindu v. Law Society of Ontario, 2021 ONSC 4872 (CanLII),, the answer is yes.

In that case, the practitioner billed a client for recovery of client money that had been misappropriated by others. The practitioner kept more of the recovered money than had been specified in the retainer agreement. The client brought proceedings against the practitioner and a court ordered repayment of most of the funds. Rather than repaying the money to the client, the practitioner rendered new invoices that were alleged to have been false and misleading. The regulator then disciplined the practitioner for failing to comply with the court order, keeping client money that the practitioner was not entitled to, and rendering false accounts. The practitioner’s licence was ultimately revoked.

On appeal from the discipline proceedings, the Divisional Court upheld the findings. With respect to the issue of whether the disciplinary process can address billing issues or non-compliance with court orders, the Divisional Court said:

The inquiry undertaken at the hearing division was whether fees charged were fair and reasonable, or contrary to Rule 3.6-1 of the Rules of Professional Conduct, and, as noted, the hearing division was empowered by the legislature to determine any question of fact or law before it. Accordingly, we conclude that it was not an abuse of process for the hearing panel to determine whether the fees were fair and reasonable.

Similarly, the Divisional Court did not agree that breaching a court order could only be enforced by a contempt of court proceeding; a regulator could also view that behaviour as constituting professional misconduct.

The Divisional Court also upheld the sanction of revocation, finding that the conduct was dishonest, a breach of trust analogous to misappropriation of client trust funds, and constituted a disregard for the law, inconsistent with the practitioner’s status as a lawyer.

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