Part IX – Discipline Rules

Definitions

9.01 In this Part,

(a) “allegation” means a written document alleging that a respondent has engaged in conduct deserving of sanction;

(b) “chairperson of the disciplinary panel” means an honorary bencher appointed by the benchers under subsection 42(4) of the Act or his or her designate;
(Rule 9.01(b): Amended Fall Term Convocation, October 6, 2008)

(c) “complainant” means a person making an allegation;

(d) “conduct deserving of sanction” includes

(i) professional misconduct,

(ii) failure to maintain the standards of practice,

(iii)conduct unbecoming a member of the society,

(iv) acting in breach of the Act or the rules, and

(v) failing to adhere to the Code of Professional Conduct, whether or not that conduct relates to the respondent’s practice as a barrister and solicitor or as a student, and whether or not that conduct occurs in the province;

(e) “mediation” as referred to in the Act and the rules shall generally refer to alternative dispute resolution and shall include processes for resolving disputes other than those formal procedures used by the society under Part II of the Act. Mediation may include formal mediation using a neutral third party or informal means.

(f) “mediator” as referred to in the Act and the rules shall be either a representative of the society or, if the society is a party, a neutral third party.

(g) “respondent” shall have the meaning ascribed thereto in section 41(f) of the Act.
(Amended: Rule 9.01(g), Summer Term Convocation, June 10, 2005)

(h) “vice-president” means the vice-president of the society or his or her designate.
(Amended: Rule 9.01(h), Summer Term Convocation, June 6, 2003; Rule 9.01(b)&(d), Summer Term Convocation, June 20, 2008)

Designated person

9.01.1 (a) A law firm shall provide the Law Society with the name(s) and address(es) of a person(s) of the law firm designated to receive information from the society with respect to allegations, complaints, and disciplinary matters involving a member of the law firm. Where feasible the person designated shall be a member of the society.

(b)When there is a change in the designated member information previously filed with the Law Society, the member and law firm shall provide the name(s) and address(es) of the newly designated person(s).
(Amended: Rule 9.01.1( b), Spring Term Convocation, April 3, 2006)

(c) The designated person(s) will receive notification at the time a response is required from the respondent, the filing of a complaint or the implementation of disciplinary action. Copies of relevant documentation may be provided to the designated person(s) provided that any such disclosure would not have the effect of disclosing solicitor-client privileged information.
(Amended: Rule 9.01.1(c), Winter Term Convocation, January 26, 2009)

(d)For purposes of this rule, “law firm” includes a professional law corporation, partnership of professional law corporations or any combination thereof, the Newfoundland and Labrador Department of Justice, the Newfoundland and Labrador Legal Aid Commission, the Department of Justice (Canada) and one or more members of the society practising in any other unit of a public body, Crown Corporation, or as in-house counsel in a private enterprise.

(Adopted: Rule 9.01.1, Special Term Convocation, December 6, 2004; Rule 9.01.1(a, b & d): Amended Summer Term Convocation, June 10, 2005;)

ALLEGATION

Consideration by the vice-president
9.02 (1) On receipt of written documentation the vice-president shall review it to determine whether or not any concerns raised constitute an allegation and

(a) if the vice-president determines it does not constitute an allegation the vice-president shall inform the writer; or

(b) if the vice-president determines it does constitute an allegation the vice-president shall deal with the allegation pursuant to the Act and the rules.

Respondent to receive copy of allegation
(2) The vice-president shall send a copy of the allegation to the respondent.

(Amended: Rule 9.02(1 & 2), Summer Term Convocation, June 6, 2003)

MEDIATION

Consent
9.03(1) The vice-president may, at any time prior to a complaint being referred to discipline, with the written consent of the complainant and the respondent, attempt to resolve the allegation through mediation.

Written response not required
(2) The vice-president may dispense with the requirement for the respondent to file a written response under rule 9.04(3) where the vice-president is of the opinion that the allegation may be satisfactorily resolved through mediation.

Parties
(3) Mediation shall be conducted by a mediator acceptable to the parties. The parties to a mediation are the complainant, the respondent and, if the vice-president considers it necessary, the society.

Confirmation of resolution
(4) Where the allegation is satisfactorily resolved through mediation,

(a) the mediator shall, within 7 days, provide written confirmation of the resolution of the allegation to the secretary; and

(b) the vice-president shall confirm the resolution in writing to the complainant and the respondent.

Where mediation unsuccessful
(5) Where mediation does not satisfactorily resolve the allegation, the vice-president shall proceed to investigate the allegation under rule 9.04.

(Adopted: Rules 9.01-9.03, Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000; Amended: Rule 9.03(1-5), Summer Term Convocation, June 6, 2003))

INVESTIGATION

Vice-president investigation
9.04 (1) Subject to rules 9.02 and 9.03, the vice-president may investigate the allegation and may require a written response from the respondent.
(Adopted : Rule 9.04(1), Summer Term Convocation, June 9, 2000)

(2) The vice-president may appoint such person or persons as the vice-president considers appropriate to assist in the investigation of the allegation.
(Adopted: Rules 9.04(2), Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Written response within 14 days
(3) Subject to rule 9.03(2) the respondent shall

(a) respond in writing to the allegation and to any written request for a response from the vice-president or the complaints authorization committee and the response shall be signed by the respondent personally or by counsel for the respondent;

(b) respond within 14 days after the allegation or the written request for a response is received or by such other date as may be set by the vice-president or the complaints authorization committee; and,

(c) provide such information or explanation as may be requested by the vice-president or the complaints authorization committee.

(Amended: Rule 9.04(3), Summer Term Convocation, June 9, 2000)

Proof of delivery
(4) Personal delivery of a written request to the office of the respondent or the mailing of a written request by registered mail, addressed to the office of the respondent shall be prima facie receipt thereof by the respondent.

Failure to respond
(5) A respondent’s failure to respond in writing to the allegation or to inquiries by the vice-president or the complaints authorization committee within 14 days or by the date set by the vice-president or the complaints authorization committee, without reasonable excuse, may constitute conduct deserving of sanction.
(Amended: Rules 9.04(4) and (5), Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Information to complainant
(6) After receiving a response from a respondent, the vice-president may send to the complainant a copy of the response or any part of it or a summary of it or any information or documentation acquired in the course of the investigation and provided that any such disclosure would not have the effect of disclosing privileged information.
(Amended : Rule 9.04(6), Summer Term Convocation, June 9, 2000; Amended: Rule 9.04(1-6), Summer Term Convocation, June 6, 2003)))

VICE-PRESIDENT REPORT

9.05 After investigating the allegation the vice-president shall submit a report of the investigation to the complaints authorization committee
(Adopted: Rules 9.05, Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000; Amended: Rule 9.05, Summer Term Convocation, June 6, 2003))

COMPLAINTS AUTHORIZATION COMMITTEE

Consideration
9.06 (1) The complaints authorization committee shall, pursuant to section 45 of the Act, consider the allegation and the report submitted by the vice-president.

Investigation
(2) The complaints authorization committee may appoint such person or persons as it considers appropriate to assist in its investigation of the allegation.

Failure to appear
(3) A respondent’s failure to appear before the complaints authorization committee on the date and at the time set, without reasonable excuse, may constitute conduct deserving of sanction.

(Adopted: Rules 9.06(1), (2) and (3),Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Action on allegations
(4)After considering the allegation under rule 9.06 the complaints authorization committee may exercise one or more of the powers set out in section 45 of the Act.

Counsel and caution
(5) If the complaints authorization committee counsels or cautions a respondent the committee may direct the vice-president to advise the members of the society of the circumstances giving rise to counselling or cautioning but omitting information that may disclose the identity of the respondent.

Notice
(6) The vice-president shall notify the complainant and the respondent in writing of the disposition of the allegation and of the fact that a respondent has been cautioned or counselled, if applicable.

(Adopted: Rules 9.06(4-6), Summer Term Convocation, June 9, 2000; Amended: Rule 9.06(1,5 &6), Summer Term Convocation, June 6, 2003)

RESPONDENT

Obligation of respondent

9.07 (1) A respondent shall co-operate fully in an investigation and shall provide access to all files and other records in the custody or under the control of the respondent which are relevant to the subject of the investigation.

(2) In the course of an investigation, solicitor-client privilege shall not apply as against the society to enable the respondent or the complainant to refuse to produce any information or documentation in their possession or under their control.

(Adopted: Rules 9.07(1) and (2),Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Disclosure of Information

(3) All information and documentation obtained, which, but for this rule, would be subject to solicitor-client privilege, shall be held in confidence and shall not be disclosed except to a person carrying out duties under the Act or the rules, the complainant in circumstances contemplated by rule 9.04(6) or otherwise as required by law.

(Adopted:Rule 9.07(3), Spring Term Convocation, April 3, 2000)

(4) Notwithstanding rule 9.07(3), the Law Society may, either upon request or at its own initiative, disclose information about the respondent to any law society provided that the disclosure of information does not contravene solicitor client privilege.

(Rule 9.07(4): Adopted Benchers Convocation, April 10, 2017)

COMPLAINT

Contents of complaint
9.08 (1) The complaint shall include particulars of the conduct complained of with reference to the Act, the rules and the Code of Professional Conduct as applicable.

Notice to complainant
(2) The complainant shall be advised in writing that the complaint has been referred to the disciplinary panel.

Appointment of counsel
(3) The vice-president may appoint counsel employed by the society or retain other counsel to formulate and prosecute the complaint.

(Adopted: Rule 9.08(1), (2) and (3), Summer Term Convocation, June 9, 2000; Amended: Rule 9.08(3), Summer Term Convocation, June 6, 2003 Amended: Rule 9.08(2)Summer Term Convocation, June 20, 2008)

DISCIPLINE HEARING

Adjudication tribunal
9.09 (1) Upon referral of a complaint, the chairperson of the disciplinary tribunal shall, under subsection 46(1) of the Act, appoint an adjudication tribunal to hear the complaint.
(Adopted: 9.09(1), Winter Term Convocation, January 9, 2001)

(2) The adjudication tribunal may conduct a pre-hearing conference at the direction of the chairperson of the tribunal and with the consent of the respondent and counsel for the society.

(3) Any party may participate in a pre-hearing conference by telephone or by any other means of communication that allows all parties participating to hear each other.

(4) At a pre-hearing conference the adjudication tribunal may consider

(a) the simplification of the issues,

(b) the necessity or desirability of amendments to the complaint,

(c) any possibility of admissions or agreed statements of fact,

(d) the discovery and production of documents,

(e) setting a date for the hearing,

(f) any application by a party,

(g) the desirability of conducting the hearing or a part of it in camera, and

(h) any other matters that may aid in the disposition of the complaint.

(5) At a pre-hearing conference the adjudication tribunal may make an order reciting the results of the conference and giving such directions as the adjudication tribunal deems advisable.

(6) The adjudication tribunal conducting the pre-hearing conference shall be the adjudication tribunal hearing the complaint.

(Adopted: Rule 9.09 (2), (3), (4), (5) and (6), Spring Term Convocation, April 2, 2001; Amended: Rule 9.09, Summer Term Convocation, June 20, 2008)

Plea

9.10 (1) Prior to the commencement of a hearing, the respondent shall be asked by the chairperson of the adjudication tribunal whether the respondent pleads guilty or not guilty to one or more of the charges set out in the complaint.
(Amended: Rule 9.10 (1), Spring Term Convocation, April 2, 2001)

(2) Where the respondent pleads guilty to the complaint, the adjudication tribunal shall proceed under section 49 of the Act.

(3) Where the respondent pleads not guilty to the complaint, the adjudication tribunal shall proceed under section 50 of the Act.
(Adopted: Rule 9.10 (2), (3) and (4), Winter Term Convocation, January 29, 2001; Amended: Rule 9.10, Summer Term Convocation, June 20, 2008)

Procedure

9.11 (1) The adjudication tribunal may summon witnesses and require those witnesses to give evidence orally or in writing upon oath or affirmation, and produce the documents and things that may be considered necessary to the hearing of complaints and shall have the powers, privileges and immunities that are conferred on commissioners appointed under the Public Inquiries Act.

(2) Where no evidence is called, or where the consent of all parties is obtained, the adjudication tribunal may conduct a hearing by teleconference or other electronic means.

(3) The oral evidence submitted at a hearing before the adjudication tribunal shall be recorded verbatim.

(4) A person who is subpoenaed to attend is entitled to the same conduct money and payment for costs and/or expenses as a witness at a trial in the Supreme Court.

(Adopted: Rule 9.11 (1), (2), (3) and (4), Winter Term Convocation, January 29, 2001; Amended: rule 9.11(1), (2) and (3) Summer Term Convocation, June 20, 2008)

Decision of Tribunal

9.12 (1) The decision of at least two (2) members of the adjudication tribunal on any charge in a complaint shall be the decision of the tribunal on that charge and shall be in writing.

(2) Where the adjudication tribunal finds the respondent is not guilty on any charge in a complaint it shall dismiss the charge and may make an order under subsection 50(2) of the Act.

(3) Where the adjudication tribunal finds the respondent is guilty of conduct deserving of sanction, the adjudication tribunal may make such orders or take such actions as are provided under subsections 49(2) and 50(2) of the Act respectively.

(Adopted: Rule 9.12 (1), (2) and (3), Winter Term Convocation, January 29, 2001)

(4) The chairperson of the adjudication tribunal shall file the decision and the order with the vice-president.
(Adopted: Rule 9.12 (4), Spring Term Convocation, April 2, 2001; Amended: Rule 9.12(4), Summer Term Convocation, June 6, 2003; Amended: Rule 9.12(1)-(4), Summer Term Convocation, June 20, 2008 )

Service

9.13 A copy of any decision or order or action made under subsections 49(2), 50(2) and 50(3) of the Act shall be served upon the respondent either personally or by delivering or telecopying a copy to the respondent’s address of record, or his or her solicitor’s address of record, or home or by other appropriate means.

(Amended: Rule 9.13, Spring Term Convocation, April 2, 2001; Amended: Rule 9.13, Summer Term Convocation, June 20, 2008)

Effect of decision

9.14 A decision or order of the adjudication tribunal shall take effect upon service unless otherwise ordered by the adjudication tribunal.

(Amended: Rule 9.14, Spring Term Convocation, April 2, 2001; Amended: Rule 9.14, Summer Term Convocation, June 20, 2008)

Costs and expenses

9.15 (1) Where in respect of any charge for which the respondent is not guilty, the adjudication tribunal may order the costs that the tribunal considers appropriate be paid by the society to the respondent under subsection 50(2)(a) of the Act.

(2) Where in respect of any charge for which the respondent is guilty, the adjudication tribunal may order the expenses that the tribunal considers appropriate be paid by the respondent to the society under subsections 49(2) or 50(3) of the Act.

(Amended: Rule 9.15, Summer Term Convocation, June 8,2001; Amended: Rule 9.15, Summer Term Convocation, June 20, 2008)

Application to the complaints authorization committee

9.16 (1) An application under section 53 or section 54 of the Act shall be in writing and filed with or sent by electronic means to the society office.

(2) An application under section 53 of the Act shall be served on the parties in the same manner as prescribed in rule 9.13.

(3) Where an application under section 53 or section 54 of the Act has been referred to an adjudication tribunal for a suplementary hearing, the, the chairperson of the disciplinary panel shall refer the application to an adjudication tribunal which shall hear the application.

(4) An adjudication tribunal shall be comprised in the same manner as prescribed in subsection 46(1) of the Act.

(Rule 9.16(1)-(4)Summer Term Convocation, June 20, 2008)

Procedure

9.17 (1) Prior to making an order under section 53 or section 54 of the Act, an adjudication tribunal may conduct such inquiries and hear such representations from the parties as the tribunal considers appropriate.

(2) The procedures prescribed in rule 9.11 shall apply to an application under section 53 or section 54 of the Act.

(Rule 9.17 Amended: Summer Term Convocation, June 20, 2008)

Order of tribunal

9.18 (1) An adjudication tribunal shall file with the vice-president an order made under section 53 or section 54 of the Act.

(2) The order of the adjudication tribunal shall be served in the same manner as prescribed in rule 9.13.

(3) The order of the adjudication tribunal shall take effect when served on the respondent, unless otherwise ordered by the adjudication tribunal.

(Adopted: Rules 9.16 – 9.18, Summer Term Convocation, June 8, 2001; Amended: Rule 9.18(1), Summer Term Convocation, June 6, 2003; Amended: Rule 9.18 Summer Term Convocation, June 20, 2008)

Appeals to benchers

9.19-9.27 Appeals to benchers are repealed.
(Rule 9.19-9.27:Repealed Summer Term Convocation, June 20, 2008)

Publication

9.28 (1) Subject to section 51 of the Act the society shall give notice of the finding to the members of the society, to the complainant and to any other governing body of the legal profession in Canada of which the respondent is a member, which notice shall include:

(a) the name of the respondent;

(b) the nature of the charge of which the respondent was found guilty, including brief particulars; and

(c) the disciplinary action.

(2) Where a respondent is disbarred or struck off the rolls or suspended from practice or ordered to refrain from practising in respect of certain areas of law, a notice to that effect shall be provided to the Courts, including the Judges and the Clerks, to any other governing body of the legal profession in Canada, to the members of the society and to the public.

(Adopted: Rule 9.28, Summer Term Convocation, June 8, 2001; Amended: Rule 9.28, Summer Term Convocation, June 6, 2003; Amended: Rule 9.28 Fall Term Convocation, October 6, 2008)

Bankruptcy and insolvency

9.29 (1) Every member or student-at-law admitted as such by the Society shall immediately notify the Executive Director upon

(a) receipt of a petition under the Bankruptcy and Insolvency Act (R.S. 1985, C. B-3) in which the court is asked to make a receiving order with respect to the property of the member or student-at-law,

(b) the making by the member or student-at-law of an assignment under the Bankruptcy and Insolvency Act,

(c) the making by the member or student-at-law of a proposal under the Bankruptcy and Insolvency Act,

(2) The Executive Director may require the member or student-at-law to submit additional information for more complete examination outlining the circumstances relating to any of the matters referred to in subsection 9.29(1) and the member or student-at-law shall be obliged to respond fully to the Executive Director’s request within seven days after receiving the request for further information.

(3) Upon occurrence of one or more of the events as set out in Rule 9.29(1) (b) or (c), or in the event that a receiving order is made against a member or student-at-law under the Bankruptcy and Insolvency Act then that member’s entitlement to engage in the practice of law or that student-at-law’s articles of clerkship is suspended pending a review by the Executive Committee.

(4) A member or student-at-law affected by Rule 9.29(3) may make an immediate written submission to the Executive Director and upon receipt of same the Executive Committee may, after ascertaining that the protection of the public will not be jeopardized, reinstate the member’s entitlement to engage in the practice of law or the student-at-law’s articles of clerkship, and attach such conditions to his or her practice of law or articles of clerkship as it deems reasonable for such protection.

(5) A member or student-at-law suspended pursuant to Rule 9.29(3) and who makes a written submission in accordance with Rule 9.29(4) shall be entitled to a hearing before the Executive Committee as soon as practicable and in no case longer than seven days from the date of his or her written submission, unless the member or student-at law requests a longer period of time be extended for the hearing.

Judgment and orders

9.30 A member or student-at-law must notify the Executive Director immediately upon:

(1) a judgment becoming outstanding against him or her and remaining unsatisfied for a period of 30 days, whether or not an appeal from the judgment has been taken.

(2) a contempt order having been made against him or her,

or

(3) the making of an order for costs against him or her personally under Rule 55.14 of the Rules of Court.

Duty to report guilty plea or finding of guilt

Duty to report

9.31(1) A lawyer shall advise the Executive Director in writing immediately upon being charged with respect to any offence pursuant to:

(a) the Criminal Code of Canada;
(b) the Controlled Drugs and Substances Act;
(c) the Income Tax Act;
(d) any other Federal or Provincial legislation where the offence relates to a breach of trust, dishonesty or fraud, or the conviction for such offence may result in a period of incarceration.

(Rule 9.31(1): Adopted Benchers Convocation, April 10, 2017)

(2) A lawyer shall advise the Executive Director in writing immediately upon pleading guilty or being found guilty with respect to any offence pursuant to:

(a) the Criminal Code of Canada;
(b) the Controlled Drugs and Substances Act;
(c) the Income Tax Act;
(d) any other Federal or Provincial legislation where the offence relates to a breach of trust, dishonesty or fraud, or the conviction for such offence may result in a period of incarceration.

(Rule 9.31(2): Adopted Benchers Convocation, April 10, 2017

Professional misconduct

9.32 The occurrence of an event set out in Rules 9.29, 9.30, or 9.31 may be treated as an allegation of conduct deserving of sanction.

(Adopted: Rule 9.29-9.32, Winter Term Convocation, February 22, 2005)