The Law Society of Newfoundland and Labrador is responsible for the governance of the legal profession. Through the disciplinary process the Law Society reviews and assesses the professional conduct of its members. Conduct is reviewed in accordance with standards of ethical practice prescribed by the Law Society Act, 1999, as amended, (the Act), the Law Society Rules and the Code of Professional Conduct. The Law Society does not provide legal representation or advice to the public. The disciplinary process does not provide a mechanism to revise or reduce a lawyer’s statement of account nor change the decision of a Court or tribunal.
Allegation and conduct deserving of sanction have statutory definitions as prescribed by the Act.
- “allegation” means a written document alleging that a lawyer has engaged in conduct deserving of sanction
- “conduct deserving of sanction” includes professional misconduct, failure to maintain the standards of practice, conduct unbecoming a member of the Society, acting in breach of the Law Society Act, 1999 or the Law Society Rules or failing to adhere to the Code of Professional Conduct.
When correspondence is received from someone who is not or has not been a client of the lawyer, the Law Society’s Third Party Allegation Policy may apply. Following a review of the allegation on the basis of the factors outlined below, the Law Society may defer the investigation or decline to investigate a third-party allegation.
- whether it appears there is urgency to proceed with the investigation;
- whether it appears a danger to the public interest would result if the investigation does not proceed in the normal course;
- whether there are issues to be determined in the proceeding that may be prejudiced by the investigation;
- whether it appears the delay would prejudice the disciplinary process; and
- whether it appears the allegation or its investigation is or may lead to an abuse of the disciplinary process.
Allegations are addressed either through mediation or investigation. An allegation may only be mediated with the consent of the complainant and the lawyer. The mediator will be either a representative of the Law Society or a neutral third party. If the allegation is resolved through mediation and the mediator confirms the resolution to the Law Society, the file is closed. Allegations which are not successfully mediated are referred to the Complaints Authorization Committee, a statutory committee comprised of two lawyers and a public representative (all of whom are Benchers of the Law Society).
Investigations are conducted through the Director of Legal Responsibility’s office. The letter of complaint is forwarded to the lawyer for a response. The Law Society Rules require the lawyer to respond and cooperate with the investigation. The lawyer’s response may be provided to the complainant with a request for further comment or information.
The Complaints Authorization Committee reviews the allegation to determine whether there are reasonable grounds to believe that the lawyer has engaged in conduct deserving of sanction. If the answer is no, then the Complaints Authorization Committee will dismiss the allegation. A complainant whose allegation is dismissed by the Complaints Authorization Committee, may file a notice of appeal, within 30 days, with the Registrar of the Supreme Court.
When the Complaints Authorization Committee’s opinion is that there are reasonable grounds to believe that the lawyer has engaged in conduct deserving of sanction, there are two results:
- the allegation is considered as constituting a Complaint; and
- the Complaints Authorization Committee may issue a letter of counsel or a letter of caution to the lawyer, or instruct the Vice-President to file the Complaint against the lawyer and refer it to the Disciplinary Panel.
Counsel is advice. Caution is a warning. Both are intended to assist the lawyer in his or her future conduct. A finding of guilt has not been made against the lawyer because a finding of guilt can only be made following a Hearing.
Following the referral of the Complaint to the Disciplinary Panel, the Law Society retains a solicitor to proceed with the Complaint on its behalf. The Complaint is heard by an Adjudication Tribunal comprised of two lawyers and a public representative (all of whom are members of the Disciplinary Panel). The person who brought the allegation to the Law Society’s attention may be called as a witness on behalf of the Law Society. However, a Complaint may proceed by an Agreed Statement of Facts and it may not be necessary to require evidence from a witness.
Sections 46, 47, 48, 49 and 50 of the Act prescribe the Hearing process. At the conclusion of the Hearing the Adjudication Tribunal decides whether or not the lawyer is guilty of conduct deserving of sanction. If the Adjudication Tribunal decides that the lawyer is not guilty it shall dismiss the Complaint. If there is a finding of guilt the Adjudication Tribunal may take a number of disciplinary actions including the following:
- reprimand the lawyer,
- order that the lawyer be suspended for a period of time, or
- order the lawyer be disbarred.
The Act prescribes that the Society or the respondent (the lawyer against whom the Complaint is made) may appeal the Adjudication Tribunal’s Decision or Order to the Supreme Court, Trial Division.
Decisions of the Adjudication Tribunal (unless it directs otherwise) will be published and available on Canlii once the appropriate appeal process periods have run.