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The obligation of judges in British Columbia to report lawyer misconduct

This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.

 

Introduction
This article examines the extent of the ethical duty on judges in British Columbia to report lawyer misconduct they become aware of. The obligation of lawyers to report the misconduct of other lawyers is also briefly set out. Finally, comments are made on the approach of British Columbia judges to reporting lawyer misconduct to regulatory authorities.
 
Lawyers have an ethical obligation to certain misconduct of other lawyers?
Rule 1 of Chapter 13 of the Professional Conduct Handbook of the Law Society of British Columbia imposes an obligation on lawyers in British Columbia to report other lawyers to the Law Society in certain circumstances:
 
Reporting another lawyer to the Law Society
1. Subject to Rule 2, a lawyer must report to the Law Society another lawyer's:
(a) breach of undertaking that has not been consented to or waived by the recipient of the undertaking,
(b) shortage of trust funds, and
(c) other conduct that raises a substantial question as to the other lawyer's honesty or trustworthiness as a lawyer.
2. In making a report under Rule 1, a lawyer must not disclose any confidential information respecting the lawyer's client acquired in the course of the professional relationship or any privileged communications between them, unless the client expressly or implicitly consents.
 
Subsection (c) of Rule 13(1) imposes a general requirement on lawyers to report other lawyers. However, lawyers are not obliged to report the mere misconduct (i.e. breaches of the Professional Conduct Handbook) of other lawyers. The duty to report only kicks in when the conduct raises “a substantial question as to the other lawyer's honesty or trustworthiness”. This is a high standard. Furthermore, lawyers considering reporting other lawyers should bear in mind other provisions of the handbook, including Rules 11(13) and 13(4):
 
11(13) A lawyer shall avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges of other lawyers, but should be prepared, when requested, to advise and represent a client in a complaint involving another lawyer.
 
13(4) A lawyer must not use the Law Society's disciplinary and competence procedures, or suggest to a client that such procedures be used, vexatiously or solely to further the client's civil claim against another lawyer.
 
Therefore, lawyers are likely to err on the side of caution and not report other lawyers apart from in exceptional circumstances.
 
The obligation on Canadian judges to report lawyer misconduct?
A protocol agreement between the Benchers of the Law Society of British Columbia and the British Columbia Provincial Court states that: “Lawyers, judges and judicial justices of the peace (JJPs) have ethical duties to report misconduct to the appropriate disciplinary body”: http://www.lawsociety.bc.ca/publications_forms/bulletin/2004/04-12-06_court-protocols.html
 
But what is the scope of the duty on Canadian judges to report lawyer misconduct? A publication titled Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 2004), http://www.cjc-ccm.gc.ca/cmslib/general/ethical-e.pdf, deals with ethical obligations on Canadian judges. However, it is important to note at the outset that that publication is not a binding code of conduct, but just a frame of reference for judges. Chapter 4 of that document is titled “Diligence”, and begins by setting out the statement that “Judges should be diligent in the performance of their judicial duties”. Chapter 4 then sets out 4 principles related to that statement, and then provides 14 points of commentary on the statement and the principles. Point 14 of the commentary section provides as follows:
 
It is a delicate question whether and in what circumstances a judge should report, or cause to be reported, a lawyer to the lawyer’s professional governing body. Taking such action may affect the ability of the judge to continue in the proceeding in which that lawyer is appearing, given that the judge’s view of the lawyer’s conduct may give rise to a reasonable apprehension of bias against the lawyer or the lawyer’s client. On the other hand, a judge is in a special position to observe lawyers’ conduct before the court. Putting aside any issue of contempt, generally a judge should take, or cause to be taken, appropriate action where the judge has clear and reliable evidence of serious misconduct or gross incompetence by a lawyer. The judge will have to weigh carefully whether the interests of justice require that he or she wait until the end of the proceeding or whether there are circumstances which require earlier action even though the judge, nonetheless, continues to preside.
(underlining added)
 
Similar to Rule 13(1)(c) of the Professional Conduct Handbook of the Law Society of British Columbia, this ethical guideline for judges requires strong evidence of serious misconduct before action is warranted.
 
The obligation on American judges to report lawyer misconduct is arguably broader than that on Canadian judges. Canon 3D(2) of the American Bar Association Model Code of Judicial Conduct, http://www.abanet.org/cpr/mcjc/toc.html, says the following:
 
A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.
(Underlining added)
 
This section provides that the judge is obligated to (“shall”) report the lawyer if the conduct raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. However, the judge is merely required to “take appropriate action” if the evidence indicates a substantial likelihood that a rules of professional conduct has been breached. But, the commentary to this section says that “appropriate action may include direct communication with the … lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body”. Therefore, reporting the conduct may be “appropriate action” where a judge has information indicating a substantial likelihood that a lawyer has committed a violation of a rule of professional conduct.
 
Thus, it is not clear that the American guidelines impose a broader duty on judges to report lawyer misconduct, but it is certainly not narrower than the duty on Canadian judges. Furthermore, the duty to report is part of a binding code of conduct in states where the model code has been adopted.
 
Approach of British Columbia judges to reporting lawyer misconduct to regulatory authorities.
Judges who become aware of lawyer misconduct can react in a number of ways, including doing nothing, explaining their disapproval in their written reasons and / or reporting the misconduct to the relevant regulatory authority.
 
In R. v. Dunbar, 2003 BCCA 667 [Dunbar] the British Columbia Court of Appeal strongly disapproved of the conduct of defence counsel who showed “excessive and misguided zeal”. Counsel’s improper behaviour included making disparaging remarks about the defence counsel who had previous conduct of the file, providing improper affidavit material, and saying that the courts are part of a defence team designed to protect incompetent lawyers. In that case, the British Columbia Court of Appeal instructed the Crown to report the conduct of defence counsel to the Law Society of British Columbia:
 
We would ask counsel for the Crown, Mr. Sweeney, to draw these reasons to the attention of the Law Society of British Columbia, the Legal Services Society, or any other body who might reasonably have an interest in controlling and preventing the conduct we have described.
(Dunbar at para. 343).
 
The case of R. v. Jardine, 2005 BCPC 328 [Jardine] involved a charge of robbery and a key issue was the degree of force required to establish assault. Counsel in that case had previously been counsel in R. v. Chiang, (1999) 138 C.C.C. (3d) 522 (B.C.C.A.) [Chiang] where the British Columbia Court of Appeal held that even the slightest touching constitutes assault sufficient to support a conviction for robbery. Counsel did not bring that pertinent and adverse authority to the attention of the court in Jardine as required by Rule 8(1)(f) of the Professional Conduct Handbook, which provides as follows:
 
A lawyer shall not:
(f) deliberately refrain from informing the court or tribunal of any pertinent authority directly on point that has not been mentioned by an opponent,
 
Rather than bringing Chiang to the counts attention, defence counsel in Jardine argued that an assault involving substantial force is required to support a conviction for robbery. The court noted in Jardine at para. 24 that counsel was, having been counsel in Chiang, familiar with that case, but that counsel left it to the court to raise Chiang during argument. Although Rule 8(1)(f) of the Professional Conduct Handbook was not mentioned in Jardine, it appears that the court disapproved of counsel arguing against binding authority that counsel knew about without first bringing that authority to the courts attention. There is no indication that steps were taken, or would be taken, to bring the matter to the attention of the British Columbia Law Society.
 
In Gurtins v. Panton-Goyert, 2007 BCSC 1213 [Gurtins] a Provincial Court Order had been issued. Counsel for the person named in the order gave his client a letter to show the police if they tried to enforce the order. The letter opined that the order was of no force or effect and should not be enforced by the police. At para.13 the British Columbia Supreme Court clearly stated that writing such a letter was improper:
 
As an officer of the Court, [counsel] must know that Judge Seidemann’s order remains in full force and effect, and must be followed unless and until it is modified or cancelled. His letter is entirely inappropriate and most improper. It is inexcusable for an officer of the court to write such a misleading letter to police authorities who are bound to follow the terms of the order.
 
The lawyer’s conduct in that case is arguably contrary to Rule 2(1) of the Professional Conduct handbook of the Law Society of British Columbia which provides as follows:
 
Dishonourable conduct
A lawyer must not, in private life, extra-professional activities or professional practice, engage in dishonourable or questionable conduct that casts doubt on the lawyer's professional integrity or competence, or reflects adversely on the integrity of the legal profession or the administration of justice.
(underlining added).
 
However, there is no indication that steps were taken, or would be taken, to bring that matter in Gurtins to the attention of the British Columbia Law Society.
 
Conclusion
There is no binding duty on judges in British Columbia to report lawyer misconduct; the booklet produced by the Canadian Judicial Council is just a guideline. However, even if that document did impose a duty, it would be a low one in the sense that it would only kick in when there was “clear and reliable evidence of serious misconduct or gross incompetence”. Similarly, the duty on lawyers to report the misconduct of other lawyers only kicks in when the conduct is severe.
 
Assuming the lawyer conduct in Jardine or Gurtins was not reported to the Law Society by the judges in those cases, it is not suggested that it should have been. On the contrary, there is no binding duty to do so. Furthermore, the requirements set out in Point 14 of the Canadian Judicial Council’s Ethical Principles for Judges for “clear and reliable evidence of serious misconduct or gross incompetence” is a strict one which was quite possibly not met in those cases.
 
The purpose of this article is simply to highlight the fact that there is no codified and binding duty on judges in Canada to report lawyer misconduct, and to make the following points:
o       Perhaps there should be an explicit duty on Canadian judges to report lawyer misconduct similar to the duty set out in the American Bar Association Model Code of Judicial Conduct. Most likely, in cases such as Jardine and Gurtins lawyers will not report their peers and so such conduct may never be formally dealt with.
o       Point 14 of the Canadian Judicial Council’s Ethical Principles for Judges book does not distinguish between two classes of cases. First, situations involving issues of bias or of criminal defendants not receiving adequate representation. Second, situations where the judge becomes aware of inappropriate out of court conduct or other conduct which need not be addressed until the end of proceedings. It is suggested that perhaps there should be a lower threshold for judges reporting breaches of professional codes of conduct in the second category.
 
 
 
Research articles :