“Bulk Discount” For Multiple Failures To Respond To Bar?

A reprimand for non-cooperation has been imposed by Hearing Division Tribunal of the Law Society of Upper Canada.

From Raj Anand

At a summary hearing, the respondent admitted that over a period of about five months he failed to provide prompt and complete responses to communications from the Law Society’s Complaints Resolution Department in relation to four investigations. The day before the hearing, he sent two e-mails to the Law Society containing the remainder of the outstanding information. I made a finding of professional misconduct and gave brief oral reasons…

 Here, the respondent has no prior disciplinary record. On the other hand, as the Law Society pointed out, there were four investigations involving four complainants that could not move ahead, each of which could have founded a separate finding of misconduct. Counsel argued that the licensee does not merit a “bulk discount” where several acts of professional misconduct occur during the same time period, and there was no case involving four investigations where compliance before the hearing rescued a respondent from a suspension.

As to  sanction

there are mitigating personal circumstances here. Mr. Montes testified about the dissolution of his marriage, acrimonious and draining litigation, battles over child support, custody and access, and the impact that these circumstances had on his practice and his income. The matrimonial litigation occupied over two years, and the last six months coincided with the period of his non-compliance in 2015 with the first two Law Society investigations.

In this regard, however, there is no evidence of a causal link between the respondent’s sympathetic circumstances and his inability to spend a few hours to meet the information requests of his regulator.

Bottom line

 While there is no inflexible rule, the charts show that in the vast majority of non-co-operation cases, a clear disciplinary record and compliance before the hearing will lead to a reprimand. Moreover, none of the 14 cases cited involved full co-operation before the initial hearing date, which is what occurred here. The three decisions that are most closely on point – Kulidjian, Szpirglas and Warder – all involved full co-operation after the application came before the Tribunal, but before the conclusion of the hearing. A reprimand was ordered in the first case, and a suspension in the other two.

Mr. Montes’ compliance before the first hearing date and the absence of a prior disciplinary record point unambiguously toward a reprimand. I have also balanced the mitigating and aggravating circumstances that I mentioned above. While this is a close case because of the number of investigations in question, a reprimand is sufficient to satisfy the public interest, maintain the reputation of the legal profession and effect specific and general deterrence.

(Mike Frisch)