Disciplinary decisions of the British Columbia Law Society are reviewed on a standard of reasonableness. Where a lawyer cannot assemble admissible evidence to make a plausible case of incompetency of another lawyer, then he should not pursue the issue. To press an allegation of substance abuse solely on the basis of opinion, rumour, insinuation, and speculation is to take the matter to the level of professional misconduct. Defence of absolute privilege and fair comment, which would apply in a defamation suit, does not apply in professional disciplinary proceedings.

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Competence – Professional misconduct – Absolute privilege – Defamation – Judicial review – Standard of review – Reasonableness simpliciter – Evidence

Goldberg v. Law Society of British Columbia, [2009] B.C.J. No. 657, British Columbia Court of Appeal, April 3, 2009, J.E. Prowse, I.T. Donald and H. Groberman JJ.A.

The main issue before the Court was the reasonableness of the Law Society’s decision to discipline Mr. Goldberg in connection with his presentation of four cases before the British Columbia Court of Appeal. A secondary issue before the Court was whether absolute privilege and fair comment attached to the statements made by Mr. Goldberg before the Court of Appeal which resulted in his being disciplined by the Law Society.

The issues arose as follows:

In three murder appeals and an application to reinstate an appeal from a conviction for threatening bodily harm, heard together, Mr. Goldberg who acted as counsel for the appellants, alleged, amongst other things, that a former member of the BC Bar, John Banks, failed to provide the Appellants with effective representation at their trials. The BC Court of Appeal rejected the allegations of incompetency, condemned them as groundless and irresponsible, and took the unusual step of requesting Crown Counsel to draw the Reasons of the Court to the attention of the Law Society. The Law Society issued a citation against Mr. Goldberg directing the Disciplinary Panel to inquire into Mr. Goldberg’s conduct arising from his allegations in the BC Court of Appeal about the conduct of Mr. Banks. The Law Society also directed the Panel to inquire into Mr. Goldberg’s competence because of the comments made by the Court of Appeal respecting his poorly prepared materials. After seven days of hearing, the Panel found Mr. Goldberg guilty on both counts and, after a further hearing on penalty, issued a three-month suspension and ordered costs. Decisions were affirmed by the Benchers on review.

Before the Court of Appeal, Mr. Goldberg argued that the Panel’s finding were wrong and that there were objective indications that Mr. Banks was unfit to practice law when he represented his clients at trial.

The Court of Appeal affirmed that the standard of review of disciplinary decisions of a professional regulator is reasonableness.

With respect to the Law Society’s finding that Mr. Goldberg’s representation of his clients was incompetent and ineffective, the Court of Appeal stated that a quick glance at Mr. Goldberg’s materials (his Factum and the Affidavits) was enough to justify these conclusions. The Court confirmed that the materials were grossly deficient as to both form and content and that there was no basis for challenging the reasonableness of the Law Society’s conclusion.

With respect to Mr. Goldberg’s argument that he had a duty to his clients to pursue the question of Mr. Banks’ competency and that he was, in any event, entitled to protections of fair comment and absolute privilege, the Court adopted the Law Society’s view that if a lawyer cannot assemble admissible evidence to make a plausible case of incompetency of another lawyer, then he should not pursue the issue. Moreover, the Court accepted the Law Society’s view that if the lawyer makes an allegation of substance abuse against another member solely on the basis of opinion, rumour, insinuation, and speculation, he takes the matter to the level of professional misconduct. Thus, in the Court’s view, Mr. Goldberg’s argument was unfounded. While he owed a duty to represent his clients properly, this duty did not require him to act irresponsibly.

Further, Mr. Goldberg’s reliance on the defences of fair comment and absolute privilege was rejected by the Court. On this point, the Court adopted the views expressed by R.E. Brown, in The Law of Defamation in Canada, 2d ed., vol. 2, loose-leaf (Toronto: Carswell, 1994), that absolute privilege is not applied to internal professional discipline. The Court noted that while Mr. Goldberg enjoyed immunity from suit by Mr. Banks in defamation for what he said about him in the appeals, Mr. Goldberg was answerable to the Law Society for his behaviour in the conduct of the appeals. Further, the Court noted that even if the law of defamation applied to this matter, Mr. Goldberg cannot plead fair comments. For the defence to succeed, commentary must be based on fact, and Mr. Goldberg provided no facts supporting his allegations. Accordingly, Mr. Goldberg’s appeal was dismissed.

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