The Appellant Rault successfully appealed the penalty decision made by the Respondent Law Society’s Discipline Committee. The Committee erred in failing to adequately consider the joint submission on penalty and the Court of Appeal substituted the penalty suggested in the joint submission.

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Penalties and Suspensions – Judicial review – Self-governing professions – Powers of Disciplinary Committee – Joint submissions

Rault v. Law Society of Saskatchewan, [2009] S.J. No. 436, Saskatchewan Court of Appeal, July 15, 2009, G.R. Jackson, G.A. Smith and D.C. Hunter JJ.A.

The Appellant lawyer, Rault, was the subject of a series of complaints made to the Respondent Law Society in 2004. Rault’s lawyer negotiated with counsel for the Law Society and the two parties agreed to a joint sentencing submission. The joint submission involved Rault “resigning in the face of discipline” and she was not restricted from re-applying for admission.

Rault pled guilty to four of the six charges and the Hearing Committee concluded that the four charges were well founded. The Hearing Committee referred the matter of penalty to the Discipline Committee for it to consider. The Discipline Committee received the joint sentencing submission from both parties (counsel for Rault and counsel for the Law Society’s Investigation Committee). The Law Society’s counsel agreed that the penalty in the joint sentencing submission was within the range of penalties for the charges. Both counsel made submissions about the aggravating and mitigating factors involved in the case. Rault answered some questions from the Discipline Committee and then the Discipline Committee made an oral decision after 75 minutes of deliberations.

The Discipline Committee decided that it was not bound by the joint submission and proceeded to “independently” decide an appropriate penalty. The Discipline Committee ordered that Rault be disbarred and prohibited her from re-applying for admission for five years. The Legal Profession Act, 1990 allows an appeal from a penalty decision of the Discipline Committee and the Court of Appeal can make any order it considers to be appropriate. Rault appealed to the Court of Appeal alleging that the Discipline Committee was required to consider the joint submission and accord a measure of deference to it.

On Appeal, Rault alleged that the Discipline Committee should be required to follow the criminal law principles regarding joint submissions. The law in that area requires a trial judge to give serious consideration to a joint submission on sentencing agreed upon by counsel unless the sentence is unfit, unreasonable, or contrary to the public interest, and it should not be departed from unless there are good reasons for doing so. There are compelling policy reasons for such requirements. If people are going to give up their right to a hearing on the basis of an agreement as to penalty, the agreements should not be lightly interfered with by adjudicators.

The penalties of disbarment and “resignation in the face of discipline” are similar but disbarment is more severe than resignation. The Discipline Committee was not allowed to ignore the joint submission without proper consideration. The written decision did not indicate that the Discipline Committee properly considered the joint submission. The written decision also did not indicate a good reason for rejecting the joint submission. In considering the written decision, the Court of Appeal concluded that the Discipline Committee’s decision was unreasonable in that it failed to properly consider or appropriately reject the joint submission.

The Court of Appeal exercised its broad discretion and imposed the penalty of “resignation in the face of discipline”. The Court of Appeal fixed the ineligibility period at three years.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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