A lawyer was found by the Law Society Appeal Panel to have committed 43 particulars of professional misconduct in relation to 11 clients over a six year period. The penalty imposed on the lawyer, who had a mixed personality disorder with no clear prognosis, was the surrendering of her license with terms. The penalty was appealed to the Ontario Court of Justice but dismissed.

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Professional misconduct – Competence – Public interest – Disciplinary proceedings – Penalties and suspensions – Judicial review – Failure to provide reasons

Bharadwaj v. Law Society of Upper Canada, [2013] O.J. No. 3252, 2013 ONSC 4329, Ontario Superior Court of Justice, June 21, 2013, A.M. Molloy, J.C. Murray and A.L. Harvison Young JJ.

Ms. Bharadwaj was called to the Bar in 1999. On September 17, 2008, a Hearing Panel found her to have committed 43 particulars of professional misconduct. Ms. Bharadwaj did not testify on the merits of the application but she did testify during the penalty phase of the hearing. The Law Society took the position that she should be permitted to surrender her license. Ms. Bharadwaj took the position that in light of her psychiatric history she ought to be suspended only for a fixed period of time and thereafter indefinitely until she could demonstrate that she was fit to return to the practice of law. The penalty imposed on Ms. Bharadwa by the Hearing Panel was for her to surrender her license with terms. She failed to surrender her license by the specified date and her license was revoked.

Ms. Bharadwaj appealed the Hearing Panel’s decision to the Law Society Appeal Panel. She advanced two grounds for her appeal: (i) the Hearing Panel erred in law by failing to provide adequate reasons for its decision on penalty and (ii) the Hearing Panel’s decision on penalty was unreasonable. On February 22, 2012, the Appeal Panel issued its decision; they dismissed the appeal. Ms. Bharadwaj appealed this decision to the Ontario Superior Court of Justice on the same grounds.

Ms. Bharadwaj submitted that the penalty imposed on her was unreasonable because there was no finding of ungovernability and the penalty imposed was disproportionate to penalties imposed in other cases involving similar or more egregious misconduct and the panel failed to explain why a lesser penalty was not imposed. The Court disagreed and adopted the analysis of the Appeal Panel’s decision. The Court noted that although the Hearing Panel did not refer to other cases specifically in its decision, the Appeal Panel was alive to the arguments and jurisprudence referred to by Ms. Bharadwaj.

Regarding the adequacy of the reasons provided for the penalty decision, the Court noted the following factors which informed the Hearing Panel’s decision on penalty which included: (i) the nature, duration and repetitive character of the misconduct, (ii) the lawyer’s limited insight and remorse, (iii) the failure of the lawyer to make voluntary restitution to any clients, (iv) the fact that the lawyer had been previously cautioned by the discipline committee (v) the fact that personality disorders are notoriously difficult to treat, (vi) the expert witness’ inability to offer a time estimate for when the lawyer would be fit to practice, (vii) the absence of any character witnesses, and (viii) the need for deterrence and protection of the public. The Court found that taken together, the Panel’s reasons permit meaningful review. As a result, the Court dismissed the appeal.

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