A prior penalty decision can be considered by a hearing panel in making a subsequent penalty decision, even if the prior penalty is under review, depending on the wording of the governing legislation

Administrative law – Decisions reviewed – Law Societies – Judicial review – Appeals – Standard of review – Reasonableness – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Suspensions

Law Society of British Columbia v. Perrick, [2018] BCJ No 785, 2018 BCCA 169, British Columbia Court of Appeal, May 2, 2018, M.E. Saunders, R. Goepel, L. Fenlon JJ.A.

A lawyer appealed a 30-day suspension imposed on him by the Law Society following a finding of misconduct on the basis that the penalty was informed by a prior finding of misconduct that was under review.

The lawyer was the subject of two concurrent Law Society disciplinary actions. He was found guilty of professional misconduct in both proceedings. Following the first action, the lawyer was ordered to pay a fine and the costs of the hearing. The lawyer sought review of the first action.

Following the second action, a 30-day suspension was imposed on the lawyer. One of the factors in the suspension was the fact that, through the first action, the lawyer had a prior finding of misconduct.

The lawyer sought review of the decision with respect to the second action on the basis that the Law Society hearing panel had inappropriately relied on the decision in the first action to assess the penalty in the second action, and the first action was under review. The Review Board held that despite a pending review or appeal, a finding of misconduct could still be considered in a subsequent disciplinary action. The Review Board observed that this approach was consistent with the approach taken in the criminal and immigration law contexts.

On appeal to the B.C. Court of Appeal, the lawyer argued that the hearing panel decision was not a “final determination” under the Legal Profession Act, SBC 1998, c.9 because it was still under review, and therefore could not be considered as part of his professional conduct record until the decision was confirmed by a review board.

The B.C. Court of Appeal upheld the Law Society’s decision, noting that not all decisions are reviewed and it would be absurd to say that only those decisions which are subsequently reviewed are final. Further, the Court noted that the Law Society Rules allow a hearing panel to consider the lawyer’s professional conduct record, which includes not only review and appeal decisions, but also decisions made by hearing panels under section 38 “Discipline Hearings”.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact JoAnne G. Barnum at jbarnum@harpergrey.com.

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