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Representation - Lawyers - 'Conduct Unbecoming'. Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court considered an appeal from the Appeal Division of the Law Society Tribunal dealing with the 'conduct unbecoming of a licensee' provision of the Law Society Act [s.33].
In these quotes the court first reviewed the decision of the (lower) Hearing Division of the Law Society Tribunal:[8] On December 17, 2021, the hearing panel found, based on an agreed statement of facts, that the Respondent engaged in conduct unbecoming of a licensee. The Respondent had acknowledged viewing child pornography for two to three years before his arrest and that police found 45 unique photographs and 111 unique videos on various devices.
[9] The hearing panel rejected the LSO’s submission that the presumptive revocation framework that applies to certain forms of misconduct should be extended to apply to licensees found guilty of chid pornography offences. In rejecting the LSO’s submissions that a presumptive penalty of revocation should apply, the hearing panel found that presumptive revocation typically applies to “lawyerly misconduct,” that is, conduct that goes to the heart of lawyering and a lawyer’s duties and obligations. The hearing panel referenced the Appeal Division’s decision in Law Society of Ontario v. Manilla, 2021 ONLSTA 25, which cautioned against the “undue expansion” of the principle of presumptive revocation. The hearing panel observed that, unlike health care workers and teachers, the Law Society Act, R.S.O. 1990, c. L.8, did not require mandatory revocation for lawyers convicted of possessing child pornography.
[10] The hearing panel went on to apply the Aguirre[1] factors to determine the appropriate penalty. The panel noted that the Respondent fully co-operated and was “profoundly remorseful”, that he had no prior disciplinary record, and that he was at a low risk of reoffending. The panel further took into consideration the duration of the offence, the number of victims, and the harmful nature of the offence, which amounted to ongoing sexual exploitation of children. After considering all of the factors, the hearing panel ordered a nine-month suspension of the Respondent’s licence. The court later remitted the matter back to another panel of the Hearing Division on other grounds as the first panel had been improperly comprised (for lack of a lay member).
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