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DEFINITIONS

9.01 In this part and with the exception of the definition of “law firm” outlined in rule 9.01.1(4), the meaning of all terms shall be as defined and/or described in the Law Society Act, 1999.

ALLEGATIONS

Designated person

9.01.1(1) A law firm shall provide the society with the name(s) and address(es) of a person(s) of the law firm designated to receive information from the society with respect to allegations, complaints, and disciplinary matters involving a member of the law firm (‘the respondent”). Unless authorized by the director of professional responsibility, the person(s) designated shall be a member(s) of the society.

(2) When there is a change in the designated person(s) information previously filed with the society, the member and law firm shall provide the name(s) and address(es) of the newly designated person(s).

(Amended: Rule 9.01.1(b), Spring Term Convocation, April 3, 2006)

(3) The designated person(s) will receive notification at the time a response is required from the respondent, the filing of a complaint or the implementation of disciplinary action. Copies of relevant documentation may be provided to the designated person(s) provided that any such disclosure would not have the effect of disclosing privileged information.

(Amended: Rule 9.01.1(c), Winter Term Convocation, January 26, 2009)

(4) For purposes of this rule, “law firm” includes a professional law corporation, partnership of professional law corporations or any combination thereof, the Newfoundland and Labrador Department of Justice and Public Safety, the Newfoundland and Labrador Legal Aid Commission, the Department of Justice (Canada) and one or more members of the society practising in any other unit of a public body, Crown Corporation, or as in-house counsel in a private enterprise.

(Adopted: Rule 9.01.1, Special Term Convocation, December 6, 2004; Rule 9.01.1(a, b & d): Amended Summer Term Convocation, June 10, 2005;)


Consideration by the vice-president

9.02 (1) On receipt of written documentation raising concerns about a member, the vice-president shall review it to determine whether or not any concerns raised constitute an allegation and

  1. ) if the vice-president determines the written documentation does not constitute an allegation the vice-president shall provide notice to the writer; or
  2. ) if the vice-president determines the written documentation does constitute an allegation the vice-president shall deal with the allegation pursuant to the Act and the rules.

Respondent to receive copy of allegation

(2) The vice-president shall send a copy of the allegation to the respondent.

(Amended: Rule 9.02(1 & 2), Summer Term Convocation, June 6, 2003)

ALTERNATE DISPUTE RESOLUTION

Consent

9.03(1) The vice-president may attempt to resolve the allegation through alternate dispute resolution at any time prior to a complaint being referred to discipline with the written consent of the complainant and the respondent.

Written response not required

(2) The vice-president may dispense with the requirement for the respondent to file a written response under rule 9.04(3) where the vice-president is of the opinion that the allegation may be satisfactorily resolved through alternate dispute resolution.

Parties

(3) Alternate dispute resolution shall be conducted by the vice-president or a person appointed by the vice-president. The parties to alternate dispute resolution are the complainant, the respondent and, if the vice-president considers it necessary, the society.

Confirmation of resolution

(4) Where the allegation is satisfactorily resolved through alternate dispute resolution the person conducting the alternate dispute resolution shall, within 7 days, provide written notice of the confirmation of the resolution of the allegation to the complainant, the respondent and the director of professional responsibility.

Where alternate dispute resolution unsuccessful

(5) Where alternate dispute resolution does not satisfactorily resolve the allegation, the vice-president shall proceed to investigate the allegation under rule 9.04.

(Adopted: Rules 9.01-9.03, Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000; Amended: Rule 9.03(1-5), Summer Term Convocation, June 6, 2003)

INVESTIGATION


Vice-president investigation

9.04 (1) Subject to rules 9.02 and 9.03, the vice-president may investigate the allegation and may require a written response from the respondent.

(Adopted : Rule 9.04(1), Summer Term Convocation, June 9, 2000)

(2) The vice-president may appoint such person or persons as the vice-president considers appropriate to assist in the investigation of the allegation.

(Adopted: Rules 9.04(2), Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Written response within 14 days

(3) Subject to rule 9.03(2) the respondent shall:

  1. ) respond in writing to the allegation and to any written request for a response from the vice-president or the complaints authorization committee and the response shall be signed by the respondent personally or by counsel for the respondent;
  2. ) respond within 14 days after the allegation or the written request for a response is received or by such other date as may be set by the vice-president or the complaints authorization committee; and
  3. ) provide such information or explanation as may be requested by the vice-president or the complaints authorization committee.

(Amended: Rule 9.04(3), Summer Term Convocation, June 9, 2000)

Proof of delivery

(4) A request for a response may be made either personally, by delivering a copy to the respondent’s home, address of record, or their solicitor’s address of record, or by other appropriate means including via email to the email address of record.

Failure to respond

(5) A respondent’s failure to respond in writing to the allegation or to inquiries by the vice-president or the complaints authorization committee within 14 days or by the date set by the vice-president or the complaints authorization committee, without reasonable excuse, may constitute conduct deserving of sanction.

(Amended: Rules 9.04(4) and (5), Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Information to complainant

(6) After receiving a response from a respondent, the vice-president may send to the complainant a copy of the response or any part of it or a summary of it or any information or documentation acquired in the course of the investigation provided that any such disclosure would not have the effect of disclosing privileged information.

(Amended : Rule 9.04(6), Summer Term Convocation, June 9, 2000; Amended: Rule 9.04(1-6), Summer Term Convocation, June 6, 2003)


Vice-president report

9.05 After investigating the allegation the vice-president shall submit a report of the investigation to the complaints authorization committee

(Adopted: Rules 9.05, Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000; Amended: Rule 9.05, Summer Term Convocation, June 6, 2003)

COMPLAINTS AUTHORIZATION COMMITTEE

Consideration

9.06 (1) The complaints authorization committee shall, pursuant to s. 45 of the Act, consider the allegation and the report submitted by the vice-president.

Investigation

(2) The complaints authorization committee may appoint such person or persons as the complaints authorization committee considers appropriate to assist in its investigation of the allegation.

Failure to appear

(3) A respondent’s failure to appear before the complaints authorization committee on the date and at the time set, without reasonable excuse, may constitute conduct deserving of sanction.

(Adopted: Rules 9.06(1), (2) and (3), Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Action on allegations

(4) After considering the allegation, the complaints authorization committee may exercise one or more of the powers set out in s. 45 of the Act.

Counsel and caution

(5) If the complaints authorization committee counsels or cautions a respondent, the society shall advise its members of the circumstances giving rise to counselling or cautioning but omitting information that may disclose the identity of the respondent.

Notice

(6) The vice-president shall notify the complainant and the respondent in writing of the disposition of the allegation and of the fact that a respondent has been cautioned or counselled, if applicable.

(Adopted: Rules 9.06(4-6), Summer Term Convocation, June 9, 2000; Amended: Rule 9.06(1,5 &6), Summer Term Convocation, June 6, 2003)

RESPONDENT

Obligation of respondent

9.07 (1) A respondent shall co-operate fully in an investigation and shall provide access to all files and other records in the custody or under the control of the respondent which are relevant to the subject of the investigation.

(2) In the course of an investigation, solicitor-client privilege shall not apply as against the society to enable the respondent or the complainant to refuse to produce any information or documentation in their possession or under their control.

(Adopted: Rules 9.07(1) and (2), Winter Term Convocation, January 24, 2000 and Executive Committee, February 2, 2000)

Disclosure of Information

(3) All information and documentation obtained, which, but for this rule, would be subject to solicitor-client privilege, shall be held in confidence and shall not be disclosed except to a person carrying out duties under the Act or the rules, the complainant in circumstances contemplated by rule 9.04(6) or otherwise as required by law.

(Adopted: Rule 9.07(3), Spring Term Convocation, April 3, 2000)

(4) Notwithstanding rule 9.07(3), the society may, either upon request or at its own initiative, disclose information about the respondent to any society provided that the disclosure of information does not contravene solicitor-client privilege.

(Rule 9.07(4): Adopted Benchers Convocation, April 10, 2017)

APPLICATION TO VARY INTERIM SUSPENSION AND PRACTICE RESTRICTIONS

9.07A(1) Prior to the appointment of an adjudication tribunal in accordance with s. 46 of the Law Society Act, 1999, a respondent may make an application to the complaints authorization committee to vary a decision of that committee to suspend or restrict the respondent’s license.

(2) An application to vary an interim suspension and/or practice restriction(s) shall be filed with the director of professional responsibility and a copy shall be provided to counsel for the society.

(3) On an application to vary:

  1. ) both the respondent and the society shall be given a reasonable opportunity to make submissions in writing;
  2. ) the complaints authorization committee may allow oral submissions if, in their discretion, it is appropriate to do so; and
  3. ) if, for any reason, a member of the quorum of the complaints authorization committee that made the decision is unable to participate in the application to vary, the chairperson of the complaints authorization committee may assign an alternate member of the complaints authorization committee to consider the application.

(4) The complaints authorization committee may:

  1. ) vary the interim suspension and/or practice restriction(s) as requested;
  2. ) vary the interim suspension and/or practice restriction(s) as, in its sole discretion, it deems appropriate; or
  3. ) dismiss the application.

COMPLAINT AND NOTICE REQUIREMENTS

Contents of the complaint

9.08(1) The complaint shall include the:

  1. ) respondent’s name;
  2. ) provisions of the Act, Rules and Code of Professional Conduct relied upon; and
  3. ) particulars of the conduct giving rise to the complaint.

(2) The names of clients and any other third-party non-lawyers shall be referenced by initials in the complaint and any identifying information relating to clients and any other third-party non-lawyers shall be redacted.

(3) Where multiple allegations relating to a respondent are referred to the disciplinary panel, the society may consolidate them into one complaint.


Joinder and severance

9.09(1) All charges that form a complaint and all complaints relating to a respondent that have been referred to an adjudication tribunal before the date set for the commencement of the hearing shall be joined and shall be heard by the same adjudication tribunal.

(2) Prior to the commencement of the hearing, the respondent or the society may apply in writing to the adjudication tribunal for an order that:

  1. ) one or more charges in a complaint be determined in a separate hearing from other allegations in the same complaint; or
  2. ) one or more complaints be heard separately.

(3) An application under rule 9.09(2) shall:

  1. ) state the grounds for the order sought; and
  2. ) be copied to the other party.

(4) The adjudication tribunal may:

  1. ) allow the application with or without conditions;
  2. ) dismiss the application; or
  3. ) make any order it deems appropriate.


Notice of the complaint

9.10(1) Within 90 days after the complaints authorization committee instructs the vice-president to file the complaint against the respondent and refers the matter to the disciplinary panel, the society shall provide a copy of the complaint to the:

  1. ) complainant;
  2. ) respondent; and
  3. ) chairperson of the disciplinary panel.

(2) A copy of the complaint shall be provided to the adjudication tribunal appointed to hear it.

(3) Further distribution of the complaint is within the discretion of the adjudication tribunal.


Notice of referral to a hearing

9.11(1) The respondent shall be provided with a copy of the notice of referral to a hearing at the same time as the complaint.

(2) Subject to rule 9.12, the society shall publish the notice of referral to a hearing no earlier than 15 days after the respondent has been provided with a copy of the notice of referral to a hearing.

(3) The notice of referral to a hearing shall be published on the society’s website and shall include the:

  1. ) respondent’s name; and
  2. ) general nature of the charges.


Notice of application to vary the content of the notice of referral to a hearing

9.12(1) The respondent may give to the society written notice of an intention to make application to the adjudication tribunal to vary the content of the notice of referral to a hearing.

(2) The respondent shall provide the society with such written notice within 14 days of service of the notice of referral to a hearing.

(3) The respondent shall file an application to vary with the adjudication tribunal within 14 days of the appointment of the adjudication tribunal being finalized and the application shall be considered at a pre-hearing conference.

(4) If the respondent gives the society notice in accordance with rule 9.12(1), the society shall not publish the notice of referral to a hearing or notice of the hearing date until the adjudication tribunal makes a determination on the respondent’s application to vary the notice.

(5) The adjudication tribunal may give directions regarding the content of the notice and shall provide reasons where a variance is allowed.

(6) The society shall comply with the directions given by the adjudication tribunal.


Amending notice periods

9.13(1) The notice requirement outlined in rule 9.12(2) may be waived or shortened with the consent of both the respondent and the society.

DISCIPLINE HEARING


Appointment of the adjudication tribunal and withdrawals

9.14(1) The chairperson of the disciplinary panel shall appoint an adjudication tribunal as soon as practicable following receipt of the complaint, and shall provide notice to the respondent and the society when the adjudication tribunal is appointed.

(2) Where the respondent or the society wishes to challenge for cause the appointment of a member of the adjudication tribunal, the challenge shall be raised with the adjudication tribunal at the earliest opportunity.

(3) The adjudication tribunal shall hear submissions, either in person or in writing, from the respondent and the society with respect to the challenge and shall decide the issue(s) raised.

(4) Where the adjudication tribunal decides that the appointment should be set aside, the appointee shall withdraw from the adjudication tribunal and shall immediately notify the chairperson of the disciplinary panel.

(5) The chairperson of the disciplinary panel shall appoint another member to the adjudication tribunal as soon as practicable following the withdrawal of any member of the adjudication tribunal.

(6) Where all members of the adjudication tribunal withdraw from their appointment, the chairperson of the disciplinary panel shall appoint a new adjudication tribunal as soon as practicable following the withdrawal of the adjudication tribunal.

(7) The adjudication tribunal appointment is final when each member accepts their appointment and any challenge to the appointment of a member of the adjudication tribunal has been resolved.

(8) The adjudication tribunal shall immediately provide notice to the parties and the chairperson of the disciplinary panel if, at any time during the course of a proceeding, any member of the adjudication tribunal identifies a conflict of interest or is otherwise required to withdraw from their appointment.


Pre-hearing conference

9.15(1) A pre-hearing conference shall commence within 30 days of the adjudication tribunal being appointed or as otherwise consented to by the respondent and the society.

(2) The requirement to conduct a pre-hearing conference may be waived with the agreement of the parties.

(3) The adjudication tribunal or the chairperson of the adjudication tribunal, after consulting with the parties on their availability, shall provide written notice to the parties of the time, date and place of the pre-hearing conference.

(4) The notice in rule 9.15(3) shall confirm that the adjudication tribunal may proceed in the absence of the respondent if the respondent or the respondent’s counsel does not attend the pre-hearing conference.

(5) A pre-hearing conference shall be held in private.

(6) At a pre-hearing conference the adjudication tribunal may consider:

  1. ) setting a date for the entering of the plea;
  2. ) an application for the notice to vary the contents of the notice of referral to a hearing, if by consent, or setting a date for the hearing of an application to vary the contents of the notice of referral to a hearing;
  3. ) the identification and/or simplification of the issues;
  4. ) any possibility of admissions or agreed statements of fact;
  5. ) the identification of witnesses in the proceeding;
  6. ) the discovery and production of documents;
  7. ) deadlines for the filing of expert and/or other reports;
  8. ) the desirability of conducting the hearing or a part of it in camera;
  9. ) the necessity of an additional pre-hearing conference;
  10. ) the number of days the parties anticipate requiring for the hearing;
  11. ) setting a date for the commencement of the hearing; and
  12. ) any other matters that may aid in the disposition of the complaint.

(7) The adjudication tribunal may make orders relating to issues resolved by agreement during a pre-hearing conference.

(8) The adjudication tribunal shall provide minutes of matters resolved during a pre-hearing conference that do not require an order and the minutes will form part of the record.

(9) Unless a member or members of the adjudication tribunal are required to withdraw from their appointments, the adjudication tribunal conducting the pre-hearing conference shall be the adjudication tribunal hearing the complaint.


Commencement of the hearing

9.16(1) The chairperson of the adjudication tribunal shall set a date for the hearing to commence that is no earlier than 30 days after the conclusion of the pre-hearing conference, unless otherwise consented to by the respondent and the society.

(2) The date, time and place for the hearing to commence shall be set:

  1. ) with the consent of the parties; or
  2. ) as otherwise determined by the chairperson.


Notice of the hearing date

9.17(1) When a date is set under rule 9.16(1), the chairperson of the adjudication tribunal shall provide the parties with a notice of the hearing date at least 30 days before the date set for the commencement of the hearing, unless the respondent and the society consent to a shorter notice period.

(2) An order arising from an application to vary the content of the notice of referral to a hearing shall apply to the notice of the hearing date.

(3) Subject to an order arising from an application to vary the content of the notice of a referral to a hearing, the society shall publish the notice of the hearing date as soon as practicable after the hearing date is scheduled.

(4) The notice of the hearing date shall be published on the society’s website and shall include the information outlined in rule 9.11(3) along with the date(s), time and place for the hearing.


Adjournments

9.18(1) The adjudication tribunal may, on its own motion, adjourn a pre-hearing conference, a hearing of an application, the complaint and/or sanction on any terms and conditions it considers just.

(2) The respondent or the society may request an adjournment of a pre-hearing conference, hearing on an application, the complaint and/or sanction by immediately notifying the other party and the adjudication tribunal.

(3) If the other party consents to the request for an adjournment, the requesting party may serve and file a written request for the adjournment stating that it is made by consent and the adjudication tribunal may:

  1. ) refuse the request;
  2. ) reschedule the hearing without a hearing on the request; or
  3. ) require a hearing on the request.

(4) If the other party does not consent to a request for an adjournment, the requesting party shall file an application as soon as possible and the application shall contain:

  1. ) the reasons for the request for an adjournment; and
  2. ) the length of time requested for the adjournment.

(5) The adjudication tribunal may grant or deny a request or an application for an adjournment on any terms and conditions it considers just.


Mode of proceedings

9.19(1) Any proceeding before the adjudication tribunal may be conducted in person, in writing, by telephone or by electronic communication including videoconference, as determined by the adjudication tribunal.

(2) In determining the mode of proceedings, the adjudication tribunal may consider any relevant factors, including:

  1. ) the nature of the hearing, the subject matter of the hearing, and the issues to be addressed, including whether they are issues of fact, law or procedure;
  2. ) the evidence to be presented, including whether facts are in dispute and credibility is an issue;
    1. ) the cost, efficiency and timeliness of the hearing or the proceeding;
    2. ) the fairness of the hearing process to, and the convenience of, each of the parties; and
    3. ) compliance with s. 47(3) of the Law Society Act, 1999 which requires that a hearing shall be conducted in public.

(3) Unless otherwise directed by the adjudication tribunal, hearings shall be held in person.

(4) The adjudication tribunal may permit a hearing to proceed in writing where the respondent and the society have agreed to:

  1. ) file an agreed statement of facts;
  2. ) file a joint submission on sanction; and
  3. ) publish and make available to the public the agreed statement of facts and joint submission on sanction.

(5) A party may request an alternative to an in-person hearing by filing an application with the adjudication tribunal and concurrently providing the other party with notice of the application.

(6) A party may object to the requested mode of proceeding by filing with the adjudication tribunal and providing to the other party, a notice of objection, outlining the reasons for the objection, within 3 days after the application is served on the party.

(7) The media may, at the discretion of the adjudication tribunal, make submissions with respect to any request for an alternative to an in-person hearing that may affect public access to all or part of the hearing.

(8) On an application for an alternative to an in-person hearing, the adjudication tribunal may:

  1. ) grant the application;
  2. ) dismiss the application; or
  3. ) make any order with respect to the mode of proceedings it deems appropriate.


Recordings and transcripts

9.20(1) Unless otherwise directed by the adjudication tribunal, all proceedings before the adjudication tribunal, with the exception of pre-hearing conferences, shall be recorded by the society.

(2) No other person is permitted to transmit or record the proceedings.

(3) Unless otherwise directed by the adjudication tribunal, the society is not required to transcribe the recorded proceedings.

(4) The adjudication tribunal and the parties to the proceeding may request a copy of the audio recording and/or transcript of the hearing.

(5) Where the adjudication tribunal seeks a copy of the recording and/or transcript, the society shall incur the initial cost.

(6) In its decision on sanction, the adjudication tribunal may make any order it deems appropriate with respect to the cost of the transcript.

(7) A party seeking a copy of the recording and/or transcript is responsible for the cost of such recording and/or transcript.

(8) The audio recording and/or the hearing transcript of the adjudication tribunal proceeding shall not be disclosed to non-parties.

(9) Notwithstanding 9.20(8), the adjudication tribunal and the parties may disclose a copy of the audio recording and/or hearing transcript as required by law.


Application for particulars

9.21(1) A respondent may, at any time before the respondent has entered a plea, apply to the adjudication tribunal, in writing, for the particulars of the alleged misconduct.

(2) If satisfied that the complaint does not contain sufficient detail of the circumstances of the alleged conduct deserving of sanction, the adjudication tribunal may direct that the society provide further details of the particulars of the alleged misconduct.

(3) Details of the particulars disclosed pursuant to rule 9.21(2) shall be:

  1. ) in writing; and
  2. ) delivered to the respondent or the respondent’s counsel.


Amending the complaint

9.22(1) The society may amend any charge in a complaint:

  1. ) before the hearing commences, by giving written notice to the respondent; and
  2. ) after the respondent has entered a plea, with the consent of the respondent.

(2) The adjudication tribunal may amend a complaint after the respondent has entered a plea on an application filed by the respondent or the society to:

  1. ) correct an alleged defect in substance or form; or
  2. ) make the charge conform to the evidence where:
    1. ) there appears to be a variance between the evidence and the charge; or
    2. ) the evidence discloses professional misconduct or conduct unbecoming, professional incompetence or incapacity that is not alleged in the charge.

(3) The adjudication tribunal shall not amend the complaint until the respondent and the society have been given the opportunity to make submissions respecting the proposed amendment.


Compelling evidence

9.23(1) Before the date set for the commencement of the hearing, or at any time during the hearing at the adjudication tribunal’s discretion, the respondent or the society may request a summons (subpoena) or authorization be issued to:

  1. ) compel the attendance of a witness and give evidence orally or in writing;
  2. ) require a person to produce documents or records, including documents or records maintained in electronic form, and things in their custody or control that may relate to the hearing; or
  3. ) inspect premises.

(2) The adjudication tribunal may require submissions from either or both parties with respect to a request for a summons or authorization.

(3) After considering any submissions, the adjudication tribunal shall:

  1. ) make the order requested;
  2. ) refuse to issue the summons or authorization; or
  3. ) make any order with respect to the request for a summons or authorization deemed appropriate.

(4) The chairperson of the adjudication tribunal may execute a summons on behalf of the adjudication tribunal.


Disclosure of evidence

9.24(1) As soon as practicable after a complaint is provided to the respondent, the society shall disclose to the respondent a copy of all relevant documents in the possession of the society or under its control or power.

(2) Not less than two weeks before the date set for the commencement of the hearing, the respondent and the society shall provide to each other the following:

  1. ) the names of each witness that the party intends to call to give evidence at the hearing;
  2. ) copies of any written statements, or where no written statements exist, a summary of the evidence that the party expects will be given by that witness;
  3. ) a summary of the qualifications of that witness (in addition to (b)), if that witness will be called to give expert evidence; and
  4. ) copies of all documents that the party intends to introduce into evidence at the hearing unless those documents have already been provided.

(3) Where the respondent or the society has not complied with rule 9.24(2), the adjudication tribunal may, in its discretion, allow the introduction of evidence that has not been properly disclosed, or exclude evidence that would otherwise be admissible, and may make such directions that it considers necessary to ensure that a party is not prejudiced.

(4) The adjudication tribunal’s permission pursuant to rule 9.24(3) may be given on such terms or conditions as the adjudication tribunal may determine, including the following:

  1. ) the adjudication tribunal may adjourn the hearing for such time as the adjudication tribunal considers reasonable to permit the other party the opportunity to respond to such evidence;
  2. ) the adjudication tribunal may require the party who requests the introduction of such evidence to agree to pay an amount of costs, as estimated by the adjudication tribunal, which may be incurred by the respondent or the society as a result of the failure to disclose such evidence in accordance with 9.24(2).


Applications for other relief

9.25(1) The respondent or the society may:

  1. ) no later than 14 days before the date set for the commencement of the hearing; or
  2. ) during a hearing with the consent of the adjudication tribunal;

file an application for relief not otherwise addressed in these rules.

(2) An application under this rule shall be:

  1. ) filed with the adjudication tribunal and provided to the other party at least 14 days prior to the date set for the commencement of the hearing; or
  2. ) filed in accordance with directions provided by the adjudication tribunal.

(3) The application shall specify:

  1. ) the relief sought;
  2. ) a summary of the grounds for the relief sought, including reference to the applicable law;
  3. ) a list of evidence and/or other documents that will be relied on; and
  4. ) the proposed mode of proceedings for the application.

(4) In response to an application for other relief, the adjudication tribunal may:

  1. ) set a date for the hearing of the application and/or filing deadlines and provide notice of the hearing date and/or filing deadlines to the respondent and the society;
  2. ) dismiss the application without a hearing; or
  3. ) make any order deemed appropriate with respect to the application.


Memorandum of fact and law

9.26(1) Unless otherwise directed by the adjudication tribunal, the society shall file with the adjudication tribunal and provide to the respondent, a copy of its memorandum of fact and law at least 14 days prior to the date set for the commencement of the hearing.

(2) Unless otherwise directed by the adjudication tribunal, the respondent shall file with the adjudication tribunal and provide to the society, a copy of their memorandum of fact and law at least 7 days prior to the date set for the commencement of the hearing.


Witnesses

9.27(1) A witness appearing before an adjudication tribunal may raise procedural issues affecting their testimony, either through their counsel or through counsel for one of the parties.

(2) A witness who is summoned to attend a hearing before an adjudication tribunal is entitled to the same conduct money and payment for costs and/or expenses as a witness at a trial in the Supreme Court.


Failure to appear

9.28(1) If a respondent fails to appear at a hearing or for the resumption of an adjourned hearing after notice thereof, the adjudication tribunal may proceed with the hearing in the respondent’s absence.


Hearings on the complaint and sanction

9.29(1) Unless otherwise directed by the adjudication tribunal, submissions and/or evidence on the complaint and sanction shall be heard separately.


Conduct of the hearing

9.30(1) Unless otherwise directed by the adjudication tribunal, an in-person hearing will generally be conducted in the following order:

  1. ) the society may make an opening address, which may be followed by an opening address by the respondent;
  2. ) the society shall present its evidence and examine its witnesses, who may be cross-examined by the respondent;
  3. ) if the respondent has not already done so, the respondent may make an opening address and shall present their evidence and examine their witnesses, who may be cross-examined by the society;
  4. ) the society may present evidence in reply to any evidence presented for the first time by the respondent and examine witnesses;
  5. ) after cross-examination of a witness, the party who called the witness may further examine the witness with respect to matters raised for the first time in cross-examination;
  6. ) following examination and cross-examination of a witness, the adjudication tribunal may ask questions of the witness and the parties may ask further questions with respect to matters raised by the adjudication tribunal;
  7. ) if the adjudication tribunal requests or permits, the parties may serve and file, by dates ordered by the adjudication tribunal, additional submissions in writing on the facts and legal argument; and
  8. ) the society may make closing submissions, followed by the respondent’s closing submissions and the society’s reply to issues raised by the respondent.

(2) The adjudication tribunal may control the scope and manner of questioning of a witness.

(3) The adjudication tribunal may order a witness to be excluded from a hearing until the witness is called to give evidence, unless the presence of the witness is necessary to instruct a party’s counsel or agent, in which case the adjudication tribunal may require the witness to be called to give evidence before other witnesses are called.

(4) If the adjudication tribunal orders the exclusion of a witness, evidence given during the witness’s absence from the hearing shall not be communicated to the witness until the witness has completed giving evidence, except with leave of the adjudication tribunal.

(5) The adjudication tribunal may permit a party to present the evidence of a witness or proof of a particular fact or document by affidavit, unless another party reasonably requires the attendance of the witness at the hearing for cross-examination.

(6) Where the adjudication tribunal directs that the hearing may proceed in writing, the adjudication tribunal shall:

  1. ) specify the timelines for the filing and provision of written submissions; and
  2. ) specify which documents filed shall be published in accordance with s. 47(3) of the Law Society Act, 1999 to give effect to the requirement that a hearing shall be conducted in public.


Majority decision of the adjudication tribunal

9.31(1) The decision of at least two (2) members of the adjudication tribunal on any charge in a complaint and on sanction shall be the decision of the adjudication tribunal on that complaint and sanction.


Decision on the complaint

9.32(1) The chairperson of the adjudication tribunal shall make reasonable efforts to file with the executive director and provide to the parties, the complainant and the minister, the adjudication tribunal’s written decision on the complaint and its reasons for that decision within 60 days of completion of the hearing.


Hearing on sanction

9.33(1) If the respondent is found guilty on the complaint(s) the adjudication tribunal shall make reasonable efforts to resume the hearing in order to determine the appropriate sanction within 60 days of the release of its decision on the complaint. The conduct of the hearing on sanction shall occur in accordance with rule 9.30.


Decision on sanction

9.34(1) Where the adjudication tribunal decides that a respondent is guilty, it shall make an order with respect to sanction as set out in ss. 49 or 50 of the Act.

(3) The chairperson of the adjudication tribunal shall make reasonable efforts to file with the executive director and provide to the parties, the complainant and the minister:

  1. ) a written decision on sanction, including the reasons therefor; and
  2. ) an order,

within 30 days of completion of the hearing on sanction.


Provision of a decision or order of the adjudication tribunal

9.35(1) A copy of any decision or order made in accordance with these rules shall be provided to the executive director, the parties and the complainant and the minister either personally, by delivering a copy to their address of record, home, their solicitor’s address of record, or by other appropriate means including via email.


Effect of the decision

9.36(1) A decision or order of the adjudication tribunal shall take effect upon service unless otherwise ordered by the adjudication tribunal.


Suspensions

9.37(1) Following the expiration of any period of suspension imposed during discipline proceedings, a respondent will be reinstated to non-practicing status and non-practicing fees shall apply.

(2) A respondent shall apply in writing to the society before having their status changed to that of a practicing member.

(3) On an application to have their status changed to that of a practicing member, the vice-president may reinstate a respondent or refer the application to the education committee, which:

  1. ) shall consider any conditions and/or restrictions imposed by the adjudication tribunal; and
  2. ) may impose any conditions and/or requirements which it considers appropriate.

(4) Where an application made under rule 9.37(2) is approved, the respondent’s status will not change until all outstanding fees and a reinstatement fee set by Benchers have been paid and the respondent is compliant with any other restrictions and/or conditions imposed in accordance with the rules.

(5) A respondent may apply in writing to Benchers to resign.

(6) On an application to resign, Benchers:

  1. ) shall consider the application in accordance with rule 2.23; and
  2. ) may impose such conditions and/or restrictions on resignation which it considers appropriate.


Applications under s. 53 and s. 54 of the Act

9.38(1) An application under s. 53 of the Act shall be in writing and shall be delivered to the chairperson of the disciplinary panel.

(2) An application under s. 54 of the Act shall be in writing and shall be delivered to the society’s office to the attention of the director of professional responsibility.

(3) An application under ss. 53 or 54 of the Act shall be served on the parties in the same manner as prescribed in rule 9.40.

(4) Where an application under ss. 53 or 54 of the Act has been referred to an adjudication tribunal, the chairperson of the disciplinary panel shall appoint an adjudication tribunal in accordance with s. 46 of the Act.

(5) Where possible, the chairperson shall reappoint the adjudication tribunal that heard the complaint at first instance.


Procedure

9.39(1) Prior to making an order under ss. 53 or 54 of the Act, the adjudication tribunal may make inquiries and hear representations from the parties that the adjudication tribunal considers appropriate.

(2) The adjudication tribunal shall hear an application under ss. 53 or 54 of the Act within 30 days of being appointed or as otherwise consented to by the respondent and the society.

(3) Within 60 days of completion of the hearing of the evidence and receipt of submissions on the application, the chairperson of the adjudication tribunal shall make reasonable efforts to file with the executive director and provide to the parties, the adjudication tribunal’s written decision on the application and the reasons for its decision.

(4) The order of the adjudication tribunal shall be served in the same manner as prescribed in rule 9.40 and shall take effect upon service on the respondent, unless otherwise ordered by the adjudication tribunal.


Notice requirements

9.40(1) All notice requirements outlined in this rule may be made either personally, by delivering a copy to the respondent’s home, address of record, or their solicitor’s address of record or by other appropriate means including via email to the email address of record.


Publication

9.41(1) Subject to s. 51 of the Act the society shall give notice of the finding to the members of the society, to the complainant and to any other governing body of the legal profession in Canada of which the respondent is a member, which notice shall include:

  1. ) the name of the respondent;
  2. ) the nature of the charge of which the respondent was found guilty, including brief particulars; and
  3. ) the disciplinary action.

(2) Where a respondent is disbarred or struck off the rolls or suspended from practice or ordered to refrain from practising in respect of certain areas of law, a notice to that effect shall be provided to the Courts, including the Judges and the Clerks, to any other governing body of the legal profession in Canada, to the members of the society and to the public.

(Adopted: Rule 9.28, Summer Term Convocation, June 8, 2001; Amended: Rule 9.28, Summer Term Convocation, June 6, 2003; Amended: Rule 9.28 Fall Term Convocation, October 6, 2008)


Bankruptcy and insolvency

9.42(1) Every member or student-at-law admitted as such by the society shall immediately notify the executive director upon:

  1. ) receipt of a petition under the Bankruptcy and Insolvency Act (R.S. 1985, C. B-3) in which the court is asked to make a receiving order with respect to the property of the member or student-at-law;
  2. ) the making by the member or student-at-law of an assignment under the Bankruptcy and Insolvency Act; or
  3. ) the making by the member or student-at-law of a proposal under the Bankruptcy and Insolvency Act.

(2) The executive director may require the member or student-at-law to submit additional information for more complete examination outlining the circumstances relating to any of the matters referred to in subsection 9.42(1) and the member or student-at-law shall be obliged to respond fully to the executive director’s request within 7 days after receiving the request for further information.

(3) Upon occurrence of one or more of the events as set out in rule 9.42(1)(b) or (c), or in the event that a receiving order is made against a member or student-at-law under the Bankruptcy and Insolvency Act then that member’s entitlement to engage in the practice of law or that student-at-law’s articles of clerkship is suspended pending a review by the executive committee.

(4) A member or student-at-law affected by rule 9.42(3) may make an immediate written submission to the executive director and upon receipt of same the executive committee may, after ascertaining that the protection of the public will not be jeopardized, reinstate the member’s entitlement to engage in the practice of law or the student-at-law’s articles of clerkship, and attach such conditions to their practice of law or articles of clerkship as it deems reasonable for such protection.

(5) A member or student-at-law suspended pursuant to rule 9.42(3) and who makes a written submission in accordance with rule 9.42(4) shall be entitled to a hearing before the executive committee as soon as practicable and in no case longer than 7 days from the date of their written submission, unless the member or student-at law requests a longer period of time be extended for the hearing.


Judgment and orders

9.43 A member or student-at-law shall notify the executive director immediately upon:

  1. ) a judgment becoming outstanding against them and remaining unsatisfied for a period of 30 days, whether or not an appeal from the judgment has been taken;
  2. ) a contempt order having been made against them; or
  3. ) the making of an order for costs against them personally under rule 55.14 of the Rules of Court.


Duty to report guilty plea or finding of guilt

9.44(1) A member shall advise the executive director in writing immediately upon being charged with respect to any offence pursuant to:

  1. ) the Criminal Code of Canada;
  2. ) the Controlled Drugs and Substances Act;
  3. ) the Income Tax Act; or
  4. ) any other Federal or Provincial legislation where the offence relates to a breach of trust, dishonesty or fraud, or the conviction for such offence may result in a period of incarceration.

(Rule 9.31(1): Adopted Benchers Convocation, April 10, 2017)

(2) A member shall advise the executive director in writing immediately upon pleading guilty or being found guilty with respect to any offence pursuant to:

  1. ) the Criminal Code of Canada;
  2. ) the Controlled Drugs and Substances Act;
  3. ) the Income Tax Act;
  4. ) any other Federal or Provincial legislation where the offence relates to a breach of trust, dishonesty or fraud, or the conviction for such offence may result in a period of incarceration.

(Rule 9.31(2): Adopted Benchers’ Convocation, April 10, 2017)

Professional misconduct

9.45 The occurrence of an event set out in rules 9.42, 9.43, or 9.44 may be treated as an allegation of conduct deserving of sanction.

(Rule 9.29-9.32: Adopted Winter Term Convocation, February 22, 2005)
(Rule 9: Amended throughout, Benchers’ Convocation, October 2, 2020)