The Perpetuation of Problems in the Public Perception of Legal Professionals: an Analysis of the Erroneous ‘Mitigating Factors’ in Law Society of Upper Canada v. Hunter
For Ontario’s self-governing legal profession, strong rules are a positive step towards public legitimacy, but that legitimacy evaporates if those rules go unenforced. Amidst the debate over whether the Law Society of Upper Canada (LSUC) should continue to govern itself, the LSUC’s duty to protect the public interest requires attention. Law Society of Upper Canada v Hunter, 2007 ONLSHP 27 [Hunter] is pivotal in this conversation because it shows the governing body neglecting its duty to protect the public interest. In Hunter, the panel fails to sufficiently respond to the conflict of interest stemming from Hunter’s romantic relationship with a client because its decision does not protect the profession’s public integrity. It lends too much credence to ‘mitigating factors’ and ignores the harm to the public’s perception of the legal profession. If the profession wishes to self-govern, it must show the public a commitment to strict discipline. While the panel pays lip service to such ideals, its leniency in Hunter undermines that duty to protect the public interest.
The Panel’s Emphasis on Hunter’s Character Undermines Public Faith in the Profession
The most significant factor the panel relies on to mitigate punishment in Hunter is Hunter’s good character. This is problematic because his character does not determine the public’s feelings about lawyers. The panel relies on letters from Hunter’s friends that “spoke to the member’s character, integrity, and commitment to the profession.” Based on those letters, the panel concludes Hunter “remains capable of serving in the future as a valuable member of his firm, and of the profession” (para. 56). This excerpt shows the panel’s lack of concern for public perception. The public may not trust assurances from Hunter’s friends, and his professional struggles after this incident underline that mistrust. However, the panel relies on that mistrust to claim Hunter has already suffered. The panel’s lenient treatment focuses too much on Hunter and not enough on the public’s image of the profession. Hunter may have good character, but emphasizing that overlooks how this issue reflects on the whole profession.
Hunter is unique because Hunter was the treasurer of the LSUC. However, the panel’s response to Hunter’s status fails to maintain the perception of integrity as the panel used his career as evidence mitigating his punishment:
The member should not be treated more harshly as a result of his former status as Treasurer and as a bencher. Nor, of course, should he receive favoured treatment, although he is entitled to make the important point that his entire career is incompatible with this misconduct and that, therefore, this misconduct can be regarded as “out of character.” We have no difficulty in so finding. (para. 55, emphasis added)
This is more evidence that the panel relies on Hunter’s character to mitigate punishment. While it may be legally accurate that Hunter should not receive different treatment, that point defies reality in the eyes of public. Regardless of the safeguards separating the panel from benchers, using this to lessen Hunter’s penalty appears suspect to any observer. By not holding a leader to a higher standard, the panel erodes public trust in the profession’s self-regulation.
The Panel’s Emphasis on the Moderateness of the Consequences in Hunter’s Situation Fails to Respond to Public Interest Concerns
In addition to character, the panel uses a lack of severe consequences to mitigate Hunter’s penalty. This raises mistrust as the public may see the actual outcome as irrelevant given the damage Hunter could have caused. The panel points out “there is no evidence before us that the member’s legal work was actually affected by the conflict of interest” (para. 52). This statement is at best an unverifiable claim with little value given the probability of issues arising from a conflict of interest. At worst it is a lie or a rejection of reality. This assurance’s accuracy is impossible to assess, so the panel should not rely on it to mitigate punishment. Hunter may have worked harder on this case at the expense of others or it may have had no impact on his actions. However, the panel cannot measure the consequences, so its decision to rely on them undermines its credibility and consequently the credibility of the profession’s self-governance.
Instead of raising issues related to the public perception of the profession, the panel commends Hunter’s treatment of the complainant. Again, the panel misplaces its focus because the impact of Hunter’s actions on this complainant is irrelevant. Still the panel applauds how Hunter “spared the complainant the ordeal of testifying at these proceedings [and] . . . spoke positively about the complainant’s attributes” (para. 51). These facts further undermine the panel’s credibility because its focus should be on how Hunter treated the client during the conflict not how he treated her once legal proceedings began. An amicable litigation process does improve the profession’s public image, but the panel should expect a lawyer to behave amicably rather than rewarding a lawyer for doing so. By rewarding Hunter, the panel suggests it is abnormal for litigants to act nicely. That suggestion does little to improve the public opinion of the legal profession or the profession’s self-regulation.
In conclusion, the LSUC’s disciplinary panel recognizes the need to be “mindful of the impact . . . upon the confidence of the public in the profession” (para. 55) in Hunter. However, it does not live up to that ideal. In the end, Hunter received a two-month suspension. This ‘slap on the wrist’ when the situation called for a severe punishment cements public distrust of the legal profession. The panel’s focus on Hunter’s character and the lack of severe consequences fails to reflect the need to maintain the appearance of a strict standard in the eyes of the public. Dialogue between legal professionals and the public is inherent in the law society’s duty to protect the public interest. However, if the public grows to distrust lawyers’ ability to self-govern, should lawyers also lose trust in their own disciplinary mechanism?
The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.