2012 NSBS Annual Report - Nova Scotia Barristers' Society

25 lawyers and firms, respecting funds
totalling $40,102.72. In the 2011/2012
year, only one application was made on
behalf of 11 lawyers and firms respecting
funds totaling $11,799.63.
This year’s application became more
complex than those previously filed as
the Society determined that some of
the affidavits filed by lawyers and law
firms included information that was
confidential and possibly privileged. As
a result, an application was made to
seal the file and an Order in this regard
was granted in February 2012. As a result
of our experience with this matter,
changes are being made to our process
for the next application to ensure that
there is no risk of disclosure of privileged
information in the application.
HEARING COMMITTEE
The Hearing Committee is a fully independent
committee of the Society,
which carries out responsibilities assigned
to it under Sections 41 to 48 of
the Legal Profession Act and Part 9 of
the Regulations made pursuant to the
Act. The Committee and any hearing
panel thereof have all the powers conferred
by the Act and the Regulations
as well as the powers, privileges and
immunities of a commissioner under
the Public Inquiries Act. Members are
appointed by Council. The Committee
members for this year consisted of 24
lawyers and four public representatives.
The work of the Hearing Committee
is of the highest importance in
terms of the Society’s right to self-govern
and to enhance the level of trust
and respect members of the public
have for the profession.
The Hearing Committee Chair is responsible
for empanelling a hearing
panel and appointing a Panel Chair.
Hearing panels generally consist of five
(5) members; however, a hearing panel
does not lose jurisdiction over a matter
if one of the members of the panel can
no longer sit on the panel as long as
there are at least three members of the
panel remaining. A panel of five will be
comprised of at least three (3) members
of the Society and a panel of three
(3) will be comprised of at least two (2)
members.
Following charges being served on a
lawyer, a copy of the charges is forwarded
to the Chair of the Hearing Committee,
who has 14 days to hold a pre-hearing
conference with the Counsel for the
Society and the lawyer for the purposes
of setting down the dates of the hearing
and determining the its length. The
Chair has the authority to set the matter
down if there is no agreement. A list
of potential hearing panel candidates
is provided to the lawyer’s counsel
for purposes of determining any conflicts.
Hearings are normally to be set
down within 90 days from the date of
service; however, the trend for the past
two years has been much longer, up to
180 days or more due to conflicts with
dates of counsel for both parties as well
as with panel members.
Hearings are open to the public. However,
a hearing panel has the authority
to make orders necessary to prevent
public disclosure of matters disclosed
at a hearing in the interest of protection
of solicitor-client privilege or
where the lawyer demonstrates that
compelling circumstances exist to justify
a temporary limitation on publication.
These matters and other procedural
or substantive issues are usually
addressed in a pre-hearing conference
call between the Chair of the hearing
panel and both parties. At the formal
hearing, the panel hears evidence, asks
questions, makes evidentiary rules and
receives submissions. The panel has
the authority to ask for written submissions
from counsel at any time. The
panel has the authority under Section
45 of the Legal Profession Act to impose
a penalty and/or to impose restrictions
or conditions on the lawyer’s practise.
The panel may render an oral decision.
However, a written decision must also
be prepared within sixty (60) days following
a full hearing and thirty (30)
days following a penalty hearing.
A Resolution confirming the acceptance
or rejection of a Settlement Agreement
or the acceptance of an Agreed Statement
of Facts is due within 30 days of
the hearing. Decisions and Resolutions
are filed with the Prothonotary and
posted to the Society’s website.
Staff are not involved in the decisionmaking
process and are not responsible
for preparing the Decision or the
Resolution following the Hearing. The
Professional Responsibility Administrator
is responsible for assisting the Chair
with communicating with committee
members for panel appointments and
arranging the hearing facilities.
Matters referred to hearing
During the 2008/2009 reporting period,
four matters were referred to
formal hearing, of which one was carried
forward from the previous year. In
2009/2010, three new matters were referred
to hearing, with the same matter
as in 2008/2009 being carried forward.
In 2010/2011, the same matter was
carried forward as in previous years,
and four new matters were referred to
hearing. In 2011/2012, due to the timing
of completion of major investigations,
there were no full hearings held;
rather, in relation to one matter referred
to hearing in 2010/2011, heard
on May 9, 2012, a hearing was held to
hear arguments with regard to an issue
of disclosure.
Trends
As noted under the CIC Disposition
section, four new matters were recently
referred to hearing, which will be
scheduled for hearing within the next
few months. The most prevalent areas
of alleged professional misconduct,
conduct unbecoming and professional
incompetence precipitating referral to
formal hearing in this reporting period
include:
• Criminal conduct;
• Incapacity and misappropriation
of funds;
• Incompetence; and
Annual Report 2012 27