Sunday, June 18, 2017

Defending an Allegation of Professional Misconduct ?

   Next to the defence of one's liberty, the defence of one's professional status and reputation is easily the most serious legal proceeding that one could be involved in.  Aside from the obvious potential loss of one's livelihood, professional misconduct proceedings have the added ability to significantly destroy one's years of developing and establishing one's professional reputation and financial security as well as potentially permanently impacting one's physical and mental health.

   Here are a couple important tips you may wish to consider should you be placed in a position where you require counsel to defend against a complaint of professional misconduct from your profession's governing body in Ontario.


1.  Research your lawyer carefully:

   Individual's facing professional misconduct frequently retain their lawyers through word of mouth from others in their profession without any independent research on the lawyer.  In doing so, they may unwittingly deprive themselves of the benefit of counsel on the unique factual circumstances of their situation.

Jurisdictional Irregularities:

   For example, the case may involve irregularities in the complaint or adjudicative process which may deprive the adjudicative body of jurisdiction to adjudicate the complaint.  The failure to raise such an irregularity before the adjudicative body at the outset will typically deprive the professional of the right to raise this fundamental issue on appeal or judicial review. The investigative or adjudicative body may be improperly constituted.  There may be an issue surrounding the sufficiency of the  "complaint" filed with the regulatory body.

Bias and Conflict of Interest:

   Another fundamental issue in the defence of a professional misconduct complaint is bias and conflict of interest involving either the adjudicators or the lawyers with carriage of prosecuting the complaint before the adjudicative body.  In our system of law bias denudes an administrative tribunal or court of jurisdiction.  This means that any decision made by a biased tribunal or court is a nullity. Our law is clear that bias must be raised promptly otherwise the ability to raise it on appeal or judicial review may be lost.

2.   Get a Second and Even
      A Third Opinion:

   If your situation involves either of the two issues noted above, you will want to seek out lawyers who have experience with these types of legal issues.  There is nothing wrong with getting a second opinion.  In fact, getting a second and even a third opinion is not only sensible but it may save you your profession and not to mention a lot of money in the long rune.  If one has a toothache one does not consult a gynecologist.


3.   Be mindful of costs.

   The defence of professional misconduct proceedings in Ontario is very expensive and can easily bankrupt most professionals.  This is because the professional must not only pay for his or her counsel but they must also pay for the governing body's costs associated with prosecuting them should they be found liable.  Just a few weeks ago the College of Physicians and Surgeons of Ontario revoked the liscense of a doctor and ordered him to pay some $300,000 in costs. It is safe to say that the costs of his own lawyer would be slightly lower than that of the governing body.

   It is not uncommon for clients to be forced to defend allegations without counsel once their financial resources run out.  Legal Aid Ontario does not fund these proceedings.  It is vitally important to get a good sense of the ultimate costs associated with the proceedings as early as possible and to negotiate a retainer agreement which will assist in seeing you through the proceedings.

1 comment:

  1. Congratulation for ur blog. Im a criminal lawyer from Quebec City and I read us all days.

    ReplyDelete