In Law Society of Ontario v. McCullough, 2022 ONLSTH 63 (Law Society Tribunal Hearing Division), a panel of the Law Society’s Tribunal (the “Panel”) took into consideration, for the first time, a lawyer’s Indigenous background in determining the penalty to be imposed for professional misconduct involving misappropriation of trust funds.
Background
The Law Society of Ontario (the “LSO”) alleged that Helen McCullough (the “Lawyer”) had engaged in professional misconduct by misappropriating over $100,000.00 from her firm’s mixed trust account to pay the operating expenses of her firm and also alleged that she failed to maintain proper books and records. The Lawyer admitted to her misconduct and the panel was required to determine the penalty to be imposed.
LSO Tribunal decision
The LSO’s Appeal Panel had previously determined that the presumptive penalty for misappropriation by a lawyer is revocation and that a panel can only depart from this in cases of proven dishonesty where there are extraordinary or exceptional circumstances which would warrant a departure from that disposition.
While LSO Tribunal panels had, in exceptional circumstances, departed from the presumptive penalty of revocation and instead ordered permission to surrender a licence, there had been no reported cases where exceptional circumstances led to a penalty less severe than this.
In this case however, the Panel considered the lawyer’s life experience as an Indigenous woman in the context of the Supreme Court of Canada’s decision in R. v. Gladue, 1999 CanLII 679, in which the Supreme Court of Canada in the criminal law context set out what must be considered with respect to sentencing in criminal matters for Indigenous offenders. The Panel concluded that the principles from Gladue should also be considered by the LSO Tribunal in cases involving Indigenous lawyers and must be reviewed in the context of institutional commitments to reconciliation.
The Lawyer was 65 years old having been called to the Bar of Ontario in 1998 at the age of 41. She was practising in a small community, primarily in the area of family law, including child protection, for a majority of clients who receive legal aid, as well as a significant percentage of clients who are Indigenous. In considering the Gladue principles, the Panel noted that the Lawyer’s circumstances included:
- the impacts of cultural displacement from her Indigenous identity and community;
- her efforts to overcome her experiences of hardship, disadvantage and violence as a young woman which ultimately led her to become a lawyer at the age of 41;
- her commencing her legal career at the same time as she adopted her four nieces and nephews all of whom had complex special needs, thereby diverting them from the child protection system;
- the significant stress she was under at the time of her misconduct as a result of financial support she was providing to other family members; and
- her ongoing services as a licensee to an important community of clients, many of whom are Indigenous parents needing representation in child protection proceedings.
The LSO did not seek the presumptive penalty of revocation given these extraordinary circumstances and agreed that the penalty should not include revocation. While the parties were able to jointly agree on a portion of the penalty consisting of a suspension coupled with practice restrictions, they could not agree upon the length of that suspension. The LSO sought a twelve-month suspension in light of the serious nature of the misconduct and the need to promote general deterrence, while the Lawyer sought a four-month suspension.
Ultimately, the panel ordered an eight-month suspension of the Lawyer, imposed practice restrictions on her for a one-year period following her return to practice, and required her to meet with an Elder or Traditional Teacher during her suspension. It also awarded costs of $5,000.00 to the LSO.
Takeaways
This is the first time that a panel of the LSO’s Tribunal has considered the Gladue principles when deciding the issue of penalty for professional misconduct involving a lawyer with an Indigenous background. Going forward, it is likely that the LSO Tribunal will continue to be open to taking into account the Gladue principles in such circumstances. Discipline tribunals for other professional regulators should anticipate that similar requests will be made of them when dealing with the issue of penalty involving an Indigenous member of their profession.
Christopher Wirth is a partner with Keel Cottrelle LLP.