Legal Practitioner

2020 SCMR 1972 SUPREME-COURT-OF-NEW-ZEALAND Judicial Precedent

Law societyAdmission as an advocate"Certificate of character" as a pre-requisite for admission as an advocatePrevious convictions of applicant"Fit and proper person" standard (in section 55 of Lawyers and Conveyancers Act, 2006)Scope and purpose

Purpose of the "fit and proper standard" was to ensure that those admitted (to practice) could be entrusted to meet the duties and fundamental obligations imposed on lawyers

Such obligations included upholding the rule of law

Reflecting such purpose, the assessment of fitness and propriety focused on the need to protect the public and to maintain public confidence in the legal profession

Such exercise had a protective, not punitive, purpose, and it also involved consideration of whether the applicant was honest, trustworthy and a person of integrity

Where the applicant had prior convictions, the Court must consider whether the convictions remained relevant; this was a fact-specific inquiry and the Court must look at all the evidence to make a judgment as to the applicant's present ability to meet the duties and obligations of a lawyer

Applicant had the onus to show the standard was met

Although the standard was a high one, the Court should not lightly deprive qualified persons from the opportunity to practise law.

2020 SCMR 1972 SUPREME-COURT-OF-NEW-ZEALAND Judicial Precedent

Law societyAdmission as advocate

"Fit and proper person" standard or "good character" requirements for entry to the legal profession as applicable in England and Wales, Australia and Canada.

2018 SCMR 1478 SUPREME-COURT-OF-CANADA Judicial Precedent

Professional misconductScopeIn-court incivility/uncivil behaviour during trial

Allegations of impropriety made against the opposing counsel on the basis of a sincerely held but erroneous legal beliefs

Disciplinary proceedings against lawyer by the Law Society

Defendant-lawyer, was hired by a client to defend him in a trial

Trial was characterized by a pattern of escalating acrimony and by a series of disputes between the defendant-lawyer and prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by the defendant-lawyer

Much of the disagreement stemmed from defendant-lawyer's honest but mistaken understanding of the law of evidence and the role of the prosecutor

During the trial the judge directed defendant-lawyer to stop repeating his misconduct allegations, which direction was followed

After conclusion of trial, the Law Society brought disciplinary proceedings against defendant-lawyer on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial

Defendant was found guilty of professional misconduct, his licence to practice law was suspended for two months and he was ordered to pay nearly $247,000 in costs

On appeal, the Law Society Appeal Panel also concluded that defendant was guilty of professional misconduct, but it reduced his suspension to one month and decreased the costs award against him to $200,000

In its decision, the Appeal Panel developed a multi-factorial, context-specific approach for assessing whether in-court incivility amounted to professional misconduct

[Per Moldaver J; Majority view: Although the approach adopted by the Appeal Panel was appropriate, the finding of professional misconduct against the defendant on the basis of incivility was unreasonable

First, even though the Appeal Panel accepted that the defendant's allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous legal beliefs as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis

Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief could not ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the prosecutors, the defendant was not deliberately misrepresenting the law and was not ill-motivated

Despite this, the Appeal Panel used defendant's legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety

Such a finding was not reasonably open to the Appeal Panel

Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief would be reasonably based as long as they had a sufficient factual foundation

Question for incivility purposes was not whether the defendant was right or wrong on the law; rather, the question was whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation

In the present case, defendant's allegations did have a factual foundation

Defendant's legal errors, coupled with the prosecutors' conduct, provided the reasonable basis for his allegations

Accordingly, based on the Appeal Panel's own approach, defendant's allegations were made in good faith and they were reasonably based

Second, the other contextual factors in the present case could not reasonably support a finding of professional misconduct against the defendant on the basis of incivility

Evolving abuse of process law at the time accounted, at least in part, for the frequency of defendant's allegations; the presiding judge took a passive approach in the face of defendant's allegations; and defendant's behaviour changed in response to the directions of the trial judge

Appeal Panel failed to account for such contextual factors in its analysis

Only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that the defendant was not guilty of professional misconduct

Since the defendant, in the circumstances of the present case, could not reasonably be found guilty of professional misconduct, the complaints against him were dismissed and there was no need to remit the matter to the Law Society

Appeal was allowed accordingly]

[Per Karakatsanis, Gascon and Rowe, JJ; Minority view: Appeal Panel's decision was reasonable and there was no basis to interfere with its findings

Reviewing court could not supplement the decision maker's (Appeal Panel's) reasoning for the purpose of undermining it

Neither may a court reweigh evidence or contextual factors considered by the decision maker (Appeal Panel)

At all times, the starting point of reasonableness review was the reasons for the decision under review

2018 SCMR 1478 SUPREME-COURT-OF-CANADA Judicial Precedent

Professional misconductIn-court incivilityDisciplinary proceedingsFinding of professional misconduct by the Law Society (Bar Council)AppealStandard of review'Reasonableness standard' and 'correctness standard'

Question as to which standard was applicable to Law Society's decision finding lawyer guilty of professional misconduct for in-court incivility

[Per Moldaver J; Majority view] Reasonableness standard applied to Law Society's misconduct findings and sanctions

Decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function were entitled to deference from courts, and were thus presumptively reviewed for reasonableness ? Law Society's approach to determining when incivility amounted to professional misconduct and its application of that approach in assessing a lawyer's conduct involved an interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it

Determining when in-court behaviour amounted to professional misconduct did not fall under the category of questions of central importance to the legal system as a whole and outside the decision-maker's expertise, for which correctness standard would be appropriate

Although the permissible scope of lawyers' behaviour was arguably of central importance to the legal system as a whole, it could not be said that assessing whether incivility amounted to professional misconduct was outside the Law Society's expertise

To the contrary, Law Society disciplinary tribunals had significant expertise regulating the legal profession, and Law Society disciplinary panels were composed, in part, of other lawyers, who were aware of the problems and frustrations that confronted a practitioner

Furthermore, a deferential standard of review did not threaten a trial judge's power to control his or her courtroom

Trial judge was free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a Law Society's disciplinary decision by a different court

Fact that the behaviour occurred in a courtroom was an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it did not impact on the standard of review

[Per Karakatsanis, Gascon and Rowe, JJ; Majority view] Reasonableness was the applicable standard of review

Fact that a lawyer's behavior occurred in the courtroom did not deprive the Law Society of its legitimate role in regulating the profession nor did it justify heightened judicial scrutiny

[Per Côté, J; Minority view] Where the impugned conduct occurred in a courtroom the Law Society's finding of professional misconduct was reviewable on the correctness standard

Fact that the relevant conduct occurred in a court of law implicated constitutional imperatives about the judiciary's independence and its capacity to control its own processes, and rebutted the presumption of reasonableness

Correctness review/standard was required because the Law Society's inquiry into in-court professional misconduct engaged the contours of the constitutional relationship between the courts and government regulators

Judicial independence was, without question, a cornerstone of democracy and essential to both the impartiality of the judiciary and the maintenance of the rule of law

Inquiry by a law society into a lawyer's in-court conduct risked intruding on the judge's function of managing the trial process and his authority to sanction improper behaviour

To protect judicial independence, and the authority of judges to manage the proceedings before them in the manner they saw fit, the judiciary ? not a regulatory body, a creature of the political branches of government ? should have the final say over the appropriateness of a lawyer's conduct in that sphere

Reasonableness standard of review, which required judicial deference to a Law Society's disciplinary determinations, was inconsistent with such prerogative

Correctness review was required to ensure proper respect for the judiciary's constitutionally guaranteed place in democracy.

2018 SCMR 1478 SUPREME-COURT-OF-CANADA Judicial Precedent

Professional misconductIn-court incivility/uncivil behaviour during trial ? Law Society (Bar Council)

Multi-factorial, context-specific approach for assessing whether in-court incivility amounted to professional misconduct

Scope

Multi-factorial, context-specific approach for assessing whether a lawyer's in-court behaviour crossed the line into professional misconduct on the basis of incivility was appropriate

First, the importance of civility to the legal profession and the corresponding need to target behaviour that detrimentally affected the administration of justice and the fairness of a particular proceeding had to be recognized

At the same time, the Law Society had to remain sensitive to the lawyer's duty of resolute advocacy; a duty of particular importance in the criminal context because of the client's constitutional right to make full answer and defence

Law Society had to recognize the need to develop an approach that would avoid a chilling effect on the kind of fearless advocacy that was at times necessary to advance a client's cause, and that was both flexible and precise

Rigid definition of when incivility amounted to professional misconduct in the courtroom was neither attainable nor desirable; rather, determining whether a lawyer's behaviour warranted a finding of professional misconduct must remain a context-specific inquiry that was flexible enough to assess behaviour arising from the diverse array of situations in which lawyers found themselves

Standards of civility must be articulated with a reasonable degree of precision

Multi-factorial, context-specific approach struck a reasonable balance between flexibility and precision: it set a reasonably precise benchmark that instructed lawyers as to the permissible bounds of ethical courtroom behaviour, by articulating a series of contextual factors ? what the lawyer said, the manner and frequency in which it was said, and the presiding judge's reaction to the lawyer's behaviour ? that ought generally to be considered when evaluating a lawyer's conduct, and by describing how those factors operated when assessing a lawyer's behaviour

With respect to what the lawyer said, while not a standalone "test", prosecutorial misconduct allegations, or other challenges to opposing counsel's integrity, crossed the line into professional misconduct unless they were made in good faith and had a reasonable basis

Requiring a reasonable basis for allegations protected against unsupportable attacks that tarnished opposing counsel's reputation without chilling resolute advocacy

Reasonable basis requirement, however, was not an exacting standard; it was not professional misconduct on account of incivility to challenge opposing counsel's integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted

Nor was it professional misconduct to advance a novel legal argument that was ultimately rejected by the court

Good faith inquiry asked what the lawyer actually believed when making the allegations

In contrast, the "reasonable basis" inquiry required a Law Society to look beyond what the lawyer believed, and examine the foundation underpinning the allegations

Looking at the reasonableness of a lawyer's legal position at such stage would, in effect, impose a mandatory minimum standard of legal competence in the incivility context ? this would allow a Law Society to find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in the Law Society's opinion, ought to have known or ought to have done

Such approach would risk unjustifiably tarnishing a lawyer's reputation and chilling resolute advocacy

With respect to the frequency of what was said and the manner in which it was said, as a general rule, repetitive personal attacks and those made using demeaning, sarcastic, or otherwise inappropriate language were more likely to warrant disciplinary action

As for the presiding judge's reaction to the lawyer's behaviour, when the impugned behaviour occurred in a courtroom, what, if anything, the judge did about it and how the lawyer modified his or her behaviour thereafter became relevant

Finally, the multi-factorial, context-specific approach also allowed the Law Society disciplinary tribunals to proportionately balance the lawyer's expressive freedom with its statutory mandate in any given case

Flexibility built into the context-specific approach to assessing a lawyer's behaviour allowed for a proportionate balancing in any given case

Considering the unique circumstances in each case enabled Law Society disciplinary tribunals to accurately gauge the value of the impugned speech, which, in turn, allowed for a decision, both with respect to a finding of professional misconduct and any penalty imposed, that reflected a proportionate balancing of the lawyer's expressive rights and the Law Society's statutory mandate.

2017 SCMR 1070 SUPREME-COURT-OF-CANADA Judicial Precedent

Law Society (Bar Council)Legislative mandateScope

Law society could only enact rules that were consistent with the purposes, scope and objectives of its enabling statute, and its authority to do so must be exercised in a reasonable manner

Fact that deference was owed did not mean that a law society had carte blanche; there were several grounds for finding delegated legislation to be unreasonable, such as where it was manifestly unjust.

2017 SCMR 1070 SUPREME-COURT-OF-CANADA Judicial Precedent

Law Society (Bar Council)Legislative mandateScope

Rules made by Law Society requiring all practising lawyers to complete Continuing Professional Development ("CPD") every year

Non-compliance with such rules attracting suspension without right to hearing or right of appeal

Question as to whether such rules were valid in light of the Law Society's mandate

Appellant was a practising lawyer and member of The Law Society of Manitoba ("Law Society")

Despite the Law Society's mandatory rules requiring all practising lawyers to complete 12 hours of continuing professional development ("CPD") a year, appellant did not report any CPD activities for the years 2012 or 2013

Over a year after appellant's failure to report the completion of any CPD hours, the Law Society notified him that if he did not comply with the rules within 60 days, he would be suspended from practising law

Appellant was also invited to correct any errors in his CPD record and was informed that it was possible for the 60-day delay to be extended

Appellant did not reply, nor did he apply for judicial review of the decision to suspend him, rather he filed an application challenging the validity of certain provisions of the Rules of The Law Society of Manitoba ("Rules") with respect to CPD

Judge at first instance dismissed appellant's application, concluding that the impugned rules fell squarely within the Law Society's legislative mandate

Court of Appeal dismissed the appeal for similar reasons

[Per Wagner, J: (Majority view): To determine whether the impugned rules were reasonable, the scope of the Law Society's statutory mandate must first be construed

Purpose, words and scheme of The Legal Profession Act (of Canada) ("the Act"), supported an expansive construction of the Law Society's rule-making authority

Law Society was given a broad public interest mandate and broad regulatory powers to accomplish its mandate ? a mandate which must be interpreted using a broad and purposive approach

Wording and scheme of the Act were also indicative of the breadth of the Law Society's authority and rule-making power, in particular, it was empowered to establish consequences for contravening the Act or the Rules, such as a suspension, for failing to meet the educational standards it was statutorily required to put in place

Since the Law Society had the power to create a CPD scheme, it necessarily had the power to enforce the scheme's standards

2017 SCMR 1070 SUPREME-COURT-OF-CANADA Judicial Precedent

Law Society (Bar Council)Rules made by Law SocietyStandard for judicial review of such RulesScopeStandard applicable to the review of a law society rule was 'reasonableness'Rule would be set aside only if it was one no reasonable body informed by the relevant factors could have enactedSubstance of the rule must conform to the rationale of the statutory regime set up by the legislature

Reasonableness was the appropriate standard for several reasons; first, in making rules of general application to the profession, the benchers of a law society acted in a legislative capacity; that the standard of review must reflect a law society's broad discretion to regulate the legal profession on the basis of policy considerations related to the public interest; second, many benchers of a law society were also elected by and accountable to members of the legal profession, and applying the reasonableness standard ensured that the courts would respect the benchers' responsibility to serve those members; third, a law society acted pursuant to its home statute in making rules, and as a result, there was a presumption that the appropriate standard was reasonableness; and finally, a law society was a self-governing professional body with expertise in regulating the legal profession at an institutional level.

2017 PLD 10 PESHAWAR-HIGH-COURT Judicial Precedent

Legal profession, functions, ethics and proprietyProfessional duty of a legal practitioner was that he was supposed to appear in the court when a case was calledFailure would indicate lack of respect of counsel toward his professional duties

Advocates were officers of the courts and they were expected to maintain the dignity of legal profession.

2016 CLC 831 PESHAWAR-HIGH-COURT Judicial Precedent

MisconductConsolidation of suit on same subject matter by same partiesRequirementProfessional misconduct on part of lawyer

Two suits filed against same subject matter by same parties were not consolidated and had been tried separately by different courts

Validity

Counsel were under duty to inform Trial Court about said fact or to file application for consolidation of the suits

Counsel had neither informed the trial courts nor had filed any such application, which amounted to professional misconduct.

2016 PTD 2924 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Whether someone was a Departmental Representative, lawyer or a judge, he was an eternal student of law

Every day was a new experience, every new thought, new fact or situation, new argument revealed, a new angle needing attention of studious representatives, holding degree of law was not just enough

Degree in law would merely serve purpose of enrolment as a lawyer but real journey of profession begin from active practice in court.

2015 PLD 115 PESHAWAR-HIGH-COURT Judicial Precedent

Legal profession, functions, ethics and proprietyHigh Court observed that central function of the legal profession was to promote the administration of justice

If the practice of law was a public utility of great implication, and a monopoly was statutorily granted by the nation, it obliged the lawyer to observe scrupulously and with great conscientiousness those norms which made him worthy of the confidence of the community in him as a vehicle of justice social justice

Lawyers were officers of the court and they were responsible to the judiciary for the propriety of their professional activities

Legal profession had been granted powers of self-government

Self-regulation, would help to maintain the legal profession's independence from undue government domination

Lawyers could not behave with doubtful scruples, or strive to thrive on litigation

Canons of conduct could not be crystalised into rigid rules, but felt by the collective conscience of the practitioners as right

Courage, intellectual honesty and moral independence, ought to be chief ornaments of the advocate's personality

Law was no trade, briefs no merchandize

Leave of commercial competition procurement, should not vulgarize the legal profession

Lawyers, were not sold by executing power of attorney; they act under the authority to present the client's cause to the best of abilities, but one who intended to sell lawyer's office by executing power of attorney in negative way, it was professional misconduct, entailing punishment provided by Legal Practitioner and Bar Council Act, Pakistan Penal Code etc.

2015 PLD 1 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Conduct and standardsService to the societyRespect for courts

Legal profession was know as a noble profession having high traditions and had been catering to the needs of the society for a very long time

Members of legal fraternity were expected to uphold those traditions and serve the society sincerely and honestly with utmost respect for the courts

If such were the expectations from a noble profession, its members must conduct themselves in a way which may be worthy of emulation

By doing any act which was contrary to the accepted norms and standards of the legal profession, a member of the legal fraternity not only discredited himself but also brought disrepute to the profession to which he belonged

By such acts the credibility and reputation of the profession as a whole came under cloud

If any member of the profession fell from such standards, he deserved punishment which commensurate with the gravity of the misconduct.

2001 PLD 60 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Legal Practitioner

Duties of a lawyer with reference to American system.

1996 MLD 1216 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal PractitionerAdvocateDuty of

Advocates, are to be respected, but they also have to restrict themselves within the frontiers of domain of law and justice and Courts should politely, if not bluntly, decline to surrender to their wishes and refuse to advance their selfish interests at the cost of those who are likely to be exposed to imminent and irretrievable injury.

1993 SCMR 2204 SUPREME-COURT Judicial Precedent

Legal PractitionerProfessional misconductAdvocate misappropriating amount paid to him by his client for filing suit and as a part of his professional fee

Advocate raising plea that papers for filing suit were misplaced/lost by High Court office but in fact suit papers were returned to the Advocate by the High Court Office for removing objections

Advocate, however, failed to refile the suit for a long time and addressed a letter to the client that in case the said suits had not already been got restored through some other counsel, he was willing to cooperate fully without charging any fee and without insisting on the payment of his outstanding bills first and he could work only in terms of his approved schedule of fee and the payment was made of all his bills forthwith

Advocate, was found to be guilty of misappropriation by the Bar Council

Supreme Court declined interference.

1993 SCMR 2132 SUPREME-COURT Judicial Precedent

Legal PractitionerProfessional misconduct

Advocate withdrawing a sum from Court on behalf of his client in a compromise decree but returning less money to the client

Record fully established misappropriation by Advocate

Supreme Court holding striking off Advocate's name from rolls as proper punishment in the circumstances of the case further passed decree in favour of client for the remaining amount together with interest:

Indian Advocates Act (1961), S.38.

Duties of legal practitioner and ethics to be followed by him dilated upon.

1972 PLD 261 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Legal Practitioner -Prosecuting Deputy Superintendent of Police-Does not come within definition of a counsel or Advocate.

1969 PLD 118 SUPREME-COURT Judicial Precedent

Legal Practitioner - Casting refection on Judicial Officer without anv material whatsoever in support of it-Deprecated.

1969 PLD 495 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal Practitioner Ditty towards Court-Advocates, not agent of person who pays and engages them.

1969 PLD 239 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Legal Practitioner -Withdrawal from case-No confidential information passed to Advocate by first party and no retainer ee charged by Advocate-Advocate subsequently engaged by second party-Advocate to avoid further misunderstandings seeking permission of Court to withdraw from case-Second party not objecting to his withdrawal-Advocate although not debarred from appearing on behalf of second party yet permitted to withdraw from case.

1967 PLD 882 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

(f) Legal practitioner-Officer of Court-Right to practise and right of audience in Court.

1965 PLD 527 SUPREME-COURT Judicial Precedent

Legal Practitioner Legal Practitioner - Licensing system operating legal profession-History traced.

1965 PLD 147 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal Practitioner S. 10-Legal Practitioner-Cannot be removed from practice except on grounds enumerated in section-Legal Practice (Disqualifications) Ordinance (II of 1964), S. 3.

1960 PLD 323 SUPREME-COURT Judicial Precedent

Bribe-agent for Magistrate-Misconduct-Suspended not on evidence led in case but upon material taken from record of Departmental enquiry against Magistrate-Suspension not unjustified.

1959 PLD 747 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Legal Practitioner

Pleader and client-Pleader's duty. It is the duty of an advocate appearing for a party to remain firm when he is of the view that the step that he is taking is necessary in the interest of advancing his client's case.

1956 PLD 1 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal Practitioner Failing to appear for client an Court or making suitable arrangement for other counsel to appear for him Duty towards client and Court?Professional misconduct.

1955 PLD 234 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal Practitioner Legal Practitioner-Duty towards Court in matter of adequate preparation of case-Professional misconduct.

1954 PLD 57 PESHAWAR-HIGH-COURT Judicial Precedent

Legal PractitionerUnprofessional conduct-Enquiry-Calling Judicial Commissioner as witness to prove good record since enrolment-Condemned.

Consulted but not engaged by party-

1954 PLD 674 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal Practitioner Legal Practitioner

Professional misconduct - Tampering with witnesses in criminal case-Grossest form-Dismissal from practice.

1950 PLD 439 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Legal Practitioner Duty of

In accepting engagement in Revision from order of acquittal in murder charges-Misrepresentation as to chances of success of Petition-Whether amounts to breach of Professional ethics-Accepting brief without seeing any paper or informing client of exact legal position

Professional misconduct-Lahore High Court Rules and Orders, Vol. V. Ch. 1, Part A (b), Rule 1-A-Revision lodged without copy of District Magistrate's order refusing to-move Provincial Government for appeal.