Disciplinary law: the duty to act loyally towards the client who violates the law
In a disciplinary decision rendered in February 2014, the Professions Tribunal decided that when dealing with a client who acts in violation of the law, the professional in question cannot, exceptions apart, report the client to the appropriate authorities. When faced with this type of dilemma, the professional must rather contact the syndic’s offices in order to seek advice and cease representing the client (Ben Bahri v. Avocats (Ordre professionnel des), 2015 QCTP 20 (CanLII)).
THE FACTS
Imane Ben Bahri, a lawyer practicing immigration law, was retained by a client to prepare all documentation needed to eventually submit an application for permanent residency to Citizenship and Immigration Canada. In order to do so, the lawyeri obtained several academic diplomas from the client, all of which were submitted to Immigration Québec as part of the immigration process. Amongst the client’s many diplomas was one received from Tunisia’s Belford University.
After having submitted all the pertinent documentation to the Directorate of Immigration, the lawyer learns that the diploma in question was falsified, Belford University being a fictitious university.
The lawyer contacts her client, hoping to convince him to turn himself in to the appropriate authorities, but he does not seem to take the problem too seriously. Feeling caught between her obligations to the general public and her obligations to her client, the lawyer decides to turn her client in herself, a decision that results in detrimental consequences to her client.
The client claims that his lawyer turned him in because he refused to pay her professional fees and that she even threatened to cause problems with his immigration application. The lawyer categorically denies these allegations.
By way of a disciplinary complaint filed by the Québec Bar’s syndic, the lawyer is accused of having violated her duty to act with integrity towards her client, is declared guilty of said infraction by the Disciplinary Council and is temporarily struck off the role.
Unsatisfied with the decision rendered by the Disciplinary Council, the lawyer appeals it before the Professions Tribunal.
THE PROFESSIONS TRIBUAL’S DECISION
After having considered the arguments invoked by both parties, the Professions Tribunals dismisses the appeal and draws the following conclusions :
1. If a client is not convinced that his lawyer is loyal, neither that client nor the general public will believe that the judicial system constitutes a reliable method to solve conflicts and disputes.
2. This being said, the duty of loyalty not only protects the client, but also pursues a social objective.
3. The exceptions that may apply to professional secrecy also apply to the duties of loyalty and confidentiality.
4. A lawyer cannot put aside his duties of loyalty and confidentiality towards his client unless it is absolutely necessary to prevent an act of violence, that is, an imminent danger of serious injury or death, from occurring to an identifiable person or group of persons.
5. Professional secrecy as well as the duties of loyalty and confidentiality exist in order to benefit the client.
6. The majority of disciplinary violations do not require proof of a guilty conscience.
THE LESSONS TO BE LEARNED
1. A lawyer cannot choose between his obligations and duties towards his client and his obligations and duties towards the general public; as the duties provided in the Code of ethics of advocates do not contradict nor oppose one another.
2. The duties of loyalty and confidentiality are not absolute obligations.
3. The majority of disciplinary violations do not require the proof of a guilty conscience, unless the wording of the legal disposition creating the violation indicates or implies that such proof must be made Dubé Légal inc., Montréal disciplinary law lawyers.
