Disciplinary law: a professional's psychological state at the time the violation is committed
In a disciplinary decision rendered in October 2014, the Professions Tribunal decided that when a disciplinary violation can be explained by the depressive state of the professional declared guilty, the seriousness of this state must be considered as a mitigating factor by the Disciplinary Council when determining the appropriate sanction to impose (Cliche v. Avocats (Ordre professionnel des), 2014 QCTP 122 (CanLII)).
THE FACTS
In 2003, criminal accusations were pressed against Benoit Cliche, a lawyer by profession. When these charges were dropped in 2010, Benoit Cliche chose to restart his legal practice and to concentrate on rebuilding himself professionally and financially. By the end of 2010, the lawyer found himself in a depressive state.
During this period, the lawyer's legal practice was inspected and certain information was requested by the professional inspection committee. This information was later requested by the syndic. Despite their requests, neither the professional inspection committee nor the syndic received the information in question from the lawyer. In consequence, a disciplinary complaint accusing the lawyer of having refused to collaborate with his professional order was filed.
During his hearing, the lawyer, in hopes of demonstrating the impact his depressive state had on his practice during 2010, submitted a psychoanalytical report to the Disciplinary Council for consideration Believing the disciplinary infraction in question to be objectively serious, the Council nevertheless struck the lawyer off the roll for a period of two months.
THE PROFESSIONS TRIBUAL’S DECISION
After having considered the arguments invoked by both parties, the Professions Tribunals condemns the lawyer to a $5 000 fine and draws the following conclusions :
1. The perception a professional, who faces criminal charges, may have of his professional order constitutes a mitigating factor that a disciplinary council must consider when determining the appropriate sanction.
2. A psychological or psychoanalytical expertise conducted prior to the filing of the disciplinary complaint will have a greater impact before the Disciplinary Council than one conducted following the complaint.
3. The depressive state of a professional at the time a disciplinary obligation is violated cannot justify nor trivialize the violation, but may be useful when determining the appropriate sanction to impose.
4. A fine is not only an appropriate sanction when the disciplinary violation has an economic dimension.
THE LESSONS TO BE LEARNED
1. Disciplinary councils and their members must consider the expert report submitted by the professional in order to describe his psychological state at the time the disciplinary infraction was committed.
2. An offender’s personal problems can never justify the infraction committed, but may relevant in explaining it Dubé Légal inc., Montréal disciplinary law lawyers.
