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Professional Regulation and Ungovernability

Riccioni v. Law Society of Alberta, 2015 ABCA 62 (CanLII) (Alta CA), upholding a decision by the Law Society to disbar one of its members in part for ungovernability 

Earlier this year, the Alberta Court of Appeal upheld a decision by the Law Society of Alberta to disbar one of its members.

Mr. Riccioni argued that undiagnosed ADHD had been the cause of his misconduct, but did not provide evidence that medications and treatment would improve the situation enough to make it safe for the public for Mr. Riccioni to practice law. The Court of Appeal also rejected Mr. Riccioni’s argument that he could only be disciplined for offences he intended to commit. 

According to the Court of Appeal, ungovernability refers more “to a lawyer’s conduct vis­-à-­vis the Law Society, than to his conduct with clients or fellow lawyers.” Mr. Riccioni had demonstrated a lack of integrity and honesty not only with his clients but also with the Law Society investigators. It was reasonable for the hearing committee to attach significant weight to its finding that Mr. Riccioni was ungovernable. 

As the hearing committee discussed in its decision, protecting public safety and public confidence in the profession are the primary purposes of disciplinary proceedings. Sanctions imposed in professional disciplinary proceedings are not primarily punitive, and factors that would mitigate punishment in a criminal case are given less weight in the professional disciplinary context. A professional’s state of mind when he or she engages in misconduct, or the existence of an underlying medical condition that may have contributed to the misconduct, are relevant considerations, but secondary to the reputation of the profession and the protection of the public.

Comment: This is an important decision from the Alberta Court of Appeal because the issue of ungovernability goes to the heart of what it means to be a self­-governing profession. As one of the cases cited by the hearing committee put it: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.”[1]

[1] Bolton v Law Society, [1994] 1 WLR 512 at 519 (Eng CA)Íž applied in Law Society of Upper Canada v Jacobs, [1995] LSDD No 151 at p 18, cited in the hearing committee decision, Law Society of Manitoba v Riccioni, 2013 ABLS 1 (CanLII) at p 17