What is the current standard of conduct for a lawyer who has been found guilty of misconduct by a panel of the Law Society of Upper Canada for failing to comply with the rules of professional conduct?

A large body of case law was cited by both counsel. Cases of this sort, which have been variously described as “abdication” or “dupe” cases, have attracted a range of penalties, from revocation of the licence to practise law, to a one-month suspension. In Law Society of Upper Canada v. Cunningham,[1] the appeal panel held that hearing panels should avoid over-reliance on labels used to describe misconduct, and should not conclude that a label will pre-determine the appropriate penalty.

Rather, the appropriate penalty must be derived from “carefully examining all of the circumstances, including the precise misconduct involved.”[2] The appeal panel listed a series of considerations, set out in the precedential case Law Society of Upper Canada v. Fazio,[3] which should inform penalty in “unwitting” mortgage fraud cases. These considerations include: • The extent to which the licensee neglected or abdicated his or her professional responsibilities • The duration of such neglect or abdication • Whether the neglect or abdication was accompanied by other ethical breaches • Its importance in facilitating the client’s criminality • The size or quantum of the facilitated criminality • Whether the licensee personally benefitted • The extent of remorse • Whether misconduct was admitted and the need for proof obviated • Whether the misconduct was out of character, or isolated, or explained in whole or in part by medical factors • The existence or lack of a prior disciplinary record.