In what was the first argument for restorative justice for a non-aboriginal person, a Law Society of Upper Canada hearing panel has considered — but ultimately rejected — a case for rehabilitating a lawyer found guilty of misconduct related to real estate fraud.
Instead of stripping his client of her licence to practise law, the lawyer for Renata Snidr asked the panel to consider scrapping its zero-tolerance policy and replacing it with “an approach that seeks to salvage first-time or isolated offenders,” according to a recent decision.
A panel found Snidr, a Toronto lawyer, to have knowingly participated in nearly a dozen fraudulent real estate transactions. Unless there are “exceptional circumstances,” the routine remedy for such a finding is revocation of the lawyer’s licence.
“To me, that read awfully close to a mandatory minimum, which nobody likes these days,” says Snidr’s counsel, Bill Trudell. It made “no sense,” he says, that a person who co-operated fully with a law society investigation and is a remorseful first-time offender who made a bad decision due to circumstances couldn’t benefit from those factors at the penalty phase.
Trudell cited research that showed circumstances have a bigger role in moral lapses than a person’s inherent character.
“Counsel for Ms. Snidr argued that applying revocation to virtually all cases of mortgage fraud is to rest the law society penalty provisions on flawed and ‘archaic’ notions of character and its role in future conduct,” wrote panel chairwoman Janet Leiper.
“It ignores the situational aspects inherent in cases that involve exposure to temptation, client pressure or customary attitudes in the practice setting.
“Mr. Trudell urges the panel to consider whether principles of restorative justice can be applied even in a case where revocation is presumptively required by the case law.”
During testimony in October 2013, Snidr expressed remorse for failing her clients and herself and said she appreciated the impact of her actions. She also described her insight into what led her to carry out the faulty transactions, “including overconfidence in her abilities,” according to the decision. In addition, colleagues and friends filed good character letters that described Snidr as dependable and her offence as “out of character.”
“We accepted her expression of remorse,” the panel said. Although Trudell argued his client’s remorse and character evidence made her an ideal candidate for restorative justice, the panel disagreed and chose to disbar Snidr.
“In Ms. Snidr’s case, there are a number of features that are at odds with applying restorative justice principles to expand the range of penalty. There was no psychiatric evidence provided at the hearing that could assist with the context of how the misconduct happened, why the licensee responded as she did when she stopped participating in the transactions or the pressures unique to her practice that contributed to her decision to participate,” wrote Leiper.
At the penalty hearing, Trudell questioned the merit of analyzing mitigating factors if it didn’t have any bearing on the disposition. In response, the panel said considering mitigating factors was important for lawyers as well as their friends and family. It also noted mitigating factors could help a lawyer who later reapplied for a licence to practise law.
Although the final decision wasn’t what he would have liked to see, Trudell says he’s grateful for the thorough consideration the panel gave to his novel argument and the likelihood that future cases may benefit from it.
“Even though you lose, if you feel like you’ve got a good hearing, that’s a good judge,” he says.
“This is an excellent decision by this panel; it’s thoughtful. I don’t agree with it; I’ll try again in another case, but it’s a very thoughtful decision. They took time to do it and I’m grateful for that.”
Trudell credits his former articling student, Ian McCuaig, for putting together the argument for restorative justice in professional misconduct cases. McCuaig says there’s a greater body of literature looking at the approach in the United States and Australia.
Small-firm lawyers and sole practitioners are overrepresented in the discipline process, something he says points more to the lack of support than character issues among those who work on their own.
“The discipline process is really troublesome for small practitioners because it doesn’t really recognize the kind of pressures that they face and the kind of factors that motivate the kind of decisions they make that are not the best decisions,” says McCuaig.
“The traditional model of discipline just looks at the whole thing as a question of character: Do you have it or do you not have it? But social science has identified for a long time that that’s not the way human beings work.”
Situational factors play a much bigger role than the discipline process recognizes, McCuaig adds. “And situational
factors are much stronger for small practitioners because they don’t have the support.”
In a sense, the discipline process can insulate lawyers who work at bigger firms or corporations because their employers can deal with their faults internally and often before they escalate into something disastrous, according to McCuaig. As someone who aspires to practise on his own in the future, McCuaig says he takes an interest in how the discipline process treats those who hang their own shingles.
In its decision, the panel cited an Australian National University College of Law research paper by Kath Hall. In it, Hall noted “a disproportionate number of complaints among sole practitioners and questions about the need for the ‘full force’ of the disciplinary system,” Leiper said in summarizing the findings. “Hall also suggests regulators have a limited appreciation of the links between dishonesty, stress, and psychological conditions, which is informing their responses to lawyer misconduct.”
But Leiper also cited research that suggested serious fraud matters would be exempt from a restorative justice approach. “The consequences to the reputation of the profession would not align with such a regulatory response. This is analogous to the Supreme Court’s assessment of the range of restorative applications in the criminal law context where more serious offences often require a stronger form of condemnation.”