09172016 - Your Reputation Precedes You folder (2)/AEC16...professionals are colleges, law...

Your Reputation Precedes You – TheRequirement for Good Character & Reputation

Portland, OregonSeptember 17, 2016

Council on Licensure, Enforcementand Regulation 2016 Annual Educational Conference 1

Your Reputation Precedes YouThe Requirement for Good Character andReputation

Presenters: Carmel Wiseman and Greg Cavouras,from the College of Dental Surgeons of B.C.and Alastair Wade, Alastair Wade Law Corporation

Terminology

• In Canada, the bodies that regulateprofessionals are colleges, law societies,institutes etc. rather than state boards

• Typically, the boards of regulatory bodiesinclude elected members of the professionand government-appointed public members

“[w]ithin the American bar, moral characterrequirements have been a fixed star in anotherwise unsettled regulatory universe…”

-Deborah L. Rhode, Moral Character as a Professional Credential




Legislative Requirements

• Nearly every regulated profession includes someprovision for character assessment of an applicantfor admission

Various Formulations:

“Good character” “Moral character”

“Good character and reputation”

“Character andfitness”

“Fit and proper personto be admitted”


Purposes

1: Protect the public from unethical practitioners

2: Maintain public confidence in and safeguard theprofession’s reputation

Bottom lineCharacter (past conduct) of an applicant is ofsignificance in deciding whether they will be

admitted to the profession


Application

• Based on “absence” of bad character ratherthan “affirmative” proof of good character

• Generally based on self-reporting, althoughsome regulators conduct their owninvestigations




Dilemma for Unscrupulous Applicant

Candor vs.

Ability of regulator to uncover,

and punishment if discovered

Direct Question

Are you of goodcharacter andreputation?

Indirect Questions

Past Behavior

• Charged/convicted of a criminal offence/felony(or Criminal Record Check)

• Subject of disciplinary proceedingsby a regulatory body

• Guilty of negligence, malpractice orincompetence in civil court

• Denied registration by regulator




Indirect Questions cont’d.

• Academic misconduct

• Declared bankruptcy

• Engaged in illegal practice

• Employment terminated forcause

Positive Requirements

• Letters of reference

• Completion ofethics program / courses

“Yes” to Past Conduct Concern

Regulator will consider:

• Seriousness of conduct

• Recency of conduct

• Age at time of conduct

• Evidence of rehabilitation

• Attitude / demeanour

• Current views of character




Criminal Convictions

Applicant ‘9,’ 2016 LSBC 14

Convictions for:

• Marijuana (2006)

• Internet luring of 15-year-olddaughter of employer (2011)

• Ban from law school socialevents (2014)

• Failure of roadside sobriety test(2014)

Not admitted but allowed to apply after 1 year

Murphy v. LSUC 2015 ONLSTH 51• Lengthy criminal history (B&E, uttering

threats, firearm and drug offences)

• In jail, resolved to stop using drugs andalcohol

• After release (2006) further offence

• After 2nd release (2008) ‘exemplaryconduct’

joined church / volunteered went to College (grade 9 dropout) got high school equivalency and completed

paralegal program




Brousseau c. Barreau du Quebec2006 QCTP 51

• 1990 killed mother

• Convicted of manslaughter: 4 years, 10 months

• Applied to Barreau du Quebec 5 times

• Appeal to the Tribunal des Professions

Tribunal changed man had the moral, conduct, competence, knowledge

and qualities required

Not Criminal, but … Financially Strapped

Application of Griffin, 128 Ohio St 3d 300,2011-Ohio-20

• Law student refused admissionbecause of debt-load, part-time employment(with the public defender’s office) and lack offeasible plan to pay debts

BRITISHCOLUMBIA

“Goodcharacter andreputation”

Misconduct in Another Jurisdiction

Applied for registration topractise in Alberta

Dr. Patrick Lum |Dentist

• Registered and practising inB.C.

• Received 22 complaints(2001-2011)

• No formal discipline,no citation/hearing/findings

• Agreed to remedial steps




Does his complaint history show an absence of“good character and reputation”?

Should Dr. Lum be denied registration as a dentistin Alberta, even though he is currently registeredin B.C.?

What Do You Think?

• Registrar: “concerns regarding the number ofcomplaints, the nature of complaints and theresolution, and the ongoing complaints and themonitoring under [a previous consent resolution]”

• Noted: some complaints were received in areas inwhich Dr. Lum had previously taken remedialeducation

Lum v. Alberta Dental Association and College


Result

• Registrar’s decision was upheld by an internalreview panel

• Review panel’s decision was upheld by Alberta Courtof Queen’s Bench (2015 ABQB 12)

• Dr. Lum appealed to the Alberta Court of Appeal

(2016 ABCA 154)




Reasoning

• Evidence of registration in another jurisdiction is nota complete answer to the good characterrequirement

• This may be prima facie evidence of good character…but complete reliance on previous registration would“freeze” good character at the moment of the earlierregistration


Awkward situation where conduct is both:

AND

b. Still serious enough to prevent you from being

a. Not serious enough to get you kickedout of one jurisdiction

admitted to another jurisdiction

Academicdishonesty….on anopen-book ethicsassignment…?

Unethical Behaviour During Application




Bachynski (2013)

• Applicant reviewed a previous CPLED(Canadian Centre for ProfessionalLegal Education) student’s work on acomputer at their mutual place ofemployment

• Applicant was not forthright whenconfronted with similarities

• Subsequently admitted that she“referred to” (read: copied) otherstudent’s assignment

Plagiarism

Law Society of Saskatchewan DecisionPanel emphasized these aggravating factors:

• Student didn’t self-report

• Student was aware of a nearly identical case

Panel ordered that the student:

• Redo the assignment

• Pay costs of $1500

• Write an essay outlining her conduct and potentialconsequences on the public and the profession

• Have her entry into the legal profession delayed byfour months

“It is baffling why students who have successfullycompleted a law degree, in what can only be hoped is asingular instance of profoundly poor judgment, decideto gamble their reputation by cheating on what isacknowledged by most as a relativelystraightforward evaluation”

Law Society of Saskatchewan v.Bachynski, 2013 SKLSS 2




• Is this outcome reasonable/correct?

• Proportionate to conduct?

• In service of objectives of protecting public andmaintaining confidence in the legal profession?

• Is punishment/deterrence the proper role inadmissions programs or assessments?

What Do You Think?

Dishonest Answers onApplication Form

If discovered beforeapplication granted

• Summary rejection; or

• Hearing (legislativescheme)

Summary Dismissal

Law Society of Upper Canada Bylaw

“An applicant who makes any false or misleadingrepresentation or declaration on or in connection withan application for licence, by commission or omission, isdeemed thereafter not to meet, and not to have met,the requirements for the issuance of any licence underthe Act.”




Tarangle v. College of Physicians & Surgeons of Alberta[1976] A.J. No. 307

• Summary removal of physician upheld

• Lied about being the subject of discipline proceedingsby medical licensing authority (California)

• Test: is not whether applicant would have beenadmitted if truthful but whether the person procuredregistration by means of a false representation

• If lie is detected after admission, often dealt with incomplaints/discipline stream

• Typically onus is on regulator

• Often dealt with alongside othercomplaints/investigations

Dr. Mohsen Yavari and College of Physicians &Surgeons of Nova Scotia (2016)

• Licensed in Nova Scotia 2013

• Did not disclose he was an Emergency MedicineSpecialist from 2006-2012 in Dubai

• Hired through program for rural areas looking forfamily practice experience




Dishonesty – Strategic and Willful -Interim Suspension

Declaration: “I understand…if…I have made a false ormisleading representation…on that basis, my licensemay be revoked’

• License obtained by false pretenses

• Informal resolution with Dr. Yavari agreeing torevocation of licence but could apply for a newlicence after 4 months

Consideration of Social Media

Ormilla Bhoopaul (2011)

• Seeking admission as a paralegal in Ontario

• Law Society of Upper Canada deniedadmission on a number of grounds, includingstatements in a blog she authored

• Blog contained statements that werediscriminatory or threatening violence toindividuals

Bhoopaul Decision

“Licensees of the Law Society have an obligationto demonstrate fairness, accuracy, integrity, andrespect for the rule of law. The information onthe blogs demonstrates, through the numerousunfounded and defamatory allegations, that theApplicant does not have concern for, or possess,any of those four qualities.”

Ormilla Bhoopaul v. Law Society of Upper Canada, 2011 ONLSHP 0035




Class of DDS 2015 Gentlemen

Dalhousie University Dental Student Fiasco

• 13 male dental students had a “private”(closed) Facebook chat group

• Facebook group included sexist andinappropriate comments and pictures,including comments about female classmates

• A complaint was made… total chaos followed

Chaos at DalhousieIn the next 60 days:

• Students were suspended (then reinstated)

• Police reviewed the material to consider charges (nonewere recommended)

• An independent task force was struck to report on“misogyny, sexism, and homophobia” in the faculty ofdentistry

• Protestors on campus… even Anonymous got involved

• Unprecedented media coverage – as of July 2016, aGoogle search of “Dalhousie dentistry scandal” bringsup over 11,000 results(!)




• Students eventually reinstated andparticipated in restorative justice programwith classmates affected

• All graduated, although the task force reportnoted that “with licensing bodies reviewingtheir applications very closely, theirprofessional future remains uncertain”

• CDSBC amended its application form:

Social Media “Privacy” and ProfessionalAdmission

• “Private” comments/pictures = denial of entryto a profession?

• Degree of culpability? Part of a group vs.“ringleader”?

• Member of group? “Liking” posts?

• Freedom of speech/expression?




Keep It Out of Sight?What Is in the “Public Interest”?

“They apparently would like me to be a silent racist…”

- Matthew Hale, self-proclaimed anti-Semite and white supremacist,

reflecting on being denied entry to the Illinois Bar

“We are repulsed by Matt Hale, but we respect theprinciple of free speech and believe he is entitled to theopportunity to spew his venom without restriction”

- Richard Hirschhaut, Regional Director of the Anti-Defamation League,protesting Hale’s denial

Social Media – The Next Frontier?

In 2008, the Supreme Court ofFlorida convened a “Characterand Fitness Commission”

Purpose:to submit recommendationspertaining to the character andfitness standards in Florida’s baradmission process

Committee Report

“The committee recommended that the Board considerexpanding its current review of personal websites inorder to determine whether information should beexamined in all investigations; whether access to limited-access websites, such as "Facebook," should or shouldnot be sought; and whether a question should be addedto the Florida Bar Application to require that all suchsites be listed and access granted to the Board.”




Board Response to Recommendations

Investigation of social media on case-by-case basis, based onapplicants…

• Trying to establish rehabilitation

• With a history of substance abuse

• With significant candor concerns

• With a history of unauthorized practice allegations

• Who have worked as a “certified legal intern”,self-employed in alegal field, or as an “attorney pending admission”

• Who had involvement in an organization advocating the overthrowof the government of the United States or of any state

Reinstatement




Motivation forReinstatement

• Identity and purpose

• Prestige

• Income

• Investment in education

Former registrants are

TENACIOUS in seeking

reinstatement

5 applications over 11 years

Indecent conduct and sexualassault

Wakeford v. College of Physicians and Surgeons of British Columbia(1993 CanLll 1273)




Sowemimo v. College of Physicians and Surgeons of Manitoba(2014 MBQB 4 CanLll)


Gross deficiency in care andjudgment

Breaches of ethical andclinical standards

McOuat v. Law Society of British Columbia(2001 BCCA 104)


Misappropriating client funds

GUIDING PRINCIPLESRe Gayman 2012 LSBC 30 (Can Lll) at paragraph 23

i. The profession is regulated in the public interest.

ii. Public confidence in the profession is moreimportant than the fortunes of any oneprofessional.

iii. The ability to practise a profession is not a right buta privilege.





iv. Once the privilege is lost, it is hard to regain.

v. The privilege may be regained no matter howegregious the conduct that led to its loss providedsufficiently compelling evidence of rehabilitation ispresented. This will be hard to do.


vi. The privilege may be regained where the misconductwas committed as a result of a psychiatric or medicaldisorder that is very unlikely to recur because thedisorder has been successfully treated.

vii. The privilege may be regained where the misconductdid not have its origins in a medical or psychiatricdisorder, but the applicant has established genuineand enduring rehabilitation.


viii. As rehabilitation will be claimed by virtually allapplicants, independent corroborating evidence isrequired to establish that the rehabilitation isgenuine and enduring.

ix. The reinstatement must not be detrimental to theintegrity of the profession or contrary to the publicinterest.




Criteria for Reinstatement

Above all

Good character and competency to practise

who, in an attempt to gain admission, lied to theappeal body about their prior discipline history inanother related profession?

Would you grant reinstatement to a former registrant …




whose quality of practise was described as the “mostsubstandard dentistry ever reviewed”?


who was charged and convicted of sexual assault offour female patients while providing treatment?


who was found guilty of contempt of court fordisobeying an injunction not to practise and wasincarcerated for 15 days?





who, on an application for reinstatement, answeredyes to the question:Does your past conduct demonstrate any pattern ofincompetency or untrustworthiness that would makeregistration contrary to the public interest?


For those of you who answered yes to any of thesequestions, would you change your answer if it was thesame individual in all of these examples?

Refer to:

https://www.cdsbc.org/Documents/Anonymous-former-registrant-regcommittee-decision-redacted.pdf

• Carmel Wiseman, Deputy RegistrarCollege of Dental Surgeons of [email protected]

• Greg Cavouras, Legal CounselCollege of Dental Surgeons of [email protected]

• Alastair WadeAlastair Wade Law [email protected]

With thanks to Jocelyn Chee and Allison Maharaj for their assistance in presentation development

09172016 - Your Reputation Precedes You folder (2)/AEC16...professionals are colleges, law...

Documents

Transcript of 09172016 - Your Reputation Precedes You folder (2)/AEC16...professionals are colleges, law...