Disciplinary Infractions and Sanctions
Explanation
Every lawyer, whether practicing or a trainee (avocat stagiaire), is subject to disciplinary responsibility if they breach the duties of their profession. This subjection extends to include any act that degrades the profession or its dignity, whether this act occurs during the practice of the profession or outside of it. In these cases, the lawyer is subject to disciplinary sanctions (sanctions disciplinaires).
The law specifies four graduated disciplinary sanctions. These sanctions begin with a warning (l'avertissement), then a reprimand (le blâme). The most severe sanctions reach suspension from practicing law (la suspension) for a period not exceeding three years, and finally striking off the Bar association roll (la radiation).
The penalty of temporary suspension has significant effects on the lawyer's career. The period of this suspension is not calculated within the traineeship period, the retirement period, or the periods required to assume Bar association positions. Furthermore, the disciplinary council (le conseil de discipline) has the right to deprive the temporarily suspended lawyer of the right to run for membership in the Bar council for a period of up to ten years.
The penalty of deprivation from running for the Bar council becomes mandatory in a specific case. This obligation applies if the judgment against the lawyer results from their intentional breach of a duty imposed on them by a Bar association position assigned to them.
The President of the Bar (le Bâtonnier) alone has the authority to refer the lawyer to the disciplinary council. The President of the Bar can make this decision spontaneously or based on a complaint. The referral may not be completed until after the President of the Bar, or whoever they delegate, listens to the lawyer, unless the lawyer fails to attend despite being summoned.
The lawyer does not escape disciplinary trial simply by leaving the profession. The law states that the separation of the lawyer from the legal profession does not prevent their disciplinary trial for any acts they committed prior to this separation.
Official legal articles
Think deeper
Why did the legislator make the penalty of deprivation from running for the Bar council mandatory upon the intentional breach of the duties of a Bar association position, and how does this relate to the general goal of disciplinary sanctions to protect the dignity of the profession?
Flashcards
What are the four disciplinary sanctions that can be imposed on a lawyer?
Warning, reprimand, suspension from practicing law for a period not exceeding three years, and striking off the Bar association roll.
Can a lawyer be disciplined for an action taken outside the scope of practicing the profession?
Yes, they are punished if, outside the practice of the profession, they commit an act that degrades it or behave in a manner incompatible with its dignity.
What is the effect of the temporary suspension penalty on the traineeship and retirement periods?
The period of temporary suspension is not included in the calculation of the traineeship period, the retirement period, and other periods designated for assuming Bar association positions.
When is the penalty of deprivation from running for the Bar council mandatory?
It is mandatory in the case of a judgment against a lawyer due to their intentional breach of a duty imposed on them by a Bar association position assigned to them.
Who has the authority to refer a lawyer to the disciplinary council?
The President of the Bar alone, and they issue their decision spontaneously or based on a complaint or information submitted to them.
Is it permissible to refer a lawyer to the disciplinary council without listening to them?
This is not permissible except after they are listened to by the President of the Bar or their delegate, or upon their failure to attend despite being summoned.
Does the separation of a lawyer from the profession prevent their disciplinary trial?
No, the separation of the lawyer from the legal profession does not prevent their disciplinary trial for acts committed before their separation.
Practice questions
A trainee lawyer behaved in a manner that degrades the profession while attending a social event outside their working hours. Are they subject to disciplinary sanctions?
Every lawyer is subject to sanctions if they commit an act that degrades the profession, whether practicing or a trainee, and whether during or outside its practice (Article 99).
What is the maximum duration for the penalty of suspension from practicing law according to the law?
The law limits the penalty of suspension from practicing law to a period not exceeding three years (Article 99).
A lawyer was suspended from practicing the profession for two years. How does this period affect the calculation of their retirement period?
The period of temporary suspension from practicing law is not included in the calculation of the retirement period (Article 100).
A lawyer intentionally breached a duty imposed on them by a Bar association position. What is the mandatory additional penalty when they are judged with temporary suspension?
The penalty of deprivation of the right to be elected as a member of the Bar council is mandatory in the event of an intentional breach of a Bar association position duty, for a period not exceeding ten years (Article 101).
The President of the Bar received a complaint against a lawyer. Can they immediately refer them to the disciplinary council without summoning them?
The referral of a lawyer to the disciplinary council is not allowed except after they are listened to by the President of the Bar or their delegate, or upon their failure to attend despite being summoned (Article 102).
A lawyer committed a professional violation and then separated from the legal profession. Can they be tried disciplinarily?
The separation of the lawyer from the legal profession does not prevent their disciplinary trial for acts committed before their separation (Article 103).
Case problems
A practicing lawyer was appointed to a Bar association position. They exploited this position and intentionally breached their Bar association duties. The disciplinary council decided to punish them with suspension from practicing law for one year only, without any other penalty. Is the disciplinary council's decision compliant with the law?
Model answer
The disciplinary council's decision is entirely non-compliant with the law.
When the disciplinary council sentences a lawyer to temporary suspension, it may add the penalty of depriving them of the right to be elected to the Bar council for up to ten years (Article 101).
This additional penalty is mandatory if the judgment is due to the lawyer's intentional breach of a duty imposed by an assigned Bar association position (Article 101).
Since the lawyer in this case intentionally breached their Bar association duties, the disciplinary council must have inevitably decided to deprive them of running for the Bar council.
The council's limitation to the temporary suspension penalty only constitutes a violation of the mandatory text imposing the additional penalty (Article 101).
Self-grading rubric
A client submitted a written complaint to the President of the Bar against a trainee lawyer, accusing them of behavior that degrades the dignity of the profession outside working hours. The President of the Bar decided to immediately refer the trainee lawyer to the disciplinary council without summoning them to be listened to, arguing that the act occurred outside the practice of the profession and that the lawyer is still a trainee. Does the President of the Bar have the right to do so?
Model answer
The President of the Bar does not have the right to immediately refer the trainee lawyer without summoning them to be listened to.
First, the trainee lawyer is subject to disciplinary sanctions exactly like the practicing lawyer, even if the act was outside the practice of the profession if it degrades its value (Article 99).
Second, it is not permissible to refer the lawyer to the disciplinary council except after they are listened to by the President of the Bar or their delegate (Article 102).
The only exception to not listening is the lawyer's failure to attend despite being summoned.
Since the President of the Bar did not summon the lawyer to be listened to in the first place, the immediate referral is void and violates the legally mandated procedures (Article 102).