Friday, June 14, 2013

Minimizing Sanctions for Professional Misconduct

When facing allegations of professional misconduct, the first goal for any professional should be to advance a strong defence which can result in the professional regulator dismissing all of the allegations as unfounded. However, when that is not possible, the second goal should be to minimize the impact of any misconduct proceedings on the ongoing practice of your profession.

Professional misconduct proceedings can for many professionals actually have more detrimental outcomes than criminal proceedings for most of the population, because criminal proceedings rarely have the potential to permanently take away a person's livelihood. Not so with professional misconduct proceedings.

The good news is that professional misconduct proceedings embrace a wide spectrum of sanctions, ranging from admonishment, counselling or cautions on the low end, through to fines, suspensions and revocation of licence. Completely and permanently losing a licence to practice is rare, but it does happen, and needs to be guarded against at all costs.

Retaining someone to engage in resolution negotiations for you with the regulator at the earliest possible stage of proceedings - even at the investigative stage - can be the best way to minimize sanctions for professional misconduct. And even if a negotiated sanction isn't possible, strong representation before a hearing tribunal from someone who is familiar with past precedents of others in a similar situation who received reasonable sanctions will also benefit you.

The usual meaning of the term "in good standing" with your association, and thus your continuing ability to work in a professional capacity for an employer or yourself, usually only requires your licence to not be suspended or revoked. It does not preclude ongoing or completed discipline proceedings, as ongoing proceedings are only allegations, and even completed findings of misconduct are usually remedial in nature - seeking to push a professional in the right future direction, rather than snuffing out any future chance of change and contribution to serving the public.

The challenge with some professional discipline proceedings is the lack of an intermediate range of sanctions. For example, for the defence of some police officers whom I represent from time to time on internal administrative discipline matters, the maximum penalty might jump from forfeiture of 10 days pay to dismissal, with nothing in between. A negotiated sanction can therefore be important to minimize the risk that 10 days pay appears to a sentencing tribunal to be too minimal, and thus they jump directly to dismissal.

Proposing at an early stage a concrete remedial plan to the regulator can also be an important part of a strategy to minimize sanctions for professional misconduct. This remedial plan might include medical treatment of some sort, the taking of particular kinds of courses, or even working for a time under the supervision of another professional. You shouldn't leave it to the regulator to come up with a plan, you need to be proactive and then sell the regulator on a sanction you can live with. True, you aren't guaranteed they'll accept your plan, but with a firm enough advocate representing you, the regulator will realize the great costs it may suffer from conducting a protracted discipline hearing against you, and the risks it runs in not being successful at such a hearing. One particularly attractive incentive may be to voluntarily offer the regulator something that it might not be able to obtain through a tribunal imposed sanction, and in return request that no suspension or revocation of licence be imposed.

I find that the sanction outcomes of professional discipline proceedings aren't as bound by past precedent as are criminal and regulatory prosecutions in the courts. Discipline bodies can get more creative as to sanctions, your advocate can form a closer and more collaborative relationship with the regulatory investigators and prosecutors than would ever be possible in a criminal prosecution-defence situation, and thus an optimal outcome for you which minimizes the impact of any sanctions on the practice of your profession can be quite achievable.

Wednesday, June 12, 2013

Partition and Sale Court Applications: The Law's Solution to Co-Owners of Real Estate No Longer Getting Along

If Only the Division of Real Estate By Partition Were So Simple
Lots of folks co-own real estate with other people. Perhaps most commonly, spouses may be co-owners. But so too are other family members, investors, business partners, corporations, and even governments.

Let's face it, acquiring real estate has always taken a big chunk of change out of anyone's budget, so co-owning enables that cost to be shared. Co-owning can also give security and peace of mind to others that their contributions to a personal or business relationship are valued, even where they aren't contributing cash to acquire the property. Finally, co-owning might be something imposed on you, like when you and your 17 brothers and sisters jointly inherit the family cottage from your deceased parents.

However, when those co-owner relationships break down in so severe a way that one or more of the co-owners are desperate to escape the relationship, what's to be done? Well, anything can be done by agreement. All parties agree to sell, and come up with some formula to split the net proceeds of disposition and the costs of sale, and you're in business. No lawyers required, other than real estate lawyers. Unfortunately, when even one of the co-owners adamantly refuses to sell, you're stuck. You can't secretly or publicly sell a property out from under a co-owner, unless you've previously concluded some kind of agreement with the person permitting sale. This is where the courts (and yes, wait for it, the LAWYERS) are needed.

Sometimes it will be a spouse who refuses to leave the family home notwithstanding the end of the domestic relationship. At other times siblings will fall to squabbling over who gets to stay at the cottage during the three non-rainy weeks of the summer, or how the repairs to the cottage will be funded now that snow has collapsed the roof, squirrels have eaten the wiring, and rising lake levels have swept away the beach. Or perhaps a business partner will flee in the middle of the night, leaving you on the hook for all property expenses, and not leaving you permission to sell the property.

But wait, the courts (and lawyers) have a cure for your property ills: the partition and sale application. Five things you need to know about it:

1. you need to go to a superior court of justice, which might be called something different where you live - generally the highest level trial court in your jurisdiction;

2. you need to provide notice (or at least make reasonable attempts to provide notice) to the other co-owners that you are seeking court authority to sell the property, and then prove to the court you provided such notice;

3. you need to put sworn evidence before the court, usually in the form of affidavits and exhibits, proving your rights to the property and why you need court authority to sell it;

4. you should try to present the court with a draft order seeking relief which spells out all the steps of sale you are seeking authority for - like listing with a real estate agent, for a minimum selling price based on an appraisal, and authority to transfer and register the transfer after sale notwithstanding the lack of consent of the co-owner(s);

5. you will usually be able to link in your application to some kind of statutory authority, like in Ontario where the Partition Act (isn't it nice when the Act's title is the same as what you are seeking?) says at sections 2 and 3: "All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land ... Any person interested in land in Ontario ... may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested."                                    

True, I've never used the word dower since law school, and I don't think I've ever had occasion to even write the word coparcener, but hopefully you get the gist that anyone who owns an interest in land can ask for it to be split or sold. For most of us, it's unlikely we'll be co-owners of a vast tract of land without buildings that lends itself to being equitably split up, so usually we'll be wanting sale.

To accomplish all this, you'll usually need a lawyer. This isn't really a DIY law kind of undertaking. But with the value of real estate today, and the ongoing expenses of its upkeep, getting court authority to divest yourself of a property will hopefully be worth the legal expenses. Sometimes no one will even show up in court to oppose you, but you'll still need some authority to partition or sell.