In disciplinary law, the trial does not take place before a judge or jury, but before a Disciplinary Council, which is a quasi-judicial tribunal that is independent of the professional order. The latter is made up of a president, who is a member of the Bar, and two members of the professional order, which makes it a very specialized body.
In addition, while in criminal law, prosecutions are initiated by the Director of Criminal and Penal Prosecutions, who represents the State, in disciplinary law it will often be the syndic, an independent employee of the professional order, who will file a complaint against the professional.
Unlike criminal law, where the prosecution will have to convince the judge or jury beyond a reasonable doubt of the guilt of the accused, the syndic, who represents the complainants, will have to prove the commission of the ethical fault on the balance of probabilities.
This means that he will have to demonstrate clear and convincing evidence that leads the disciplinary council to believe that there is more than a 50% chance that the offence has been committed, i.e. that it is more likely than not. If the board does not know who to believe, it will have to reject the evidence. The burden of proof is therefore less onerous for a disciplinary prosecution than for criminal law.
Concept of ethical misconduct
It is sufficient for the syndic to demonstrate, on the balance of probabilities, that the professional has committed an ethical fault for him to be found guilty. But what is an ethical misconduct?
Everyone makes mistakes in life, and if professionals could be prosecuted for the slightest mistake made, the practice of their profession would be done in fear and uncertainty. Therefore, it is not a simple error, clumsiness, negligence or questionable decision that can be qualified as an ethical fault.
Rather, it will be a significant and marked departure from the profession’s general standards of conduct, such that a breach of professional responsibilities can be concluded. To do this, the professional misconduct must therefore be serious and must taint the morality of the professional who commits it in order to speak of ethical misconduct. We will therefore speak of a reprehensible behavior, reprehensible and below what we would consider acceptable.
For example, in one decision, a vague complaint was made against a social worker for not practising according to generally accepted standards during a consultation. The client alleged, among other things, that the social worker had made a monologue and had not listened to her, had revealed certain personal information to her that would have made her uncomfortable, had used a lot of mimicry and had sat cross-legged without shoes.
The Tribunal concluded that the failure to meet the client’s expectations, or the fact that the professional’s extroverted personality irritates or pushes the client, did not amount to ethical breaches, but rather to misperceptions, subjective judgments and prejudices on the part of the client. While he may have been clumsy in his attempts to reach the client and made mistakes, this did not constitute a sufficient departure from the professional’s conduct to become a disciplinary offence.
Distinction between civil fault and criminal fault
Although the burden in disciplinary law is the same as in civil law, the evidence to be adduced will not be the same. Unlike civil law, there is no need for the professional fault to have caused damage for the professional to be held liable.
One reason for this is the distinct objectives of the two branches of law: while civil proceedings aim to compensate the victim, disciplinary proceedings aim to protect the public. The syndic will therefore not have to prove that the ethical fault has caused damage for him to be held liable.
Finally, while in criminal law the prosecution must prove beyond a doubt the material element of the offence (actus reus) and the mental element of the offence (mens rea), this burden is not required in disciplinary law. Indeed, ethical offences do not involve morally reprehensible behaviour. The syndic will therefore not have to prove the guilty intent of the professional who committed the fault.
Defence in disciplinary law
Disciplinary law, although it differs from criminal and civil law, imposes strict requirements on professionals while relying on specific rules. Understanding the nuances of this system, such as the reduced burden of proof or the notion of ethical misconduct, is essential to protecting your rights and reputation.
At Lambert Avocats, we master these subtleties and are committed to offering you a rigorous defence adapted to your situation. Whether you are the subject of an investigation or summoned to appear before a Disciplinary Council, our team will put in place a tailor-made strategy to protect your career and professional integrity.
Contact us today for a confidential consultation.