What are the factors for assessing penalty when a lawyer has failed to be on guard against being duped by clients intent on fraud?

Ontario, Canada


The following excerpt is from Law Society of Upper Canada v. Tang Trang Nguyen, 2013 ONLSHP 97 (CanLII):

Both counsel also agreed that the factors to be considered in assessing penalty, when a lawyer has failed to be on guard against being duped by clients intent on fraud, are those set out in Law Society of Upper Canada v. Frank Fazio, 2009 ONLSAP 1 para. 83: The level of moral blameworthiness of an unwitting dupe will be informed by various considerations, such as: the extent to which the licensee neglected or abdicated his or her professional responsibilities, the duration of such neglect or abdication, whether it was accompanied by other ethical breaches, its importance in facilitating the client’s criminality, and the extent to which the licensee personally benefited from the subject transaction(s). Of course, these are not the only determinants of penalty; others include, but are not limited to, the impact of the misconduct or facilitated criminality on the clients or victims, the size or quantum of the facilitated criminality, the extent of remorse, whether the misconduct is admitted and the need for proof obviated, and whether the conduct was out of character or isolated or explained, in whole or in part, by medical factors. Of course, the existence or lack of a prior disciplinary record is also of importance.

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