Sentencing a lawyer for criminal acts

Today’s decision in R. v. Rosenfeld, 2009 ONCA 307 provides a basis for suggesting when a lawyer commits a crime, especially one related to justice issues, the status as a lawyer is a significant aggravating factor.  The Court holds:

 

 

[40]          The appellant’s status as a lawyer is a significant aggravating factor for two distinct reasons.  First, apart from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it.  Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community.  Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect.  Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession.  In the long run, that cynicism must undermine public confidence in the justice system:  see R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.).

 

[41]          The second reason the appellant’s status as a lawyer is an aggravating factor relates to the specifics of this crime.  Lawyers, for arguably valid reasons, are exempt from the reporting conditions applicable to other professions and financial institutions who deal in cash transactions.  The communications between lawyers and their clients, also for valid reasons, are protected from disclosure by the client/solicitor privilege.  This privilege attaches uniquely to lawyers and their clients.  The wiretap interceptions and Majcher’s evidence demonstrate that the appellant appreciated the advantage to a money laundering operation of both the solicitor’s exemption from the reporting conditions and the client/solicitor privilege.  He was ready and willing to abuse these specific privileges available to him because of his status as a lawyer to enhance his money laundering services.  The appellant’s willingness to prostitute his legal services and abuse the special privileges associated with them are significant aggravating features of his conduct.