The appellate court rejected a lesser, hybrid sanction consisting of a fine and a shorter suspension
The British Columbia Court of Appeal has affirmed a tribunal decision to impose a six-month suspension on a BigLaw partner for misconduct he engaged in more than a decade ago as a junior lawyer.
The appellate court acknowledged that the lawyer, Samuel Cole of Cassels Brock & Blackwell LLP, has since rehabilitated himself and is described by colleagues as “mature, competent, and ethical.” However, the court maintained that a six-month suspension was more appropriate than a hybrid sanction involving a four-month suspension and $20,000 fine, the original punishment ordered by a Law Society of British Columbia hearing panel.
In its decision last week, the appellate court noted that there will be “few cases where both a suspension and a fine serve the objectives of a disciplinary action,” since “fines and suspensions are disciplinary actions that sit at different points on the severity spectrum.”
The appellate court said a fine will generally serve little purpose in cases where the misconduct is serious enough to warrant a suspension, adding that “if a suspension and a fine are imposed, it could create an appearance that a lawyer is being permitted to ‘pay to practise.’
“This risks undermining public confidence in the legal profession and the administration of justice,” the appellate court said.
The misconduct in the case occurred more than 10 years ago, when Cole was a junior lawyer providing legal advice and services to a corporate client and its principal, in relation to a private placement financing intended to facilitate the corporate client’s reverse takeover of a company.
According to the appellate court, Cole encouraged and facilitated the principal’s indirect participation in the private placement, using the principal’s girlfriend to purchase shares. Cole did this despite a security regulator’s instructions that no insider could participate in the private placement. Cole also filed material with the regulator containing false information while facilitating the reverse takeover.
The conduct led to an investigation by a securities regulator, which resulted in sanctions against the principal; he has since faced challenges in finding work in his field.
At a misconduct hearing, an LSBC hearing panel found that Cole was not a credible witness. He denied advising the principal to participate in the private placement financing.
At a sanctions hearing 10 years after the misconduct, however, Cole admitted he communicated with the principal about the regulator’s direction. He acknowledged he was responsible for his actions and that they constituted professional misconduct warranting suspension from practice. However, he also expressed concern that a lengthy suspension would negatively impact his practice and clients.
Cole explained that at the time of the misconduct, he was early in his career and working at a small firm with little support or guidance. He added that he felt pressured to “do it all” and should have sought advice from experienced counsel.
Cole said he has since worked hard to rehabilitate himself and takes care to restrict his practice to areas within his competence. He provided the court with two letters of support from senior lawyers at his firm, who affirmed Cole’s competence and ethics.
The LSBC hearing panel ordered that Cole serve a four-month suspension and pay a $20,000 fine. However, the LSBC appealed, arguing Cole should serve a sentence longer than four months.
After reviewing the hearing panel’s decision, the LSBC Tribunal Review Board ruled in January 2025 that the hybrid sanction should be replaced with a six-month suspension.
Cole appealed, arguing that the tribunal’s analysis incorrectly focused on whether there were exceptional circumstances to justify the hybrid sanction. Both the LSBC hearing panel and the tribunal had found that hybrid sanctions are only appropriate in exceptional cases.
While the appellate court agreed with Cole’s argument that the Legal Profession Act, which outlines the LSBC’s role and responsibilities, “permits creative and flexible approaches to sanctioning,” the court disagreed that the tribunal had imposed an exceptional circumstances requirement in Cole’s case.
“The [tribunal] board’s language was imperfect. But reading the reasons functionally, contextually, and as a whole, I am satisfied the board appropriately considered the totality of the circumstances in determining whether the hybrid sanction imposed by the [LSBC hearing] panel was correct,” the appellate court said.
“In particular, the board considered the nature of the misconduct and Mr. Cole’s circumstances, and it made findings with respect to mitigating, neutral and aggravating factors,” the appellate court added. “It did not require the existence of exceptional circumstances to justify the combined sanction. Rather, it looked for a reason to support the imposition of a fine and found none.”
Cole and counsel for Cole did not respond to requests for comment.
A spokesperson for the LSBC declined to comment on the court’s decision.
