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Rationalizing Professional Misconduct: an Examination of Techniques of Neutralization in Lawyer Discipline Proceedings

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Rationalizing Professional Misconduct: An Examination of Techniques of Neutralization in Lawyer Discipline Proceedings by Kouri Keenan M.A., Simon Fraser University, 2009 B.A., St. Thomas University, 2004 Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in the School of Criminology Faculty of Arts and Social Sciences © Kouri Keenan 2019 SIMON FRASER UNIVERSITY Fall 2019 Copyright in this work rests with the author. Please ensure that any reproduction or re-use is done in accordance with the relevant national copyright legislation. Approval Name: Kouri Keenan Degree: Doctor of Philosophy (Criminology) Title: Rationalizing Professional Misconduct: An Examination of Techniques of Neutralization in Lawyer Discipline Proceedings Examining Committee: Chair: Sheri Fabian University Lecturer Joan Brockman Senior Supervisor Professor Margaret Jackson Supervisor Professor Emerita Jacqueline FauBert Supervisor Adjunct Professor Deborah Connolly Internal Examiner Professor Department of Psychology Fiona Kay External Examiner Professor Department of Sociology Queen’s University Date Defended/Approved: December 11, 2019 ii Abstract This thesis investigates the use of neutralization techniques by lawyers to justify, excuse, and rationalize their behaviour in disciplinary action for misappropriation, real estate fraud, and conviction for serious financial criminal offences. In addition to assessing the nature and frequency of lawyer neutralizations, this study also considers the extent to which law society discipline hearing panels evaluate and respond to these defence and mitigation strategies in making a sanctioning determination. The dataset consists of 393 law society discipline decisions from eight of Canada’s 14 provincial and territorial law societies decided between 1990 and 2017. Content analysis addresses the characteristics of these lawyers, how they use techniques of neutralization and are disciplined by the law societies, and how hearing panels evaluate and respond to these rationalizations. The research findings have implications for neutralization theory and its application to lawyer discipline, for stakeholders and policymakers. The conclusions focus on three issues: 1) the prevalence of substance use and other mental health concerns in lawyer discipline cases, 2) the role of post-offence mitigation in the sanction determination, and 3) the suggestion that mitigating factors should be re-examined as techniques of neutralization with the goal of neutralizing some of them when imposing sanctions in disciplinary cases. Keywords: white-collar deviance; lawyer discipline; techniques of neutralization; professional self-regulation. iii Acknowledgements This thesis marks the culmination of a long journey that would not have been possible without the support, guidance, and encouragement of many people. It truly takes a village. First and foremost, I would like to express my sincere gratitude and thanks to my senior supervisor, Professor Joan Brockman, for her mentorship, dedication, patience, and continuous support during this pursuit. She was instrumental in guiding me through the entire research process from ideation through completion. I would not have been able to finish my PhD without her in my corner. Thank you, Joan, for your profound belief in me and my work. For that, I am truly grateful. I am extremely grateful to my other committee members, Dr. Margaret Jackson and Dr. Jacqueline Faubert, for their knowledge, insightful discussions, and invaluable suggestions throughout the preparation and review of this thesis, which contributed to the success of this study. You have had a tremendous impact on both my personal life and professional career. I would also like to thank Dr. Deborah Connolly and Dr. Fiona Kay for graciously agreeing to serve as external examiners. Your feedback during the final stages of this research was very helpful. I would like to extend my sincere thanks to Dr. Sheri Fabian for her friendship and for being a sounding board for me to discuss my research. I am grateful for funding from the Social Sciences and Humanities Research Council of Canada (SSHRC) and for other financial assistance provided by Simon Fraser University that helped support my research. To my father, Jim, mother, Sabina, and sister, Megan -- words cannot express how grateful I am to you for unwavering love and support over the years. Thank you for encouraging me to dream big and for always believing in me. You were my biggest source of strength and motivation throughout this endeavour. I dedicate this thesis to you, and to the loving memory of my father. He would have been so proud of this moment. iv Finally, I am deeply indebted to my partner and best friend, Deva, for her unconditional love, support, and understanding throughout this lengthy and often challenging journey. Each and every day, she would remind me, “you are further ahead now than you were at the beginning of the day.” You provided me with unending inspiration and motivation, especially during difficult times. I love you dearly and look forward to celebrating our next chapter together. v Table of Contents Approval ............................................................................................................................. ii Abstract ............................................................................................................................. iii Acknowledgements ........................................................................................................... iv Table of Contents .............................................................................................................. vi List of Tables ..................................................................................................................... ix List of Figures ................................................................................................................... x Chapter 1. Introduction ............................................................................................... 1 White-Collar Crime and Misconduct ................................................................................. 1 Regulating Canadian Lawyers .......................................................................................... 5 Structure of the Dissertation ............................................................................................. 7 Chapter 2. A Review of the Literature ........................................................................ 9 Self-regulation as a Form of Social Control ...................................................................... 9 Arguments in Favour of Self-Regulation ......................................................................... 12 Expertise ..................................................................................................................... 12 Flexibility and Efficiency .............................................................................................. 13 Incentives for Compliance ........................................................................................... 13 Lower Costs ................................................................................................................ 14 Arguments Against Self-Regulation ................................................................................ 14 Conflict of Interest ....................................................................................................... 15 Inadequate Enforcement ............................................................................................. 16 Anti-Competitive Behaviour ......................................................................................... 17 Insufficient Resources ................................................................................................. 18 Why Lawyers May or May Not be a Special Case for Self-Regulation ........................... 18 Misconduct Funnel .......................................................................................................... 21 Funnel In ..................................................................................................................... 22 Funnel Out ................................................................................................................... 24 Funnel Away ................................................................................................................ 27 Self-Regulation and Lawyer Discipline ........................................................................... 29 Possible Sanctions Imposed for Ethics Violations and Other Sanctionable Conduct . 36 Theoretical Framework ................................................................................................... 39 Neutralization Theory .................................................................................................. 42 Neutralization Research and White-Collar Offending .................................................. 50 Chapter 3. Research Design and Methodology ...................................................... 56 The Use of Archival Data in Studying Techniques of Neutralization in Lawyer Discipline ........................................................................................................................................ 56 Dataset ............................................................................................................................ 60 Data Collection
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