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Bencher's Diary: A day of discipline

{mosinfo by=(Gary Lloyd Gottlieb) divider=(default) date=(Friday, 13 February 2009) class=(default)}Once upon a time he worked for a large firm, but eventually he became a sole practitioner.

Now he is a senior member of the bar and was appearing before a discipline hearing panel on which I sat. He was my classmate over 40 years ago, and as I beheld his visage I could see the wear and tear the years had wrought.  It is easier to see the toll time takes on others than to see it in yourself.  I am still surprised when clients ask me if the black-haired fellow sans wrinkles in the graduation picture on my office wall is that of my son.

I have a gregarious nature and would be overly fastidious if I automatically disqualified myself whenever a colleague I know appears before me in discipline.  I therefore told the senior sole practitioner that we had been classmates at law school, and while we would say hello to one another back then, we never chummed around or spoke to one another on the phone.  I asked him if he wanted me to remove myself from his case, but he said there was no reason to do that and the matter could proceed with me on the panel.

There are many cases that end up in discipline and cost all Law Society of Upper Canada members a huge amount of money for investigation and prosecution, but that with proper practice management would not have ended up in discipline at all.  My former classmate’s case was one of them.

He had failed to maintain his books and records; had untruthfully certified in his member’s annual reports that they had been maintained in accordance with the applicable bylaw; had withdrawn from his trust account with respect to a certain client more money than was held in trust on that client’s behalf; and had failed to supervise staff to whom he had delegated responsibility for maintaining his books and records and for preparing his member’s annual reports.

Professional misconduct was found and he was ordered to pay a fine of $2,000, to deliver to the law society for a period of two years his monthly trust comparisons, to participate in practice reviews, and to pay the law society $1,500 in costs.

After the chairman delivered our decision and oral reasons, I took the opportunity to make some additional comments of my own.

I said I did not intend to be a counsel of perfection.  I have always been a sole practitioner and know how hard it can be.  It is difficult to diligently attend to both the needs of clients and the administrative side of your practice.  It is hard to refuse new work and easy to let administrative tasks slide.  There’s a tendency to leave administration for a less busy time.  When you have staff it is easier to assume all is well than to spend time adequately supervising them and reviewing what they do.  

Sole practice is cyclical.  It is often feast or famine, but difficult though it may be to refuse revenue-producing work, you must sometimes do so.  You cannot put more work on your plate at the expense of neglecting administrative tasks.

Neglecting office administration and not properly supervising staff is a recipe for disaster and an invitation to investigation and discipline.

I am the last person to advocate more rules and regulations.  Indeed I am a staunch believer in less, but I recognize that principles of good practice and the multitude of rules and regulations we have governing lawyers are as much for our own good as that of our clients.

Do not do work for which you lack knowledge and expertise.  Not only will you tend to procrastinate and invite discipline for lack of diligence; there’s also a high risk you will gum things up and invite a negligence claim.

Keep detailed dockets of work done and time spent, even if you are charging on a block fee or value-billing basis; keep detailed memoranda to file; get into writing clients’ instructions and acknowledgments of advice given; and send out plenty of confirming letters. 

Money for work to be done must be put in trust.  All kinds of contingencies can arise, including your client switching lawyers.  The money is not yours until the work has been done and the client billed. 

What I have seen from my experience as a bencher is that more discipline cases arise from poor practice habits and standards than from dishonesty.

Gary Lloyd Gottlieb, a Toronto lawyer, is a Law Society of Upper Canada bencher and a Toronto sole practitioner.  His e-mail address is glgqc@interlog.com.
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