Lawyers’ discipline records with the Law Society of Upper Canada will continue to be permanently accessible to the public, after Convocation voted that keeping complete records is in the best interests of transparency.
The majority of benchers at last month’s Convocation voted that there are no circumstances that call for a discipline or conduct record to be vacated after any period of time.
While it reflects the current practice, the decision is a reversal of a 1999 report by the professional regulation committee and subsequent policy decision at Convocation, which stated there were circumstances in which discipline or conduct records could be vacated.
Following the 1999 decision, the committee created a working group that in 2002 proposed that if the law society vacated some discipline records, it should consider pardons rather than expunging or sealing the records, but only after five years and a public hearing before the hearing panel. The 2002 report only recently came back before the committee at the request of one of the benchers.
However, Bencher Clayton Ruby, chairman of the committee, told Convocation that times have changed since 1999, with a new drive toward openness and transparency aiming to ensure that the public has as much knowledge about a lawyer as possible.
“If you grant pardons or erase records, you may well find it impossible to tell the public about a lawyer’s past,” says Ruby.
Committee vice chairman Thomas Heintzman says, “If we expunge a record, we’re really making a decision for the client.”
“At a time when there are increased expectations that professional regulation will be effective, transparent, and accountable, the committee views a policy by which discipline or conduct records may be vacated as untenable,” says the report.
In particular, the committee says the 2004 Supreme Court decision in Finney v. Barreau du Quebec emphasizes that a member’s entire discipline history is relevant “to assess the risks that a lawyer poses to the public.” In Finney, the court found the barreau liable for damages to the client of a lawyer under investigation, because of failure to “adequately address the issues of professional conduct.”
The committee also points to a strain on the hearing process, bencher resources, and additional budgetary concerns if pardons were granted for some records. The law society has handed down nearly 800 disciplinary orders since 1996 for matters other than membership termination, with hundreds more before then. The committee notes that it would be impossible to know how many members would seek a pardon if the process were available.
“Limitations on access to discipline records will become an issue if the law society implements any of the models for vacating records,” it says.
The committee adds, “The society will not be criticized in the public realm for maintaining a record of those members who have breached professional conduct, but may well be criticized for qualifying the fact of the breach or removing it entirely from its public records.”
Toronto Bencher Gary Gottlieb, however, says there must be circumstances where a discipline record could be expunged.
“It’s simply not fair. It’s not popular to say, but lawyers have rights too,” he says.
Bencher Larry Banack agreed: “I am of the view that Convocation was right in 1999, that there are some circumstances where records can be vacated.”
The 1999 report listed several reasons in support of vacating discipline records, including the fact that some members who are before hearing panels are suffering from personal problems that influenced their conduct and that matters are clarified as time passes.
Concerns raised at the time about vacating records included the effect of undermining public confidence in the society and the expense of administation.
According to the law society’s current policy on publication, adopted in 2005, tribunal decisions are posted on the law society’s web site for three years. After that period, the full decision is taken off the law society web site, but the finding and penalty against the member remain on the site, with a link to the full decision on CanLII or Quicklaw.
Convocation’s decision not to vacate any records follows a similar announcement from the Ministry of Health and Long-Term Care last month, which requires discipline matters be listed on a health regulatory college’s web site.Decision summaries from cases involving health professionals also now must be permanently posted on a college’s web site.