The Law Society of Ontario should be doing something about this. Why a part of our fees does not go to establishing a permanent duty counsel system has always been troubling, if not inexplicable. However, the profession should know that there is help out there on a volunteer basis.
It is clear that some do not want representation; nevertheless, if the decision is made in an informed way, so be it. There are some who want to represent themselves, a few are vexatious at the process itself, many cannot afford to retain counsel and others who just want to dim the shame and just can’t ask for help.
Many do not understand the catastrophic damage that can accompany a discipline hearing let alone a finding of professional misconduct or conduct unbecoming.
Professional misconduct is that which is connected to our practice. Conduct unbecoming could be unrelated to our practice, encompassing our conduct in the community; for example, a charge of impaired driving. Nevertheless, in both cases, a guilty finding results in a record that lasts forever. Just as there is no right to remain silent or to refuse to co-operate with an investigation, there is no pardon.
Moreover, the Law Society of Ontario can prosecute us for not co-operating in a summary hearing. A permanent record will result, even if the substantial allegations are unfounded.
For some years, The Advocates’ Society has provided volunteer duty counsel to assist at hearings in some cases. This includes the summary hearing prosecutions for failing to respond and co-operate. They perform an admirable service, but the system is voluntary and they are limited in what they can realistically do on short notice and without, of course, a comprehensive grasp of all the issues that a private retainer or full-time duty counsel program could provide.
There is another “program” — if I can call it that — of duty counsel that also renders a remarkable and generous service.
At the tribunal, which is the forum where prosecutions take place, there is something called a Proceedings Management Conference. This is referred to as a PMC. This is essentially a first appearance scheduling hearing. Volunteer duty counsel are present on each PMC date to guide and assist licensees facing prosecution. These duty counsel stay until noon and have an office to use on each PMC date.
Although their assistance may be brief at the PMC, they remain on-site for persons who may wish to access them for procedural advice with ongoing matters or indeed with matters at the front end. The tribunal office can be called, and it will connect the licensee with the duty counsel office by phone.
These duty counsel are not a substitute for counsel and do not give substantive advice, but they can help and they do so by listening, guiding, explaining the process and urging that other counsel be retained.
In an age when we are all stepping out from behind the stigma of mental illness and depression, these volunteers perform an important role in assisting where assistance is lacking in these situations.
There is another step in the discipline process at tribunals, after the PMC, called the Pre-Hearing Conference. This is much akin to a judicial pretrial, an off-the-record meeting with discipline counsel, a tribunal adjudicator assigned by the chairperson and the licensees and or their counsel.
In limited cases, especially where there are health issues and the licensee clearly cannot afford counsel, the PMC duty counsel will assist at the PHC to identify the issues, narrow the focus, discuss resolutions and attempt to help those who cannot or should not help themselves.
Duty counsel are vigilant to ensure that they are not being misused, if I may, by licensees who just don’t want to retain counsel. They are there to help those who really need it, who think they can do it themselves yet do not quite understand the procedure, the seriousness of the allegations or indeed are incapable of advancing their own explanations, perhaps defences.
The underlying issue here is a need for mentoring and help for the many who don’t know how to ask or can’t. Many lawyers and paralegals operate on their own, with no mentors or colleagues. We all know that not a day goes by that we don’t benefit from a second opinion, a shoulder, perhaps a safety net.
I can say that, in my opinion, a majority of licensees that counsel assist have not told anyone about their difficulties, have no idea that the response they gave or the interview they granted to the law society investigators was the escalation of the problem, not the end.
This is a great profession. We want to help our colleagues so that they can help their clients. As long as the Law Society of Ontario does not provide a permanent duty counsel system, individual volunteers will continue to help out in the best traditions of the bar. However, asking for help, not being afraid to admit failure and accepting that we are human should be part of all our lives and not just kick in once we are being accused of breaking the rules.
We are problem solvers. Clients come to us in crisis and we help them to admit failure, accept that they aren’t perfect and find solutions. Yet, we have difficulty doing that for ourselves.
Bill Trudell is a veteran criminal lawyer in Toronto who frequently represents lawyers and paralegals at the law society.