The chairman of the Law Society of Upper Canada’s professional regulation committee says while the number of complaints against lawyers and paralegals seems to be maintaining an even keel, the time it takes to investigate and conclude matters is becoming a concern, although not at the point he’s willing to call it a trend.
Statistics that Malcolm Mercer presented to Convocation Dec. 4 during his quarterly report show the median age of complaints in the LSUC investigation department’s queue reached a high of 308 days in the third quarter of 2015 (July 1 to Sept. 30), up from 228 in the same time frame of 2013 and 246 in 2014’s third quarter. The policy target is 240 days.
“I come to you not intending to alarm you, but I do come intending to concern you,” Mercer told Convocation during its final meeting of the year. “We’re not processing matters as quickly as we were and we’re not keeping up with the intake.”
In an interview with Law Times, Mercer explains that the number of complaints to the LSUC has been fairly consistent at around 4,800 per year. Of those, about a third are dealt with by the complaint resolution department. These are less serious complaints that typically do not require a disciplinary hearing.
Mercer says of the 4,800 complaints, only about 150 ever reach the disciplinary tribunal, but the time it takes to investigate the matters is creeping up.
The total active inventory of cases has been slowly rising to 3,609 at the end of the third quarter of 2015 from 3,225 in the third quarter of 2013.
“At any point in time, if you were to ask ‘How many complaints is the law society dealing with?’ it would be something in the range of 3,000 to 3,500. That tells you it takes on average, two-thirds of a year to process your average complaint,” Mercer explains.
The complaint department’s inventory fluctuates more than its investigation department counterpart, but ended the third quarter of 2015 with about 304 active files, similar to the 317 it had for the third quarter of 2013. Nonetheless, there were significant jumps to 409 active files in the fourth quarter of 2014 and another high point of 391 in the second quarter this year.
Complaint resolution has been able to maintain a fairly even average of about 240 days to complete a matter, but the investigation department is seeing greater pressure to maintain its averages.
“The investigations side is calling on the assistance of the complaints resolution group for some extra resources. The inevitable effect of that is that they’ve started to get behind with dealing with their work,” Mercer says.
He says there are a number of potential factors, adding it’s a situation that will be monitored closely over the next quarter or so to determine if this is a full trend or if it’s just a “bump” in the numbers.
He says there are several potential factors to the increase in investigation time, including that matters being investigated are becoming more complex.
“It may be simply that you need more resources because over time, while things are coming at you at the same rate, you’re not able to process them as quickly as you should,” he says. “There is some suggestion that we are receiving complaints that are more complicated to investigate in that they have multiple clients or multiple issues.”
LSUC CEO Rob Lapper said during Convocation that the use of interlocutory suspensions and restrictions are becoming more common. With an increased focus on managing risk when lawyers are being investigated, it comes with a greater demand on time and resources.
“That would be an explanation why, when the number of cases coming in is relatively constant, they’re taking longer to process,” Mercer says.
Another factor Mercer pointsto is that the LSUC has a greater focus and appreciation of mental health issues for lawyers and other legal professionals facing an investigation. The mental health task force is becoming increasingly involved in the investigation process, again adding more time.
“Those can be complicated to deal with, but it’s appropriate they be dealt with and they take more resources and extra time,” Mercer says. “Staff is aware and in fact raised the issue; staff are now proceeding to address it. It may mean that extra resources will need to be brought to bear or it may mean that we should just watch a bit and see whether or not we’re seeing a trend or the inevitable movement up and down over time.”
Disciplinary tribunal chairman David Wright says the issue of how long investigations are taking doesn’t seem to be affecting the length of the tribunal disciplinary process, although he adds that some of the matters are becoming more complex.
“We’ve been working really hard to reduce length of the matters before the tribunal,” with things such as pre-hearing conferences to narrow issues, using adjudicators, and promoting resolution through joint submissions,” he says. “I think the complexity of discipline and licensing matters is always increasing because the world is becoming more complex and the legal world is becoming more complex.”
Wright says the variety of matters at the tribunal is increasing and several recent mortgage fraud matters, in particular, had been slowly working their way through the process.
“Those were particularly complex and we’re seeing different kinds of issues come before the tribunal, [such as ] refugee law matters or other related issues, but overall I think there’s always a mix of legally complex, factually complex, and other matters that may be straightforward,” he says. “Certainly, we’re working hard at the tribunal level to shorten our hearings and I think we’re having a fair bit of success.”
Brian Radnoff, a partner at Lerners LLP and frequent counsel in disciplinary matters, observes that some matters that reach the tribunal move quite quickly, while others seem to drag on “far too long.”
He says the impact to a lawyer facing a lengthy investigation process can be emotionally draining and stressful while they are also restricted from conducting certain roles, such as being an articling principal.
While the hearing process is fairly efficient, he says, part of the problem of time and an increasing inventory might rest in the hard stances the tribunal takes on some matters, such as mortgage fraud.
“Because the penalties for knowing assistance in mortgage fraud can be quite severe . . . you’re going to get more lawyers fighting things and that means more hearings on complicated, long, drawn-out matters.
“My concern is that the law society, in prosecuting these discipline matters, has to be more flexible. There has to be some understanding that not every case is the same and that a negotiated solution is always better than a contested one.”
Lapper told Convocation “we are paying very close attention” to the issue.
“Complaints generally fluctuate from year to year, but the good news, if there is any in that, is that frankly our complaint numbers, our intake numbers, are actually very stable,” Lapper said. “When one considers that the absolute numbers of our professionals are rising, the fact we have stble complaints numbers at least suggests that the ratio is good.”