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Speaker's Corner: One lawyer’s wish list for change from newly elected benchers

While lawyers have chosen 40 new or re-elected benchers to govern the profession, an embarrassingly low number of them — just 34 per cent of eligible voters — cast ballots in the recent election.

We often frown at the low turnouts for our federal and provincial elections, prompting some commentators to suggest making voting mandatory as in several other countries. While that’s perhaps an idea for another time, we should be critical of ourselves for the apparent disinterest in choosing who governs us given that our tools as lawyers are the laws of this country.

Nevertheless, congratulations are in order to all those who ran as well as those who won. In the meantime, there’s important work to do, particularly when it comes to efficiency and fairness in the discipline process.

For many years, I have advocated for an ombudsman for the members of the law society. In essence, the law society leaves it to pro bono mentors, volunteers, and outside organizations such as The Advocates’ Society to provide care to lawyers and paralegals in need.

It needs to pay more attention and assistance to individual members, especially those who aren’t at large law firms. An independent office within the law society, clothed with confidentiality, could well serve members in crisis and perhaps steer them towards help before problems escalate.

The law society has been vocal about access to justice and the need to address legal costs in the community at large. That seems quite ironic when we examine the reports of discipline cases before our tribunals and note how many of our colleagues don’t have counsel.

There are many reasons why lawyers represent themselves. Financial inability to retain counsel is certainly one of them. Very few lawyers scorn the offer of help and are dismissive of the process. Those in denial and blanketed by shame are likely a more significant number.

The Advocates’ Society provides pro bono volunteers to help at hearings. But this program is under strain and is far from efficient or comprehensive. Pro bono counsel don’t have the time and ownership of a case from its inception. While it would be disastrous in many cases if this program didn’t exist at all, it’s not sufficient.

At the same time, a group of volunteer counsel also gives time at proceedings management conferences as part of an effort to invite licensees to seek advice and offer guidance at the front end of the hearing process. The leadership of Law Society Tribunal chairman David Wright in assisting and encouraging these efforts is commendable.

Nevertheless, can someone explain why there’s no duty counsel system in place at the law society given its financial resources?

Our rules provide that we have a duty to co-operate with our regulator’s investigation. There is no right to remain silent. Lawyers must send a response and an interview, if requested, is mandatory.

However, the law society takes the position that it won’t provide a transcript of this voluntary interview to the licensee or counsel unless the matter proceeds to a discipline hearing. Therefore, you have no right to a transcript of your interview from the law society as part of its investigation. Many licensees, in fact, undergo interviews without counsel present only to learn their explanation ends up being a nail in their coffin.

It should also be mandatory to advise licensees under investigation in bold and plain language that they have a right to consult with counsel. While the information is there in an information sheet, it needs to emphasize it.

It’s absolutely unacceptable to suggest that lawyers and paralegals don’t need advice when facing potentially career-altering investigations by their regulator. There have been repeated suggestions that law society letters announcing an investigation and requesting a response to a complaint should emphasize and highlight the potentially serious nature of the matter and urge the licensee to consult with counsel. Again, the cost savings of assisting at the front end and providing focused help would be demonstratively tangible.

There is a summary application process at the law society for licensees who fail to respond. The penalty most often is a suspension. Some licensees just refuse to co-operate. Others may have many reasons for not responding: shame, mental illness, fear, disorganization or collapse. These are situations that affect every one of us in some form at some time in our lives.

I would ask benchers to consider not only a warning that failing to respond could result in discipline but a clear suggestion to consult with counsel to get help on whatever the issue might be.

If the licensee doesn’t reply, this measure may be delaying the inevitable. But if just one lawyer in crisis reaches for that olive branch, the financial savings will be demonstrative. Finally, is it not time to revisit the issue of a pardon? It makes no sense that a licensee who has a discipline record can never have it purged. It’s fundamentally wrong that our profession refuses to embrace rehabilitation in this way.

We wish our newly elected regulators well. Their unselfish offer to serve is very impressive. I urge them to never lose touch with the impact of their policies on the lives of those they govern, including the ones who didn’t have enough interest to vote.  

For more, see "Benchers ponder implications of LSUC vote."

William Trudell is a Toronto defence lawyer and chairman of the Canadian Council of Criminal Defence Lawyers.

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