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Whose law society is it anyway — redux

|Written By William M. Trudell - For Law Times

In late spring, Convo-cation, after receivingtwo reports, passed new measures that materially change aspects of thediscipline process for Ontariolawyers. Although they are significant changes, it is interesting thatmeaningful consultation outside the Law Society of Upper Canada does not seemto have occurred.

In the first report, the professional regulation committee recommended changes in four areas:

I. Amendments to the invitation to attend (ITA) process

Invitation to attend resolutions (the member is invited in to discuss the conduct with benchers as opposed to a discipline hearing being authorized) have always remained private.

Historically, previous ITAs were not disclosed to the proceedings authorization committee (PAC), which considers new conduct allegations. As a result of the report's recommendation, previous ITAs now can be considered by PAC in deciding whether to authorize a new complaint.

Some may suggest that this makes sense as it may disclose a pattern or predisposition to certain behaviour; nevertheless, it may clearly change the PAC's perception of a member. Previous ITA dissemination to the PAC must be restricted and relevant to the new issues before PAC.

II. New regulatory hearings

Responding to the director of professional regulation's identification of gaps in the law society regulatory process, the professional regulation committee decided to fill one.

The ITA process is private; however, the law society noted there may be issues of professional conduct that may not merit a conduct application but should be publicly noted to "illustrate its public accountability as regulator."

In this light, Convocation adopted a new procedure, the "regulatory meeting," a process similar to an ITA but including the ability to disclose publicly the fact that the particular conduct has been addressed and dealt with.

For example, the law society identified civility in the profession as an example. The report states, "In order to maintain public confidence that the society is successfully fulfilling its mandate it must not only take action but must be seen taking action against uncivil lawyers."

The law society has become overly sensitive to public scrutiny and even if this hearing is not disciplinary per se, the member must admit the conduct and this may prove to be a distinction without a defence in a small community.

III. Amendments to interlocutory suspension procedures

The society has approved more expeditious proceedings for interim suspensions pending a conduct application, in emergency situations.

New notice provisions, including ex parte applications in some cases, and single bencher hearings have been introduced.

IV. A new summary hearing process

Perhaps the most dramatic change is the new provision for a summary hearing.

This proposal would see an expedited process before a single bencher for certain types of misconduct: failing to maintain financial records as required by the by-laws; failing to respond to inquiries from the law society; and failing to co-operate with an audit, investigation review, search, or seizure under the Law Society Act.

This change is significant and full of peril for practitioners.

The requirement to respond and co-operate with our regulators must not ignore the right of the lawyer under investigation to get legal advice. Too often guilt is presumed at the front end. Many lawyers under investigation without assistance do not know how to respond and often freeze.

Moreover, these response problems are often tied to a bigger, more substantive issue.

Failing to maintain financial records, in itself, may be a standalone area that a summary process may assist. Nevertheless, speedy authorizations and hearings for failing to co-operate with investigations and respond to inquiries from the law society are not fair.

The law society has introduced procedures with no provisions for helping the member.

Members under investigation should have the right to consult with counsel before they respond, co-operate, or submit to the investigation process. This should be clearly understood and emphasized by our regulators.

Also in the spring, the law society's tribunals task force reported to Convocation on their work on the tribunals process and its procedures.

Convocation tabled for further study a far-reaching examination of different models for discipline tribunals; nevertheless, a number of changes to the existing process were approved.

Convocation adopted almost all of the task force's wide-ranging recommendations (which included, quite interestingly, mandatory adjudicator training for benchers and an adjudicator code of conduct).

Of real concern to the profession should be the recommendation that the law society publish upcoming hearings on its Web site. Further, Convocation approved the posting of tribunal decisions on the Web site for three years, and thereafter the finding and penalty against the member would remain on the Web site, with the decision available, for example, on Quicklaw.

It is incredible that the task force makes no provisions for the removal and eventual purging of a member's discipline even in minor cases. A member who receives a reprimand will apparently remain on the same Web site for as long as the disbarred.

There is no pardon from the law society.

It is disappointing and quite interesting that at Convocation on May 26, a motion to consult the profession on the recommendations of the tribunals task force seems to have been defeated 39 to 3.

It is of more concern that in an age of ADR, emphasis is not given to mediation. More than ever before we need an independent ombudsman at the law society for the members: someone they can turn to for guidance, help and early intervention.

William M. Trudell is chairman of the Canadian Council of Criminal Defence Lawyers and set up the duty counsel system at the Law Society of Upper Canada.

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