Issues around lawyer discipline frequently garner headlines. In this issue, Law Times has its third piece in a four-part series examining lawyer discipline. The series has illuminated the skyrocketing number of interlocutory suspensions sought by the Law Society of Upper Canada since 2012.
While such a move is arguably prudent when it comes to protecting the public interest, some lawyers have pointed out it could unfairly tar some lawyers accused of wrongdoing and have practice-ruining results. Lawyers who defend practitioners in discipline proceedings say part of the test to determine whether a lawyer should receive an interlocutory suspension is too easy to meet and that tribunal panels have been too quick to rely on it.
“While many suspension orders will, in retrospect, be seen to have been the correct choice, some will not. An increased number of licensees are at risk of paying this necessary price,” said Malcolm Mercer, chairman of a Law Society Tribunal hearing decision panel, in Law Society of Upper Canada v. Ejidike, 2016 ONLSTH 69.
“While vigilant public protection is necessary, it is important to ensure that the conduct of licensees under interlocutory suspension is indeed promptly investigated, and where appropriate, prosecuted. As well, there is value in better assuring during a suspension that the suspension continues to be in the interests of justice,” according to the ruling. In other words, balance — not blunt instruments.
When there is a sea change in any policy, pushback is to be expected. In the case of interlocutory suspensions, the LSUC should stay well attuned to ensuring its investigative resources are adequately staffed, while ensuring the appropriate remedy is sought while a lawyer is under investigation.