Let right prevail

This bencher election is a significantly important one. A self-regulating profession needs regulators who represent a mix of experience, balance, compassion, energy, engagement and a concern for its members.

This bencher election is a significantly important one. A self-regulating profession needs regulators who represent a mix of experience, balance, compassion, energy, engagement and a concern for its members.

The emphasis on transparency, protection of the public, accountability and punishment with no pardon results in huge costs to individual members. Transparency, however, is too often lacking internally. It is time to review the Proceedings Authorization Committee process.

PAC is a small group of benchers handpicked by the treasurer of the day. Much like a grand jury, if you will, the members meet in a bubble impenetrable by any licensee being investigated or their counsel. They function within a closed system informed exclusively by what Law Society of Ontario staff choose to provide. There is no direct accountability to Convocation, the profession or the public.

PAC receives the results of the LSO’s investigation into the alleged misconduct. The memo (PAC memo) upon which it acts is confidential. Licensees never see it. Their deliberations are confidential.

Their reasons for a decision to authorize a conduct application are confidential and not reviewable. There is no record available. Moreover, and of real concern, no one is there tasked to represent and speak for the licensees whose future is at stake.

PAC’s powers and impact are enormously important.

Attempts to litigate and examine the PAC memo or examine the reasons for a decision to authorize have been futile to date.

The bylaws prescribe that the PAC process is confidential and the licensee is not a participant in this process.

Licensees cannot make submissions to PAC as part of its process. The argument is that PAC does not adjudicate.

This seems wrong to me.

Once an authorization is made, the allegations are public. They appear on the tribunal website. They can be the topic of conversations in the local Tim Hortons or be exposed in the media. The taint of guilt is almost assumed. No matter what the result, even if the charges fail, the damage has often been irreparably done.

Lending institutions routinely arbitrarily cut off the use of lawyers facing discipline, potentially destroying livelihoods. Licensees accused of misconduct are unable to hire articling students.

There is no legal aid coverage and no funded duty counsel, so financial ruin is potentially real.

A finding against a licensee, no matter how young or old, lasts forever. There is no pardon in this profession. Does that sound a bit ironic?

We can only hope but never know whether politics, personalities or selective prosecutions were factors in a decision to authorize a conduct application.

It has historically been perceived that PAC is there as a buffer to an overzealous prosecution, yet PAC, in some cases, has rejected a recommendation against a conduct application and authorized one.

We never know whether PAC received all the information it should have received on behalf of a licensee, especially the self-represented, including those with mental health issues.

It makes no sense to rely on the investigative branch to argue a licensee’s cause. In this light, the PAC process must come out of the dark.

There may be simple solutions. There must at least be a record of PAC’s reasons for authorizing a conduct application.

There should be an independent members representative at PAC proceedings to ensure that the licensees’ voice is heard, to probe the memo where appropriate and, if necessary, assist in providing further information.

This is an extension of an ombudsman for the members idea that has been proposed over the years — someone in the law society funded by the law society but not of the law society.

Moreover, it is time for a duty counsel system at the tribunal paid for by our regulators.

Currently volunteer and pro bono, a group of colleagues assist at the Proceeding Management Conferences, the first appearance after an authorization by the PAC.

In certain cases, especially where there may be mental health issues, these volunteer duty counsel assist at Pre-Hearing Conferences (akin to a judicial pretrial held before a single adjudicator and in camera).

The Advocate’s Society provides pro bono duty counsel for summary hearings and in some substantive hearings. However, naturally, duty counsel lawyers do not have the benefit of knowing the entire background of the client and, indeed, the issues that will be raised.

A review of the reported tribunal proceedings in the Ontario Reports shamefully reveals that too many licensees are unrepresented.

How can this be in our profession that we do not have a system in place so that no licensee who cannot afford counsel, who genuinely requires assistance and asks for it, could be left on their own?

Financial constraints cannot be rolled out as an excuse for no duty counsel system.

Self-represented litigants are often unable to focus and misunderstand the issues and lengthy expensive hearings result. Early consultation with counsel will surely assist in earlier resolutions, identifying the strengths and weaknesses of the allegations, assisting in rehabilitation and addressing risks to the public.

Many lawyers and paralegals who face discipline proceedings lack mentors and structures and are often depressed, overworked and in crisis.

I suggest that Convocation establish and fund a duty counsel office at the law society. A clerk, two lawyers, a paralegal and a senior lawyer in charge could make an incredible difference. Moreover, that same senior lawyer could be the ombudsman or mentor in residence, referred to above. The law society motto has been “Let right prevail.”

The secretive PAC discipline process and far too many unrepresented licensees just doesn’t seem “right” to me.

Bill Trudell is a veteran criminal lawyer in Toronto who often represents licensees at the Law Society of Ontario.

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