The Law Times published a letter from William Trudell on the Speaker’s Corner column of the Sept. 17 issue of the paper. Trudell made a number of assertions in regards to the Law Society of Upper Canada’s budget that specifically focused on the increasing costs of regulation.
His assertions are selective and therefore create an unbalanced picture.
For example, Trudell points to increases in budgets between 2006 and 2011 to support his arguments.
What is not included in his analysis, however, is that during this period the law society experienced an overall 23-per-cent increase in the number of cases handled by the complaints departments.
This included an increase in complex and serious investigations leading to prosecutions in areas such as mortgage fraud. This increased complexity has meant that the number of days required for hearings has grown by more than 60 per cent over the last four years.
Additionally, since 2007 the law society has regulated paralegals, leading to a further addition to the budget funded by paralegals themselves. Beginning in the same year, the law society also experienced a significant increase in complaints concerning unauthorized practice, requiring investigation and, at times, prosecution.
Trudell refers to the operations and the processes of the proceedings authorization committee in his comments about the regulatory process. It is a committee established under the Law Society Act to review the results of staff investigations and determine what regulatory action is required, if any.
It does not hold a hearing, nor is it required to do so. Its authority is to instruct staff. One of its functions is to authorize hearings, including conduct hearings. Where a hearing is authorized, the lawyer or paralegal can defend against the allegations with the benefit of full process.
A review of recent decisions shows that in almost all conduct cases, the hearing panel makes a finding of misconduct, an indication that generally the committee’s instructions are well-founded.
Trudell asks the law society to be frank and clear with lawyers under investigation.
In fact, when the law society receives a complaint against a lawyer or paralegal and it is determined that an investigation is required, the licensee is provided with a letter that sets out the allegations in the complaint as well as information about resources, including representation, that are available.
The licensee is also directed to a specific page on the law society web site that provides information about available resources, including help with mental-health and addiction issues.
Trudell states that in cases in which a lawyer under investigation is failing to respond or communicate, remedies other than a summary conduct proceeding should be utilized.
In an investigation, when a lawyer or paralegal is unresponsive, the law society takes a number of steps to contact them before commencing a proceeding on the basis that they failed to respond or to co-operate with an investigation.
These efforts include multiple communications, registered letters, attempts at personal contact, and other means.
Lawyers and paralegals fail to co-operate with or respond to the law society for many reasons, including, in some cases, mental illness and addictions. If the law society becomes aware of an illness, this is taken into consideration in making a determination as to the appropriate course of regulatory action.
However, when a lawyer is completely unresponsive to law society requirements for information, it must proceed to do what is necessary in the public interest and this can include a conduct hearing where appropriate.
Robert G.W. Lapper
CEO, Law Society of Upper Canada