Speaker's Corner: A lawyer’s call for a fairer, more transparent law society

The end of summer for many in our profession marks a new beginning with fresh ideas, new approaches, and often a resolve to do things differently.

Not only individuals, but governments and institutions — such as our courts — open new sessions with renewed energy and mandates for change.

Perhaps this should also apply to the Law Society of Upper Canada in its responsibility as our regulator as we move into another fall and a return to work.

There’s a remarkable opportunity for change at the law society with the chief executive officer now firmly in place, a new treasurer, and revamped committees with new benchers taking on fresh responsibilities.

Moreover, there’s an acute need for new approaches at our law society as it grows bigger, more expensive to run, and, in many ways, becomes a stranger to its members.

The expenditures on professional regulation are staggering. In 2006, the figure was $13.3 million. In 2011, it increased to $21.2 million. The 2011 annual report notes expenses increased by $1.2 million from 2010-11.

The 2011 budget envisaged these expenses increasing for the year in response to the increasing number and complexity of complaints and the requirement for additional resources in the investigations and complaints resolution areas.

This is a fantastic sum of money that we can no longer afford. These figures could decrease significantly through new approaches to discipline.
There are many potential changes that would help. I have a number of suggestions.

First, we need a member’s representative or some sort of mentor in residence. I suggest a pilot project setting aside approximately $250,000 to set up this office.

Create the position of mentor in residence and then hire a retired judge, a retired senior member of the bar or a former bencher. Provide infrastructure support and allow the person to be a catalyst as a mentor clothed with confidentiality when necessary.

If the profession knew there was such an office, I suggest that some people in trouble might reach out and receive guidance before their world collapses with the consequent risk to clients.

Licensees could turn to experts, mentors or counsel in the profession who could assist and intervene when necessary.

If one troubled licensee accessed this service and was thereby able to avoid a lengthy discipline process, the cost savings in investigations, prosecution, and benchers’ time would be significant.

Indeed, one mortgage fraud prosecution averted by early intervention and assistance could likely pay for this project for a year. I envision this officer performing another function: representing the members’ interests at the proceedings authorization committee.

While the law society promotes and insists on the transparency of its processes for the public, internal transparency is often missing. In fact, there’s no representative before the proceedings authorization committee for any licensee.

The committee represents the first time benchers are involved in the discipline process and are able to review the findings and recommendations from the professional regulation department after an investigation is complete. Oftentimes, the committee authorizes a more serious allegation than the investigation supports.

If the licensee has representation, counsel may try to make written submissions to the committee through the process. Currently, there’s no assurance the committee will receive them and not edit them.

The committee is akin to a grand jury. But the licensee never gets to see what the law society sends to the committee or its representations to it.

The reputational and financial consequences of a committee authorization are enormous, yet the licensee has no participatory rights in the process and there’s no mechanism to hold the law society to account if the committee is misinformed.

If the law society doesn’t put in place greater procedural rights leading up to the committee authorization, the courts will soon demand them and, I suspect, the public perception of the LSUC’s ability to govern itself will suffer.

Second, the law society should provide duty counsel. The number of unrepresented licensees who appear before hearing panels is embarrassing. Many people can’t afford it. Others are too ashamed to ask for help.

The law society relies on volunteer duty counsel, both for proceedings management conferences and hearings. Why can we not take a portion of the professional regulation expenditures and hire duty counsel?

I believe the cost savings would be enormous. It’s obvious that many lawyers need help. Permanent duty counsel could provide it.
Third, the law society needs to be frank and clear with its members under investigation.

It’s time that the letter sent out by the investigations department announcing that a licensee is under investigation clearly indicate that the investigation could result in discipline proceedings.

The LSUC should also recommend consulting counsel in the letter itself and not bury the suggestion in an enclosed pamphlet.

Many people have asked for this simple clarification for several years. The law society still resists it. If licensees under investigation know what’s at stake, they’ll likely seek help and the savings would be demonstrative.

Fourth, we need to examine summary proceedings.
The law society often institutes summary hearings for failing to respond to an investigator’s requests.

This fast-track provision can result in a professional misconduct record and often a suspension. That’s the same penalty that may result from a substantive prosecution.
This is unfair. There are many reasons other than wilful refusal to engage for a licensee’s failure to co-operate.

If the letter encourages people to seek counsel, many of them will do so. Many people suffer from collapsed health, depression, denial, emotional problems, and fear. Some people from different cultural backgrounds don’t understand the consequences.

Their law society should encourage them to seek help and thereby give them a chance before prosecuting them for a failure to respond and imposing a record with no pardon.

The last point raises the question about the need for a review process for a pardon or a record suspension. Why should licensees not have an opportunity to purge their discipline record after a period of time?

Surely, our profession should encourage and recognize rehabilitation and offer some review of the finding of professional misconduct or conduct unbecoming.

The justice system makes remarkable efforts at front-end management, focused prosecutions, and mediation to control spiralling costs. The law society investigative process doesn’t reflect that trend.

There seems to be a culture of rigidity that results in expensive and unnecessary prosecutions with careers destroyed by agonizing delays and public dissemination of allegations long before a finding.
Moreover, the financial waste is unnecessary.

We can do so much better. A new season is upon us. So why not try some new approaches?

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

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