Speakers Corner: Whose law society is it?

Thirty-four per cent of eligible lawyers voted in the last Law Society of Upper Canada bencher election.  We should be very concerned if this is a reflection of the interest that we have in our regulator.

In a recent Maclean’s article (Feb. 23) “A Closed Society,” the erosion of professional self-regulation is discussed and stark predictions of its demise are presented.  It is suggested that our law society may be unsuccessfully staring at an international trend away from self-regulation.

The article quotes from a study by legal history professor W. Wesley Pue at the University of British Columbia as follows: “‘Even the most cursory review of bencher’s election campaign statements in Ontario during the 1990s and early 2000s reveals a remarkable commitment to protect lawyer’s interests,’ for example, by keeping members’ fees low.”

Indeed a review of some of the most recent bencher election platforms illustrates similar promises for the electorate. So if the benchers’ interest is in protecting our members, why the yawning interest in voting?

I suggest it is because the law society is inherently conflicted. It is indeed time to be rethinking and debating governance and the role of benchers.  The stakes are indeed high for benchers as pointed out in Law Times in the March 9 edition.

The reality is that the law society is not there for its members but to regulate its members.  It is increasingly perceived as doing little or nothing for the struggling practitioner even in a collapsing economy.

I have to admit I wasn’t getting it.  I have written in this space before about the need to help the profession including a strange idea for an ombudsman for the members (see below).

I was reminded recently that the law society is there to regulate not necessarily to educate, or embrace its members.  These tasks are seen to be the responsibility of outside organizations such as the Ontario Bar Association, or The Advocates’ Society, or the Criminal Lawyers’ Association.

The law society is keenly aware that it is answerable to the public, hence the worship at the altar of transparency, openness, and publication of discipline proceedings. 

This is further witnessed by the demise of admonitions (finding of misconduct but no publication) increases in regulatory hearings (open to the public but no finding of misconduct) and I would suggest an erosion of the use of the invitation to attend option (a closed-door chat . . . rather than a conduct application).

I suspect that as the law society shifts away from protecting its members to protecting the public the electorate’s interest will continue to wane.  Most practitioners are seemingly unaffected by and do not need to worry about being disciplined, therefore the law society becomes irrelevant to them.

Recently, new procedural rules were passed in an attempt to be more efficient, more focused, more “expedient.” Some of the changes however, are of real concern with deemed admissions, arbitrary restrictions on examination and cross-examination, and unbalanced cost provisions.

Also, recently the benchers unanimously approved expanding the summary hearing procedure.  A recent newspaper article reported that according to a subcommittee report the summary process had proven to be “effective.”

“It provides an efficient process for addressing cases where the issues are narrowly defined and focused and where revocation of a licence (disbarment) is not sought as a remedy.” This approach misses the point.

Revocation is reserved for the worst cases but a discipline record is forever whether it is at a summary hearing or in front of a whole panel.  A reprimand or suspension is a public finding of misconduct reported in the Ontario Reports with no pardon . . . EVER!

Widening the summary hearing net may be expedient, may get lawyers’ attention but let’s not pretend that it doesn’t hurt. The small community newspaper that runs the story as big news doesn’t discriminate between summary hearings and substantive ones.

The fact is, that most lawyers who get into difficulty need help.  They are often all alone in their practice and almost always unable to ask for help and admit mistakes.

The law society needs to recognize this and do something about it.  One of the calling cards of self-regulators is the “see how tough we are on ourselves approach.”  This can drive lawyers away from opening the letter from the law society as opposed to eagerly awaiting it.

There is something very simple that the law society could do.  When the investigation department decides to act on a complaint, it would be helpful to advise the lawyer in “clear” language not only that they have a duty to co-operate but they are encouraged to consult counsel before doing so.  Many complaint letters go out demanding co-operation and threatening prosecution for non-compliance.

The accusatory and threatening letter from our regulator is unnecessary and unhelpful.
The law society has recently revised its information package. 

This is what now appears under the “duty to respond” section: “Most lawyers and paralegals do not hire a representative when a matter is in the investigation stage but if you do, you still must respond promptly to our requests for information and continue to co-operate with the investigation. 

The obligations to respond and co-operate are your personal, professional obligation and are not avoided by retaining a representative.”

Does the law society not trust lawyers to give advice to lawyers? It could be very simple, perhaps the following: You are being investigated and must co-operate. You have the absolute right to consult with counsel and we urge you to do so. What would be wrong with that approach?

So much time, abuse, reticence, delay, procrastination, fear, and mistrust would evaporate. Self-regulation would live on and perhaps even be strengthened.

I suggest that responses would be more focused, indeed even “expedient” if help was encouraged and problems addressed in the front end, in a less litigious manner. Moreover, some investigations take an inordinate amount of time even after full responses, likely because of the workload of the investigations branch.

Consequently, oftentimes lawyers under investigation suffer enormous damage to their reputations and livelihood long before an actual hearing.

 This is especially true in the mortgage fraud files.  Some of the files may consume years from complaint to hearing.  Even if a lawyer is found not to have been a knowing participant, lending institutions have blacklisted them long before that, often ruining their practices irreparably.

There is no question that there are some lawyers who lack integrity and have forfeited the right to practise.  We often hear that professionals have been given much and do not deserve as much sympathy as the less fortunate in our society.  There is no question that the impact of misconduct can be widespread and painful to victims.

I suggest however that the majority who get into trouble are much more than their worst mistakes and need help. The issue is whether we can continue to self-regulate and swim against a tide.  In order to do that, we need our profession to support its benchers.   More than 34 per cent of us need to vote.

That will not happen if the law society is seen to be unhelpful, even irrelevant.
I have an idea.  What about an ombudsman for the members, a respected senior person with a small staff, paid for by the law society, in the law society, but not of the law society?  This office could confidentiality offer assistance, problem solve, provide guidance, and perhaps recommend counsel to lawyers to help address problems before they explode.

I suspect that if there were merely 100 calls in a year to the ombudsman, at least, 34 per cent of the problems would be resolved in the front end.  This would result in enormous cost savings to the society and face-saving for the member and the profession as a whole. I further suspect that in future elections we may even see 66 per cent of eligible voters expressing their confidence in their regulators.

As the law society engages in its comprehensive study of its governance structure, it should take the opportunity to examine and be honest about its
essential mandate before it is too late.

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

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