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A war on sole practitioners

|Written By Gary Lloyd Gottlieb

In theory, the Law Society of Upper Canada regulates the entire legal profession in the public interest, but when I look at reality I have my doubts.

For example, the Integrated Practice Review Program recently approved by Convocation was a misnomer. A more accurate title would have been the Integrated Practice Review Program of Sole Practitioners.

The practice reviews that have now been instituted will not apply even-handedly across the entire spectrum of practitioners in private practice, but will apply to sole practitioners who have been in practice from one to eight years after their call to the bar. Undoubtedly the program will, in due course, be applied to all sole practitioners.

I can understand the justification for audits, whether they be for books and records or for practice management, where there are indicia that indicate an audit would be justified. Where filings are late, non-existent, or show deficiencies, or where there are a number of complaints or negligence claims, I can understand putting a sole practitioner under the society's microscope. It is not reasonable, however, to tar all sole practitioners with the same brush when most practise conscientiously and competently and without complaints or claims.

An enormous amount of money and many bencher hours were spent on the society's sole practitioner and small firm task force, and much more money and time will be spent in the implementation of the task force's recommendations.

The LSUC is perturbed that fewer and fewer lawyers are prepared to enter sole practice, particularly in smaller communities, because it is sole practitioners who, for the most part, serve the ordinary public and make access to justice a reality for most of the citizens of our province. It is no great mystery, however, why lawyers are more and more loath to enter sole practice when the full burden of the society's regulation is going to fall on their shoulders, not to mention the weight of the society's annual fees.

As I perused the basic management checklist that will be provided to practitioners who will be practice-reviewed, two things became apparent. While much of the checklist is a reminder of good practice, there are many areas of the checklist that show no conception of the reality of sole practice, either of the nature of the practice itself or of the clientele served. And anyone with knowledge of the bureaucratic mentality knows that when a practitioner answers no to a question to which a yes is expected, he or she will automatically be put on the defensive, even though a negative response may be entirely justified.

So if you don't have a fixed hourly rate and a fee schedule setting out hourly rates, block fees, and disbursements, be prepared to justify why.And you will undoubtedly relish telling the law society for the record if you enjoy the practice of law, what areas of your practice you enjoy most, and what areas least, if you are satisfied with your professional income, any concerns you have about areas of your practice, whether you have a personal financial or retirement plan, whether you take a regular vacation and how much and for how long, and if you experience stress and how you deal with it.

Providing education and resources to encourage good practice is one thing, but over-regulation and intrusiveness is quite another. The law society, however, is mindful of the economic cost of this dubious exercise. Through "economies of scale and efficiencies obtained by using a combination of in-house and external reviewers," they anticipate whittling down the cost of an integrated practice review from $5,300 to $2,400.

Also, if you are selected for both an audit and a practice review, with your consent the two appointments will be scheduled for the same time. This will be like having an endoscopy and colonoscopy simultaneously. A real time-saver!

Of course, if you are a big-firm practitioner, you won't have to worry about your practice being put under a scope. Your annual fees, the bill for which you likely don't see as it's paid by your firm's accounting department, will simply reflect the added cost of the society's sole practitioner regulation.

Gary Lloyd Gottlieb, a Toronto sole practitioner, is a bencher of the Law Society of Upper Canada. His address is

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