Our new Law Society of Upper Canada benchers have been selected. The candidates advanced many important issues. Nevertheless, I want to suggest that perhaps the most important role our new benchers must perform is that of regulation.
A balanced discipline process is absolutely key to our respect for our law society. As of late, sensitivity to the public perception has risen to the top of the law society’s agenda, often at the risk of severely damaged reputations with the publication of not only who has been disciplined, but who is about to be disciplined and who is under investigation.
There has been an incredible, and some have argued over the top, investment in rigorous prosecutions of lawyers involved in mortgage fraud. There seemingly is no middle ground. The society asks for, and seems to receive, disbarment or effective disbarment (now called revocation as a result of changes in early May - we have become licensees) by lengthy suspensions of all who are caught in the web.
Whether a young lawyer is duped by rogues, or an older experienced lawyer is betrayed by sophisticated and optically honest realtors, businessmen, mortgage brokers, or bankers, the law society takes the position that there is only one result. This leads to contested, time-consuming hearings and appeals that often surround one issue: knowledge.
Although many have suggested a more enlightened approach to separate those who don’t deserve to be practising from those who made mistakes and need education, it has received little or no audience from the decision makers at the law society.
So the financial costs keep mounting. Expensive real estate experts look at the paper but never speak to a human being and never examine the circumstances of the parties, yet continue to opine that the lawyer failed miserably.
Despite the fact that, since 2004, a new world of educational programs have identified and alerted the profession to the flags of fraud, solicitors are being judged by pre-2004 standards.
The banks, at least until the Lawrence v. Maple Trust Co. decision, ignored due diligence, shoveled money out their doors, wrote off losses often occasioned by in-house corner cutting, then complained that the law society must control its members and moved on. But the law society remains stuck in costly prosecutions.
Moreover, our benchers must be aware of and do something about the unbelievable organized black listing by lending institutions of lawyers who are merely under investigation, let alone found guilty, of professional misconduct.
Surely, as lawyers in an age of mediation, we need to at least attempt to find a better solution to the backlog and considerable waste of time, money, and careers.
I hope the new benchers bring new ideas and an enlightened approach to this expensive time bomb.
Some investigations at the law society presume guilt. Lawyers are awful at solving their own problems and often react to investigators’ inquiries without thinking and without knowing what is at stake.
The results are disastrous. I hope the new benchers realize that the duty to co-operate with our regulators must be tempered by an understanding that solicitors have a right to protection from angry clients, litigious colleagues, professional complainers, and unenlightened media headlines.
Solicitors have to understand that the letter from the society is often the first piece of wood in the plank that they eventually walk on. There needs to be more ongoing educational programs on ethical responsibilities and how to avoid problems or at least how to handle them properly.
These new benchers walk in the door with the regulation of paralegals. Education programs are key. Mediation approaches should be carefully examined and the rules of engagement crystal clear.
The cost of defending oneself at the law society, with so much at stake, is often prohibitive. Sadly, despite the best efforts of volunteer duty counsel, too many lawyers are unrepresented at hearings. Moreover, the cost of an appeal (before “five” busy benchers) with the necessity of expensive transcripts, may be an inherently unfair disincentive.
Are we mediating enough cases at the law society? I hope the new benchers will examine these issues.
We want to self regulate; it is key to an independent bar. But the need to protect the public must be viewed along with the damage that can be done to lawyers who make mistakes, are sometimes found either completely or relatively innocent, but who have already been ruined by innuendo, press coverage, and black listing in the community.
Moreover, a discipline record is forever. There are no pardons at the law society.
Law schools should be encouraged to ensure that competition for the best jobs does not overpower the need to understand ethical responsibilities and service to the client.
Furthermore, the law society’s ethical education curriculum is wanting. Experimentation with the licensing process and multiple-choice examinations cannot replace mentoring programs and real and meaningful lectures of what happens out there.
We have handed 40 new benchers important responsibilities and we wish them well. Nevertheless, they must balance the public’s right to know that regulation is taken seriously with the need to protect and assist the members who elected them. It is our law society after all.
William M. Trudell is chairman of the Canadian Council of Criminal Defence Lawyers and does considerable discipline work.