A recent Toronto Star report on lawyers who steal money from clients, which says lawyers are getting "tender treatment" under the "protective shield" of the Law Society of Upper Canada, is a complete straw-man argument, says LSUC Treasurer George Hunter.
"That upsets me because it's as if somehow there was an advantage that the law society was trying to give to lawyers," Hunter told Law Times.
"It's not that at all. The law society has as much, if not more, desire to rid itself of bad apples. Why? Because of exactly what appears in these articles. We don't want people in our membership who are abusing trust. They bring disfavour to our profession and our society."
The article in the Nov. 12 edition of the Star looked at 105 cases over the past five years in which the law society found lawyers guilty of theft, fraud, forgery, or breach of trust and found that 90 were not charged criminally.
The authors of the article state the main reason for this is s. 49.12 of the Law Society Act, which gives the law society the power to review, audit, or seize a lawyer's files as part of a spot audit or full investigation. Since those files are protected by solicitor-client privilege, the law society rules state the information cannot be voluntarily passed on to a third party.
Hunter says while that's accurate, there's nothing to stop a complainant from going to the police and filing a report. If the police have enough to go on, they can get a warrant and conduct their own investigation.
"We're not against co-operating with the police. We encourage as a matter of course complainants who have been the subject of what might be criminal conduct to go to the police with their rendition of the events," Hunter says. "The law society wants to co-operate to deal with bad apples but we have to deal with them in a certain context."
Toronto criminal lawyer William Trudell, who routinely represents lawyers at discipline hearings, says the notion that lawyers are given soft treatment by the law society is not the case at all.
"I think The Toronto Star picked a couple of cases and a couple of people who were upset, justifiably, and suggested that lawyers get away with it, which is not my experience, not the case at all," he says.
"I think the law society is really, really aware of being a self-regulating profession so they take things very seriously. I think as somebody who's over there a lot, that they're harder on us oftentimes because we self-regulate. I don't accept that at all. I think that there are a lot of cases before the law society, the law society does a good job, depending on how you look at it, in prosecuting lawyers."
He notes, for example, that over the past year, the law society has put a lot of energy into investigating mortgage fraud.
"Bad cases make good press but quite frankly I think the public would be very
satisfied to know how seriously the law society takes the prosecution of its members," Trudell says. "You don't have to be disbarred, you can be just disciplined, and trying to pull yourself up again is really tough.
"Lawyers make mistakes like everybody else. They fall upon hard times, they get in over their heads, they have problems in their families, they make all the mistakes that everybody else makes."
Trudell calls the Star's assertion that the law society's confidentiality rules impede police investigations untrue. In fact, he recently represented Erin, Ont., lawyer Gordon Campbell before both the Ontario Court of Justice and an LSUC discipline panel. Campbell pleaded guilty to misappropriating almost $1.4 million from clients and was disbarred on Oct. 14. He was found criminally guilty in a Guelph, Ont., courtroom on Oct. 24.
"I think at one point along the way the police were looking for the law society's files but the law society hadn't delivered them, I don't think they were finished with them, quite frankly," says Trudell. "I know there was a bit of a hurdle but we got over it."
Hunter says that scheduling information on upcoming
discipline hearings as well as the reasons for decisions are available for the public, including the police, on the law society's web site. He says reasons for decision are released 30 days after the hearing to allow for the member to appeal.
However, the reality is that getting reasons for decision on particular cases can often take two to three months after a case has been heard.
"I don't think there are any inadequacies in that regard," says Hunter. "Anybody from the media, the public, the police authorities, whoever is interested in our processes can have complete access. I'm not sure there's much to be changed in that regard.
"Normally the reasons are not published until the appeal period has transpired," he says.
Malcolm Heins, CEO of the law society, says while there is a 30-day prohibition on the publication of the reasons for decision, anyone can call the LSUC and inquire about the result of a recent hearing.
A follow-up editorial in the Star says that the 40-member investigative unit of the law society is unprepared to handle the 900 or so complaints they receive each year, noting that some investigations can take three years or more.
Heins and Hunter disagree. First of all, says Heins, "some of the cases they reported on were old cases and not reflective of current standards."
Hunter says the investigative unit has improved dramatically over the past several years and, in fact, there are 100 people (25 per cent of the LSUC's staff) who are involved in complaints, investigations, and discipline activities. As well, in 2006 about 20 per cent of the budget will be allocated to complaints, investigations, and discipline activities.
Part of Attorney General Michael Bryant's recently introduced access to justice act, which just passed first reading, would amend s. 49.12 of the Law Society Act to provide an additional exception to the confidentiality requirement.
"The proposed amendment would permit the law society to disclose information obtained during an audit, an investigation, review, search, seizure, or proceeding if there are reasonable grounds to believe that if the disclosure is not made there's significant risk of harm to the public and making the disclosure is likely to reduce the risk," says AG spokesman Brendan Crawley.
Crawley says other self-regulated professions are not required to hand information to the police voluntarily, and the law society's powers couldn't be exercised if its members viewed the law society as an arm of the police.
"Although it's important to provide disclosure in certain circumstances it's also important to maintain the law society's duty of confidentiality as a regulator," he says.
"The law society's role is to regulate lawyers in the public interest, not to act as a criminal investigative body. Simply placing a requirement on the law society to share all information with police would put the duty of confidentiality at risk, which would not be in the public interest."
Heins says the proposed amendment is to prevent harm to the public, including bodily harm or death.
"If we come across information that should go to the police to prevent harm to the public, we are entitled to do so," he says.
According to the Canadian Bar Association's futures committee, lawyers have seen a dramatic decline in their prestige, which has fallen faster than any other occupation's over the last 20 years. Articles like the one in the Star certainly don't help, say lawyers.
"There's this idea out there that we're a secret society," says Trudell. "I spend most of my life these days fighting that. There's no question about it that that might be an image that somebody portrays in the press. Not the case at all."
Hunter says lawyers he has spoken to about the article are dismayed at the failure of the Star to distinguish between the society's role as a regulator and the constabulary's role as criminal prosecutors.
"They feel that that failure is most unfair," he says. "The fundamental problem here is that there's a misapprehension or a misunderstanding or a lack of understanding about the role of an independent bar in our society. That's the fundamental reason why these misunderstandings occur.
"We have to have an independent legal profession to ensure that people, especially when they come into conflict with the government, are represented by independent lawyers — lawyers who are not regulated or controlled by government," Hunter says.
"The flip side of that is that as a self-governing society we have to do that in a manner that's consistent with the public interest and we strive to do that. Like any organization we can always do better, but I think it's that fundamental that isn't understood, or role that we have that isn't understood."