The Law Society of Upper Canada recently approved an expansion of its practice review program, in hopes of preventing and dealing with competence issues in the early stages of private practice, specifically targeting the first eight years after call to the bar.
Laurie Pawlitza, chairwoman of the society's professional development, competence and admissions committee, noted at the June Convocation that years one to eight of private practice have been chosen partly because of discipline statistics going back to 1965. Files showed that six to eight years after call in particular, there was a spike in the number of discipline files recorded.
In 2005, the law society completed 79 focused practice reviews, aimed at tackling existing competence problems. As part of the expansion, the committee is proposing to combine this remedial focused review approach along with a more preventative review. The plan is to increase the total number of reviews to 250 in 2007 and 400 in 2008, reaching a level of 500 reviews in 2009 and beyond.
Toronto Bencher Earl Cherniak said, "The profession, as we all know, is getting younger and younger. We're graduating 1,100 new lawyers. Some of them aren't all that young, but they're all inexperienced, so we have a much larger percentage every year of relatively inexperienced lawyers. And many of them go into private practice, have a great deal of trouble finding any kind of mentorship.
"I suspect that the kind of practice review that is outlined in this report will be welcomed by the members who are subject to it, in the same way that the audits are welcomed, because the people that do them are helpful. It's not invasive. It is designed to be helpful to the members." he added.
Concerns were raised by Gary Lloyd Gottlieb about the possibility that this review program might begin by focusing on young private practitioners and be expanded to include all solo practitioners.
The expansion of the practice review program is also designed to complement the society's existing spot audit program, which began in 1998 and targets roughly 1,000 mainly higher-risk practices a year. According to the committee, the spot audits have resulted in a decrease in the number of sole practitioners who have failed as well as a reduction in the nature of financial complaints.
The committee chose to expand the practice review program because of the success of the spot audit program. It also expects reviews to be less costly than audits, estimating reviews to cost $39 per member by 2009. Spot audit costs average $89 per member. Pawlitza added there will also likely be additional cost savings from the review program.
Bencher Judith Potter clarified, however, that the committee is making a clear distinction between the new review program and the existing audit program.
"We don't consider this an audit. We've been bandying around the word audit, but it really is not intended to be an audit. It's intended to be the kind of thing that will be beneficial to people in private practice, that will assist them in determining what they could do better that might increase and improve their practices, not only in terms of their administration things, but in terms of their relationships with clients.
"And also, in so doing, it helps to keep them from making the mistakes that may lead to other issues for them."
The benchers also voted to return the issue to the table in the fall of 2009 for a report on the progress of the review program and to identify areas in need of fine-tuning.
In another motion brought forward by Pawlitza and Clayton Ruby, Convocation also voted in favour of changing its policy to open capacity and competence proceedings to the public.
Under the new policy, capacity and competence proceedings would use a approach similar to conduct proceedings, which have been open to the public since 1986. All three types of proceedings would use one set of rules.
"The public, in our view, doesn't see these as distinct and different processes. All they see is there's the law society regulating lawyers," said Ruby.
"They don't divide it up the way we do. The question for them is, am I properly protected from lawyers who can't function?" he added.