In late spring, Convo-cation, after receivingtwo reports, passed new measures that materially change aspects of thediscipline process for
In the first report, the professional
regulation committee recommended changes in four areas:
I. Amendments to the invitation to attend (ITA)
process
Invitation to attend resolutions (the member is
invited in to discuss the conduct with benchers as opposed to a discipline
hearing being authorized) have always remained private.
Historically, previous ITAs were not disclosed
to the proceedings authorization committee (PAC), which considers new conduct
allegations. As a result of the report's recommendation, previous ITAs now can
be considered by PAC in deciding whether to authorize a new complaint.
Some may suggest that this makes sense as it
may disclose a pattern or predisposition to certain behaviour; nevertheless, it
may clearly change the PAC's perception of a member. Previous ITA dissemination
to the PAC must be restricted and relevant to the new issues before
II. New regulatory hearings
Responding to the director of professional
regulation's identification of gaps in the law society regulatory process, the
professional regulation committee decided to fill one.
The ITA process is private; however, the law
society noted there may be issues of professional conduct that may not merit a
conduct application but should be publicly noted to "illustrate its public
accountability as regulator."
In this light, Convocation adopted a new
procedure, the "regulatory meeting," a process similar to an ITA but including
the ability to disclose publicly the fact that the particular conduct has been
addressed and dealt with.
For example, the law society identified
civility in the profession as an example. The report states, "In order to
maintain public confidence that the society is successfully fulfilling its
mandate it must not only take action but must be seen taking action against
uncivil lawyers."
The law society has become overly sensitive to
public scrutiny and even if this hearing is not disciplinary per se, the member
must admit the conduct and this may prove to be a distinction without a defence
in a small community.
III. Amendments to interlocutory suspension
procedures
The society has approved more expeditious
proceedings for interim suspensions pending a conduct application, in emergency
situations.
New notice provisions, including ex parte
applications in some cases, and single bencher hearings have been introduced.
IV. A new summary hearing process
Perhaps the most dramatic change is the new
provision for a summary hearing.
This proposal would see an expedited process
before a single bencher for certain types of misconduct: failing to maintain
financial records as required by the by-laws; failing to respond to inquiries
from the law society; and failing to co-operate with an audit, investigation
review, search, or seizure under the Law Society Act.
This change is significant and full of peril
for practitioners.
The requirement to respond and co-operate with
our regulators must not ignore the right of the lawyer under investigation to
get legal advice. Too often guilt is presumed at the front end. Many lawyers
under investigation without assistance do not know how to respond and often
freeze.
Moreover, these response problems are often
tied to a bigger, more substantive issue.
Failing to maintain financial records, in
itself, may be a standalone area that a summary process may assist.
Nevertheless, speedy authorizations and hearings for failing to co-operate with
investigations and respond to inquiries from the law society are not fair.
The law society has introduced procedures with
no provisions for helping the member.
Members under investigation should have the
right to consult with counsel before they respond, co-operate, or submit to the
investigation process. This should be clearly understood and emphasized by our
regulators.
Also in the spring, the law society's tribunals
task force reported to Convocation on their work on the tribunals process and
its procedures.
Convocation tabled for further study a far-reaching
examination of different models for discipline tribunals; nevertheless, a
number of changes to the existing process were approved.
Convocation adopted almost all of the task
force's wide-ranging recommendations (which included, quite interestingly,
mandatory adjudicator training for benchers and an adjudicator code of
conduct).
Of real concern to the profession should be the
recommendation that the law society publish upcoming hearings on its Web site.
Further, Convocation approved the posting of tribunal decisions on the Web site
for three years, and thereafter the finding and penalty against the member
would remain on the Web site, with the decision available, for example, on
Quicklaw.
It is incredible that the task force makes no
provisions for the removal and eventual purging of a member's discipline even
in minor cases. A member who receives a reprimand will apparently remain on the
same Web site for as long as the disbarred.
There is no pardon from the law society.
It is disappointing and quite interesting that
at Convocation on May 26, a motion to consult the profession on the
recommendations of the tribunals task force seems to have been defeated 39 to
3.
It is of more concern that in an age of ADR,
emphasis is not given to mediation. More than ever before we need an
independent ombudsman at the law society for the members: someone they can turn
to for guidance, help and early intervention.
William M. Trudell is chairman of the Canadian
Council of Criminal Defence Lawyers and set up the duty counsel system at the
Law Society of Upper Canada.
